Is It Insubordination or Protected Opposition to an Illegal Directive?
By Ted Olsen
A recent case from South Carolina, Patterson v. Gentiva Health Services, Inc., 2001 U.S. Dist. LEXIS 81043 (D.S.C. July 25, 2011), illustrates how an employee's failure to follow an employer's instructions - long understood to be insubordination, a strong basis for an employee's dismissal - may be protected by public policy, such that the dismissal is a wrongful discharge.
Gentiva, a large provider of home health care nursing, employed Patterson as a registered home health care nurse and assigned him to provide wound care for a patient twice weekly. When Gentiva directed him to stop the care, he continued it, allegedly because he believed the physician order for such care remained in place. His failure to follow instructions resulted in his discharge.
The nurse licensing statutes in South Carolina, as in many states, provide that a nurse may be subject to discipline of his or her license if the nurse "abandon[s] a patient after accepting the patient assignment and establishing a nurse-patient relationship and disengage[s] the nurse-patient relationship without giving reasonable notice to the appropriate personnel responsible for making arrangements for continuation of nursing care." S.C. Code Ann. § 40-33-110(A)(24). There is no indication in the court's decision that the nurse advised Gentiva that its instructions would cause him to violate this statute, but after the fact, the court permitted him to proceed with his wrongful discharge claim that his dismissal would violate the public policy created by the statute.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.
©2011 Sherman & Howard L.L.C. September 1, 2011