Opinion
No. 37628.
06-28-2016
Annemarie MORRISSEY–MANTER v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER et al.
Henry E. Jacobs, Hartford, for the appellant (plaintiff). Christopher A. Klepps, Hartford, with whom was Christopher L. Brigham, New Haven, for the appellees (defendants).
Henry E. Jacobs, Hartford, for the appellant (plaintiff).
Christopher A. Klepps, Hartford, with whom was Christopher L. Brigham, New Haven, for the appellees (defendants).
ALVORD, PRESCOTT and WEST, Js.
Opinion
PRESCOTT, J. In this wrongful termination of employment action, the plaintiff, Annemarie Morrissey–Manter, appeals from the summary judgment rendered by the trial court in favor of the defendants, Saint Francis Hospital and Medical Center, and Saint Francis Care, Inc. On appeal, the plaintiff claims that the court improperly granted the defendants' motion for summary judgment as to four counts of her amended complaint because one or more genuine issues of material fact existed with respect to her claims that (1) an implied contractual agreement between the parties prohibited her discharge without cause, (2) the defendants terminated her employment in violation of an important public policy, (3) the defendants breached the covenant of good faith and fair dealing by terminating her employment in “bad faith,” and (4) the defendants withheld certain medical records and destroyed evidence that would have supported her cause of action. We affirm the judgment of the trial court.
In her complaint, the plaintiff identified Saint Francis Care, Inc., as the parent company of Saint Francis Hospital and Medical Center.
The plaintiff's operative complaint consisted of six counts, including counts for negligent infliction of emotional distress and defamation. The trial court rendered summary judgment as to all six counts of her complaint. At oral argument before this court, the plaintiff stated that the trial court's determinations with respect to her claims of negligent infliction of emotional distress and defamation were not being challenged in this appeal.
The plaintiff included other claims in her statement of issues, but she did not address them in her appellate brief or reply brief. “We are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn.App. 311, 323–24 n. 12, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).
The following facts and procedural history are relevant to this appeal. The plaintiff was employed as a registered nurse at Saint Francis Hospital and Medical Center for thirty-two years. On June 4, 2012, at Manchester Memorial Hospital, a patient was seen for cardiac distress. A temporary cardiac pacemaker (pacer) was inserted into the patient. The patient was then transferred to the emergency department at the defendants' facility, and, from there, into the defendants' cardiac intensive care unit. During the transfer of the patient, an admitting nurse unhooked the patient's temporary pacer from the external pacer box, and the pacer box was returned to the ambulance crew that had transferred the patient. Subsequently, members of the nursing staff at the defendants' facility were unable to connect the patient's transvenous pacer wire to an external temporary pacer box because the defendants lacked a proper adapter.
During this event, the plaintiff came into the room to offer support to the patient's team and to help stabilize the patient. In violation of hospital policy, but in order to assist the medical team, she took a blade and cut a small portion of the plastic covering the end of the pacer wire in an attempt to make the pacer wire fit into the defendants' temporary pacer box. The plaintiff successfully connected the pacer wire to the temporary pacer box, and, at that point, the patient's blood pressure improved and he stabilized.
On June 7, 2012, Gilda Cabral, a nurse manager, met with the plaintiff and discussed a disciplinary action form that had been prepared against her on June 6, 2012. The form, after describing the event as previously discussed, stated that the patient's condition began to deteriorate the morning following his admission to Saint Francis Hospital, and that Dr. Aneesh Tolat, an electro-physiologist, was asked to assess the patient. After assessing the patient, Dr. Tolat determined that the patient was receiving inadequate pacing because the pacer wire may have been compromised and was not stable. Because of this instability, a new pacer wire had to be inserted into the patient through catheterization. According to the form, Dr. Tolat emphasized that “a catheter can never be tampered with. Once it is, even if it seems that the wire is functioning correctly, there is always a question as to the stability of the wire.” (Emphasis omitted.) Furthermore, Dr. Tolat was “very disturbed” by the plaintiff's action, which he characterized as “inappropriate and unacceptable.” On the form, the box labeled “termination” was marked as the appropriate disciplinary step to be taken, and the form concluded: “This action posed a significant patient safety concern, as this action could have had potentially lethal consequences to the patient; since this wire was in place to ensure that the patient's heartbeat was paced correctly. By compromising the wire, this resulted in the patient having to undergo a procedure to have a new catheter inserted. In addition, this action posed a significant risk to the [h]ospital because this action is not within the scope of practice for a [s]taff [registered nurse].” (Emphasis in original.) The plaintiff resigned her position in lieu of termination.
The plaintiff commenced this action against the defendants on August 27, 2012. In her initial five count complaint, the plaintiff alleged breach of an implied contract of employment, violation of the covenant of good faith and fair dealing, wrongful discharge in violation of public policy, negligent infliction of emotional distress, and defamation. On February 14, 2014, the defendants filed a motion for summary judgment, claiming that the plaintiff could not establish the prima facie elements for any of the claims alleged in her complaint. In support of their motion, the defendants filed a memorandum of law, an affidavit by an employee in the defendants' human resources department, copies of two disciplinary action forms against the plaintiff, copies of the defendants' disciplinary action policy and pension plan policy, the plaintiff's responses to the defendants' first set of interrogatories, and an excerpt from the defendants' employee handbook.
On April 15, 2014, the plaintiff filed an objection to the defendants' motion for summary judgment. In support of her objection, the plaintiff filed a memorandum of law, the plaintiff's affidavit, and a copy of the plaintiff's letter of resignation. The court held a hearing on the defendants' motion for summary judgment and the plaintiff's objection on May 5, 2014. At that time, the plaintiff stated that she wanted to amend her complaint to include a claim for spoliation of evidence. The court instructed the plaintiff to file such a request as soon as possible.
On May 21, 2014, the plaintiff filed a request for permission to amend her complaint to add a count for spoliation of evidence, alleging that the defendants had destroyed and altered the patient's medical records, and had disposed of the pacer wire in bad faith. On July 28, 2014, which was the second day of the hearing on the motion for summary judgment, the court granted the plaintiff's request. With the court's permission, the parties filed supplemental briefs and exhibits that addressed the claim of spoliation. The court issued its memorandum of decision on January 5, 2015. The court concluded that the evidence submitted did not support the existence of an implied contract of employment, and, thus, the plaintiff's status was as an at-will employee. The court also concluded that the plaintiff had not established a genuine issue of material fact regarding the prima facie elements for a cause of action for breach of the covenant of good faith and fair dealing, that she failed to cite a relevant public policy that was violated by her termination of employment, and that she failed to establish a genuine issue of material fact regarding the elements of a claim for spoliation because there was no evidence that any medical records had been destroyed or that the pacer wire had been destroyed by the hospital in bad faith. Accordingly, the court granted the defendants' motion for summary judgment as to all six counts of the plaintiff's complaint. This appeal followed.
Before reaching the plaintiff's individual claims, we set forth this court's standard of review in a summary judgment case. “The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17–49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings....
“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent....
“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue.... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant's affidavits and documents.... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.... Our review of the trial court's decision to grant a motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn.App. 638, 645–46, 127 A.3d 257 (2015).
I
The plaintiff first claims that the trial court improperly rendered summary judgment on her count alleging the breach of an implied contract of employment because there was a genuine issue of material fact regarding the existence of an implied employment contract as evidenced by the defendants' “words, actions, conduct [and] course of performance....” (Emphasis omitted.) Specifically, the plaintiff argues that she was not an at-will employee because she was subject to progressive discipline, received merit pay and annual job performance reviews, participated in a 401(k) retirement plan, received verbal assurances of continued employment, and was referred to as “ ‘a team player and devoted to her job.’ ” For these reasons, the plaintiff argues, she could not be discharged without just cause. We conclude that the court properly rendered summary judgment on this count.
The following additional procedural history is necessary for our review of this claim. In support of their motion for summary judgment, as supplemented, the defendants submitted an affidavit, copies of their disciplinary action and pension plan policies, and an excerpt from their employee handbook stating that “[t]he relationship between Saint Francis and its employees is a relationship of employment at will.” The affidavit, signed by Diane Trudeau, a manager in their human resources department, averred that the plaintiff was a noncontractual employee, the defendants adhere to the at-will doctrine in all of their policies and procedures, the plaintiff signed an acknowledgement in 1986 that she received a copy of the employee handbook containing such policies, and at-will employment at the defendants' facility can be documented back to 1992. The policies and employee handbook excerpt that the defendants filed with their motion for summary judgment corroborated Trudeau's statements.
The disciplinary action policy provides that “[a]n employee may be given a Final Written Warning with or without Suspension or be terminated, at any time, with or without notice, for a violation of Organization policy or practice or a significant performance issue.” (Emphasis omitted.) Another policy, titled “Employment at Will,” provides in relevant part: “The purpose of this policy is to affirm that employees who do not have a separate, individual employment contract with the hospital for a specific, fixed term of employment are employed at the will of the hospital for an indefinite period. Employees may resign from the hospital at any time, for any reason, and may be terminated by the hospital at any time, for any reason, with or without cause, and with or without notice.” That policy further provides that “[t]his policy shall not be modified by any statements contained in this or any other employee handbooks, employment applications, hospital recruiting materials, memoranda, or other materials provided to employees in connection with their employment. None of those documents, whether singly or combined, shall create an expressed or implied contract of employment for a definite period or an expressed or implied contract concerning any terms or conditions of employment.” The final paragraph in that policy provides: “Nothing contained in this manual, employee handbooks, employment applications, memoranda, or other materials provided to employees in connection with their employment shall require the employer to have ‘just cause’ to terminate that employee or otherwise restrict the employer's right to terminate an employee at any time or for any reason.”
In her objection to the defendants' motion for summary judgment, the plaintiff did not challenge the existence of the policies as described. Rather, she argued that she had been employed at the defendants' facility for thirty-two years, had been assured that she would remain employed there as long as she did a good job, had received complimentary correspondence regarding her exemplary service, and had been advised that disciplinary action was generally progressive and was a process. Additionally, she alleged that the defendants admitted that they have a matching pension plan contribution in place for all eligible employees. Her affidavit repeats these allegations, although she does not identify the persons who assured her of continued employment if her work performance remained satisfactory. On appeal, the plaintiff contends that she provided sufficient information to create a genuine issue of material fact as to whether she had an implied contract of employment with the defendants. We disagree.
“In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability.” (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697–98, 802 A.2d 731 (2002). “In order to prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant to have an employment contract with [her]. A contract implied in fact, like an express contract, depends on actual agreement.... Accordingly, to prevail on [her] wrongful termination claim, which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause [following progressive disciplinary measures].... To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant had agreed to some form of contract commitment.
“A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties.... The mere fact that the plaintiff believed [certain actions or policies] to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract.” (Citations omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729–30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).
The plaintiff's arguments in support of the existence of an implied contract of employment have been made by other plaintiffs in other cases and have been rejected by this court. For example, in Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 843, 888 A.2d 104 (2006), “[t]he plaintiff claim[ed] that such things as periodic reviews, setting dates at which there would be salary increases, setting long-term benefits and the way other employees were treated [were] evidence of an implied contract between her and [the defendant] that she would not be discharged except for cause. [This court held that] [t]he plaintiff fail[ed] to recognize, however, that it [was] her burden to establish that adherence to these policies and procedures was the result of a contractual commitment by the defendant. [C]ontracts are not created by evidence of customs and usage.” (Internal quotation marks omitted.) Furthermore, as previously quoted from the defendants' policies and employee handbook, the defendants disclaimed anything other than an at-will employment relationship with any of their employees who did not have written contracts. Our Supreme Court has “stated with unambiguous clarity that employers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract ....” (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999).
The evidence presented to the trial court by the defendants in support of their motion for summary judgment reveals the existence of such disclaimers in their policies and employee handbook, and the plaintiff presented no competent summary judgment evidence that contradicts that evidence. See Brusby v. Metropolitan District, supra, 160 Conn.App. at 646, 127 A.3d 257. Accordingly, the trial court properly rendered summary judgment as to this count because the plaintiff failed to present evidence that established that there was a genuine issue of material fact regarding whether an implied contractual agreement existed that would prohibit the termination of her employment except for just cause.
II
The plaintiff next claims that the court improperly rendered summary judgment on count three of her complaint, which alleges that the defendants terminated her employment in violation of an important public policy. See Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 476, 427 A.2d 385 (1980) (employer lacks discretion to terminate at-will employee if termination would violate important public policy). The defendants respond that the court properly determined that the plaintiff failed to identify an important and clearly articulated public policy that was violated as the result of her discharge. We conclude that the plaintiff cannot prevail on her claim.
The following additional procedural history is relevant to this claim. In her amended complaint, the plaintiff alleged that her termination violated two public policies. First, she alleged that “[e]ven if this was an at-will employment arrangement, allowing an employer to terminate an employee for saving a man's life is against public policy. Saving a person's life is a substantial public policy and should fall under [t]he [p]ublic [p]olicy [e]xception to the [a]t-[w]ill [e]mployment [r]ule.” Second, she alleged that “[t]he [defendants'] attempt to cover up their liability exposure, by firing the [plaintiff] who stepped up to the plate to save a man's life, is improper and violates public policy.” In their motion for summary judgment, the defendants claimed that the plaintiff had “not alleged an established public policy” and that she should not “be immunized from an adverse employment action for allegedly saving a patient's life....” At the hearing before the trial court on their motion, the defendants' counsel argued that the plaintiff had altered medical equipment, which was against hospital policy, and that her termination from employment was therefore proper even if she did save a patient's life.
In response, in her opposition to the defendants' motion for summary judgment, the plaintiff expanded upon her public policy claim. In support of her allegation that her termination violated a public policy against covering up medical malpractice, the plaintiff set forth two arguments. First, the plaintiff argued that terminating an employee in order to hide medical malpractice by the employer violates a general public policy against covering up negligence. Second, the plaintiff appeared to argue that the defendants had a duty to report adverse medical events to the Department of Health pursuant to General Statutes § 19a–127n (b). According to the plaintiff, that statute embodies a public policy against hospitals covering up medical malpractice, which her termination violated because the defendants' goal in terminating her employment was to cover up an adverse event—the inability to connect the pacer wire to the temporary pacer box.
General Statutes § 19a–127n provides in relevant part: “(a) (1) For purposes of this section, an ‘adverse event’ means any event that is identified on the National Quality Forum's List of Serious Reportable Events or on a list compiled by the Commissioner of Public Health and adopted as regulations....
“(2) ... (b) ... [A] hospital or outpatient surgical facility shall report adverse events to the Department of Public Health on a form prescribed by the commissioner....”
In support of her allegation that her termination violated a public policy in favor of saving a person's life, the plaintiff argued that her termination violated the public policy inherent in the rescue doctrine, because the defendants' negligence placed the patient in peril and invited rescue. “The rescue doctrine is a bar to or precludes the affirmative defenses of contributory negligence and assumption of the risk. A person is not contributorily negligent who, with due care, encounters a risk created by a defendant's negligence in order to perform a rescue necessitated by that negligence, and it is not contributory negligence for a plaintiff to expose him- or herself to a danger in a reasonable effort to save a third person from harm.” (Footnotes omitted.) 65A C.J.S. 46–47, Negligence § 267 (2010). “The ‘rescue doctrine’ allows an injured rescuer to recover damages from the person whose negligence created the need for rescue.” Id., p. 48.
Rationales for the rescue doctrine include: “(1) The rescue doctrine ... is shorthand for the idea that rescuers are to be anticipated and is a reflection of a societal value judgment that rescuers should not be barred from bringing suit for knowingly placing themselves in danger to undertake a rescue....
“(4) The rescue doctrine encourages efforts to save imperiled persons, by permitting a rescuer to recover for injuries sustained in a rescue attempt despite the rescuer's voluntary (though not reckless) decision to expose himself to danger....
“(5) The rescue doctrine recognizes that those who negligently imperil life or property may be liable not only to their victims but also to the rescuers.” (Citations omitted.) 65A C.J.S., supra, at 47 n. 1.
The court granted the defendants' motion for summary judgment as to the plaintiff's public policy count. Concerning the plaintiff's argument that her termination violated a public policy against covering up medical malpractice, the court held: “While the plaintiff argues that she was terminated in an effort to cover up possible medical malpractice committed by the defendants' other employees, she has proffered no evidence of this alleged malpractice beyond simply speculating that it occurred; nor has the plaintiff cited a relevant public policy that was violated by her termination under the circumstance.”
With respect to the plaintiff's assertion that her termination violated the public policy inherent in § 19a–127n (b), the court stated: “An ‘adverse event’ is defined within [§ 19a–127n (b) ] as ‘any event that is identified on the National Quality Forum's List of Serious Reportable Events or on a list compiled by the Commissioner of Public Health and adopted as regulations'.... General Statutes § 19a–127n (a)(1). Without entering the National Quality Forum's List of Serious Reportable Events into evidence, the plaintiff states that the List includes ‘patient death or serious injury associated with the use or function of a device in patient care, in which the device is used or functions other than as intended.’ The plaintiff alleges that because the defendants did not report the adverse event at the heart of this litigation to the Department of Public Health, the event could not have transpired the way the defendants claim it did, and therefore a material issue of fact exists, which precludes the entry of summary judgment as to count three. The plaintiff does not specify exactly what this material issue of fact is, and it is difficult to see how the defendants' alleged failure to comply with the statute is relevant to whether the plaintiff's dismissal occurred for a reason that violates public policy.”
Concerning the public policy inherent in the rescue doctrine, the court held that “[t]he doctrine is invoked only in determining whether the rescuer's contributory negligence is to be excused.... The rescue doctrine does not constitute a public policy for the purposes of an exception to the at-will employment doctrine; nor is it clear how the rescue doctrine is applicable to the circumstances of the plaintiff's case.” (Citation omitted; internal quotation marks omitted.)
Importantly, on appeal, the plaintiff does not reassert her contention, made before the trial court, that her termination violated the public policy in favor of saving a person's life as reflected in the rescue doctrine. The plaintiff did not brief on appeal, or mention in any way, her argument that her termination violated the public policy inherent in the rescue doctrine in favor of saving a person's life. Indeed, we have scoured the relevant portions of the plaintiff's brief and have found absolutely no mention or analysis of a general public policy of saving lives or the rescue doctrine. Although the plaintiff factually argues in her brief that her actions saved the patient's life, she does not argue that the defendants' actions in terminating her employment after she saved a life violated an important and clearly articulated public policy of “saving lives.” Accordingly, we deem this claim abandoned and decline to review it. See Fradianni v. Protective Life Ins. Co., 145 Conn.App. 90, 92 n. 2, 73 A.3d 896 (claim or argument not briefed deemed abandoned), cert. denied, 310 Conn. 934, 79 A.3d 888 (2013) ; Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 292 n. 2, 44 A.3d 879 (claim not briefed on appeal deemed abandoned, and court may decline to review it), cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).
The dissent implicitly concedes that this public policy ground is not raised, analyzed, or even mentioned in the portion of the plaintiff's appellate brief addressing count three. Instead, the dissent appears to suggest that a party has not abandoned a claim on appeal as long as that claim was made before the trial court and mentioned in oral argument before this court. This assertion is contrary to well established precedent that appellate courts will treat as abandoned claims that are not briefed adequately. See Barros v. Barros, 309 Conn. 499, 503 n. 4, 72 A.3d 367 (2013) (claim deemed abandoned for inadequate briefing); State v. Weston, 164 Conn. 635, 636, 325 A.2d 457 (1973) (claim not briefed on appeal, although argued during oral argument, treated as abandoned); Braham v. Newbould, 160 Conn.App. 294, 312 n. 15, 124 A.3d 977 (2015) (claim abandoned that was not properly briefed because “[i]t is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately” [internal quotation marks omitted] ). Adherence to this well established precedent is particularly warranted in this case for the following reasons. The dissenting opinion appears to find an important and clearly articulated public policy of “saving lives” inherent in the rescue doctrine, Connecticut's good Samaritan law pursuant to General Statutes § 52–557b, and the public safety exception to the warrant requirement. Because these potential sources of a public policy exception to the employment at-will doctrine were not raised by the plaintiff in her brief, the defendants have had no opportunity to respond to or analyze them.
The dissent relies on Markley v. Dept. of Public Utility Control, 301 Conn. 56, 67 n. 12, 23 A.3d 668 (2011), which “assume[d], arguendo,” that an equal protection claim was not abandoned on appeal, although it was not briefed, because the claim was discussed in the trial court and at oral argument on appeal. Markley, however, cannot be read as establishing a new rule regarding the abandonment of a claim or as overruling a long line of precedent regarding inadequate briefing. At best, Markley stands for the proposition that an appellate court retains discretion to consider a claim that has been inadequately briefed.
Moreover, although this court has the discretion to address an abandoned claim; Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004) ; we should be particularly cautious of addressing a claim that, in essence, asks the court to recognize a new and broad public policy exception to the at-will employment doctrine without adequate briefing because of the narrowness of the public policy exception to the at-will employment doctrine. See Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. at 701, 802 A.2d 731 (“the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one” [internal quotation marks omitted] ). Caution is particularly warranted in a case, like this one, involving emergency medicine. There may be compelling reasons in the complex world of emergency medicine that would counsel against recognizing the public policy articulated by the dissent, at least as broadly as the dissent has framed it. As this court previously has suggested in Armshaw v. Greenwich Hospital, 134 Conn.App. 134, 138, 38 A.3d 188 (2012), medical providers should have significant discretion to terminate the employment of an at-will employee who has violated hospital procedures and policies that are in place to guarantee the safety and proper care of patients. Id. (“[o]ur review of the record ... does not uncover any explicit statutory mandate, constitutional provision or judicial determination that prevents a hospital from discharging an at-will nursing employee, who has been the subject of previous disciplinary action, for failing to follow conduct and quality of work protocols designed to ensure the safety and proper care of its patients”). Thus, it is particularly troublesome to recognize an amorphous “saving lives” public policy exception to the at-will employment doctrine in the context of emergency medicine, especially in a case in which such a public policy has not been briefed adequately.
Even if we were inclined to agree with the dissent that such a public policy exists, the plaintiff has failed to offer any competent summary judgment evidence to establish that a genuine issue of material fact exists regarding whether the termination of her employment violated such a public policy. The dissent considers the uncertified deposition testimony of various members of the defendants' medical staff that the plaintiff attached to her opposition to the motion for summary judgment in concluding that the plaintiff has established a genuine issue of material fact as to whether the termination of her employment violated the alleged public policy. It is unclear, however, whether the trial court considered these documents or whether it excluded them. In its memorandum of decision, the trial court noted that the plaintiff offered these uncertified documents with her opposition to the motion for summary judgment, but makes no further reference to them. The memorandum of decision, however, is unclear as to whether the court actually considered the uncertified deposition testimony. The transcript from the hearing on the motion for summary judgment, however, strongly suggests that the court did not consider these documents. The court specifically advised the plaintiff's counsel that “there has to be something in the record in a proper form and in compliance with the rule of practice for the court to consider in opposition to this motion for summary judgment.... I have nothing ... that's a problem.”
Instead, the plaintiff on appeal argues only that there was a genuine issue of material fact concerning whether her termination violated a public policy against covering up medical malpractice. In support of this claim, the plaintiff, before the trial court, relied on § 19a–127n, which requires hospitals to report adverse medical events, and, thus, according to the plaintiff, embodies a public policy prohibiting hospitals from covering up medical malpractice. On appeal, she also argues that there is a general public policy against terminating an employee in order to cover up the employer's negligence. The plaintiff further argues that to the extent that such a public policy does not exist, this court has the authority to judicially create such a public policy.
We conclude that the trial court properly rendered summary judgment with respect to the plaintiff's claim that her termination violated an important public policy prohibiting an employer from covering up negligence. We reach this conclusion for primarily two reasons. First, the plaintiff has failed to establish a genuine issue of material fact regarding whether her termination violated this alleged public policy as it relates to § 19a–127n, which is the only legal authority that she cited before the trial court as support for the existence of this public policy. Second, even if we assume that there is a recognized, general public policy exception that prohibits an employer from engaging in conduct intended to hide instances of negligence, the plaintiff has failed to establish a genuine issue of material fact regarding whether the defendants were negligent and whether she was terminated to cover up that negligence. We begin with the legal principles that guide our analysis. Our Supreme Court has “establish[ed] the principle that public policy imposes some limits on unbridled discretion to terminate the employment of someone hired at will.” Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. at 476, 427 A.2d 385. Although the court in Sheets “recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees ... [it also] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [courts should] look to see whether the plaintiff has ... alleged that his discharge violated any explicit statutory or constitutional provision ... or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.” (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. at 700–701, 802 A.2d 731.
Our Supreme Court also “repeatedly [has] underscored [that] adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one.... [C]ourts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.... Consequently, we have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy.” (Citations omitted; internal quotation marks omitted.) Id., at 698–99, 802 A.2d 731 ; see also Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986) (public policy exception to at-will employment termination requires particular, explicit public policy); Armshaw v. Greenwich Hospital, supra, 134 Conn.App. at 138, 38 A.3d 188 (exception requires “explicit statutory mandate, constitutional provision or judicial determination” [emphasis added] ).
We first address the plaintiff's argument that her termination violated the public policy inherent in our health care statutes mandating the accurate reporting of adverse events. In her appellate brief, the plaintiff does not cite to any specific health care statutes; rather, she merely alleges that “[t]he [d]efendants attempt to hide their corporate negligence by instantly terminating [the plaintiff] ... and creating false documents in [violation] of health statutes requiring honest and accurate reporting of adverse health care events.... These statutes taken collectively constitute an important public policy.” (Emphasis omitted.) In her opposition to the motion for summary judgment, however, the plaintiff cited only to § 19a–127n (b) in support of this argument. Accordingly, we limit our review to whether there was a genuine issue of fact concerning whether the plaintiff's termination violated a public policy inherent in § 19a–127n (b), one that prohibits hospitals from covering up negligence because it requires the accurate reporting of adverse medical events that occur at hospitals. See Gordon v. Gordon, 148 Conn.App. 59, 65, 84 A.3d 923 (2014) (“[w]e have consistently declined to review claims based on a ground different from that raised in the trial court” [internal quotation marks omitted] ); State v. Ulen, 31 Conn.App. 20, 29, 623 A.2d 70 (same), cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Section 19a–127n (b) provides in relevant part: “[A] hospital or outpatient surgical facility shall report adverse events to the Department of Public Health [department] on a form prescribed by the commissioner....” An “adverse event” is defined as “any event that is identified on the National Quality Forum's List of Serious Reportable Events or on a list compiled by the Commissioner of Public Health and adopted as regulations....” General Statutes § 19a–127n (a). Section 19a–127n–2 of the Regulations of Connecticut State Agencies provides in relevant part: “(b) All adverse events identified in the National Quality Forum's list of serious events, as amended, and those on the list compiled by the department, as amended, shall be reported by the facility on the adverse event reporting form prescribed by the Commissioner....”
We note that although the plaintiff alleged in her revised complaint that her termination violated public policy against covering up negligence, she did not cite to § 19a–127n (b) or allege that her termination violated the public policy allegedly inherent in § 19a–127n (b). The defendants, however, never filed a request to revise seeking “a more complete or particular statement of the allegations”; Practice Book § 10–35(1) ; or a motion to strike contesting the legal sufficiency of the allegation. Practice Book § 10–39. Therefore, we do not address the significance, if any, of the plaintiff's failure to cite to § 19a–127n in her complaint.
Both the National Quality Forum's List of Serious Reportable Events and the list compiled by the Commissioner of Public Health are available online on the website of the Department of Public Health. Both lists appear to be periodically updated.
For two reasons, the plaintiff failed to establish that an issue of material fact existed concerning whether her termination violated the public policy allegedly inherent in § 19a–127n. First, as the trial court found, the plaintiff failed to provide competent summary judgment evidence that the statute applied to the facts of this case. The plaintiff here makes the same error as did the plaintiff in Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 161, 745 A.2d 178 (2000). Our Supreme Court in Burnham held that the plaintiff failed to establish that a genuine issue of material fact existed as to whether her termination violated the public policy inherent in General Statutes § 31–51m because she offered no competent summary judgment evidence that the circumstances of her termination met the requirements of the statute. Id. Section 31–51m prohibits employers from retaliating against employees who report a violation of a federal or state law to a “public body....” (Emphasis omitted; internal quotation marks omitted.) Id., at 160, 745 A.2d 178. Prior to her termination, the plaintiff in Burnham had reported the defendant's allegedly unsafe dental practices to the state dental association. Id., at 155, 745 A.2d 178. The plaintiff, however, failed to offer any competent summary judgment evidence “that the dental association [was] a public body as defined in § 31–51m (a)(4). Therefore, because the plaintiff failed to present evidence that created a material issue of fact as to whether her termination violated the provisions of § 31–51m, we conclude [d] that the plaintiff [could not] use the public policy embodied therein to support her claim of wrongful discharge based on a violation of public policy.” Id., at 161, 745 A.2d 178.
Similarly, in the present case, the plaintiff has offered no competent summary judgment evidence that § 19a–127n is applicable. For the plaintiff's termination to violate the public policy allegedly inherent in § 19a–127n, the event at issue had to qualify as an adverse event under the statute, and her termination had to somehow be designed to circumvent the defendants' duty to report the adverse event. The plaintiff provided no competent summary judgment evidence that established that there was a genuine issue of material fact as to whether the event at issue qualified as an adverse event pursuant to § 19a–127n. As the trial court stated, the plaintiff did not provide as evidence the National Quality Forum's List of Serious Reportable Events or the list compiled by the department. Although the plaintiff asserted in her pleadings that the event at issue qualified as an adverse event under the National Quality Forum's List of Serious Reportable Events, she offered no evidence to support this assertion. See Trotta v. Branford, 26 Conn.App. 407, 412, 601 A.2d 1036 (1992) (“[d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred”). Because the plaintiff has offered no competent summary judgment evidence that § 19a–127n is applicable, she cannot use the public policy allegedly embodied therein to support her claim of wrongful discharge based on a violation of public policy.
Second, even if the event at issue was an adverse event under § 19a–127n, the plaintiff has not established a genuine issue of material fact regarding whether her termination violated the public policy allegedly inherent in § 19a–127n. Specifically, the plaintiff has failed to explain how her termination alleviated the defendants' duty to report an adverse event pursuant to § 19a–127n or that she was terminated for reporting the event herself. Despite terminating the plaintiff, the defendants' duty to report the adverse event, assuming that the event at issue was an adverse event, continued to exist. Whether the defendants terminated the plaintiff's employment had no effect on their statutory duty to report the adverse event.
The plaintiff failed to offer any competent summary judgment evidence that the defendants failed to report the alleged adverse event at issue. The record is silent as to whether the event at issue was reported to the department.
Additionally, assuming that the allegedly adverse event was not reported to the department, the plaintiff has failed to explain how not reporting the adverse event necessarily equates to an attempt to cover up its alleged negligence. Indeed, the plaintiff conflates a failure to comply with the statutory requirement to report adverse medical events with an attempt to cover up negligence. Not all adverse medical events that presumably must be reported under § 19a–127n, however, constitute negligence. Thus, it is unclear how the plaintiff's termination violated any public policy allegedly inherent in § 19a–127n prohibiting an employer from covering up negligence.
Furthermore, this case is distinguishable from cases in which our Supreme Court has held that it violated public policy to terminate an employee who insisted that an employer adhere to a statute or regulation. In Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. at 478, 427 A.2d 385, our Supreme Court held that it violated public policy to terminate an employee in retaliation for the employee calling to the employer's attention repeated violations of the Connecticut Uniform Food, Drug and Cosmetic Act, General Statutes (Rev. to 1977) § 19–211 et seq., now codified at General Statutes § 21a–91 et seq. In the present case, the plaintiff did not allege that she was terminated because she insisted that the defendants comply with § 19a–127n, nor that she was terminated because she reported the defendants' lack of compliance with the statute to the Department of Public Health or another authority. Thus, the plaintiff's claim falls outside the narrow public policy recognized in Sheets v. Teddy's Frosted Foods, Inc., supra, at 478, 427 A.2d 385.
Next, we address the plaintiff's more general argument that her termination violated an important and clearly articulated public policy prohibiting an employer from terminating an employee in order to cover up its negligence. The plaintiff argues that, to the extent that such a public policy is not clearly established in statutes or case law, this court may and should judicially create such a public policy. For the reasons that follow, we agree with the defendants that the plaintiff has failed to identify a clearly articulated, important public policy against terminating an employee in order to cover up negligence, and we decline to judicially create such a general public policy in the circumstances of this case. Additionally, even if we assume that such a general public policy exists, the plaintiff has failed to establish that there is a genuine issue of material fact regarding whether her termination violated such a public policy because she offered no competent summary judgment evidence that the defendants were negligent and that the defendants terminated her employment in an attempt to hide that negligence.
After the defendants argued in their motion for summary judgment that the plaintiff alleged no particular public policy that was violated by her termination, the plaintiff was required to establish that there existed an issue of material fact as to whether her termination violated an important public policy “clearly articulated” in state statutes, the state constitution, or prior case law. Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. at 701, 802 A.2d 731 ; see also Morris v. Hartford Courant Co., supra, 200 Conn. at 680, 513 A.2d 66 (public policy exception to at-will employment termination requires particular, explicit public policy); Armshaw v. Greenwich Hospital, supra, 134 Conn.App. at 138, 38 A.3d 188 (exception requires “explicit statutory mandate, constitutional provision or judicial determination” [emphasis added] ).
The plaintiff, however, with the sole exception of § 19a–127n, has failed to cite to this court or to the trial court a single statute or any case law in support of the alleged public policy against terminating an employee to cover up negligence. We have already concluded that § 19a–127n does not bear the weight that the plaintiff places upon it. Accordingly, the plaintiff falls far short of creating a genuine issue of material fact concerning the violation of an important and clearly articulated public policy against terminating an employee to cover up negligence because she never established the existence of such a public policy. Additionally, because the plaintiff's argument contains no supporting law or analysis, the precise contours of her alleged public policy are unknown, and we decline to establish such a public policy in this case. Even if this court was inclined to establish such a public policy in this case, the plaintiff has failed to provide any competent summary judgment evidence to create a genuine issue of material fact that the defendants were negligent and that she was terminated to cover up their negligence. The plaintiff's allegation of negligence is supported by only speculation, not by evidence submitted in opposition to the motion for summary judgment. Although the plaintiff offered evidence of the defendants' conduct regarding the incident in question, she offered no evidence, such as an affidavit from an expert in emergency medicine, that would support a finding that the defendants' conduct was negligent or that the defendants would have been concerned about liability to the patient.
Although such a public policy may exist, because the plaintiff's general argument contains no supporting law or analysis, the precise contours of such a public policy are unknown, and may differ from case to case depending upon various factors, including, but not limited to, the particular nature of the employer's business.
Additionally, the plaintiff has not come forward with any evidence from which an inference may be drawn that her termination furthered, or was designed to further, the defendants' alleged goal of covering up medical malpractice. Nor has the plaintiff offered any evidence that the defendants took any steps intended to or that were in fact successful in hiding evidence of their alleged negligence from the particular patient involved in this case. Without such evidence, the causal connection between the plaintiff's termination and the defendants' alleged attempt to cover up potential negligence remains unclear. Although the plaintiff's employment was terminated, the plaintiff offers no explanation for how her termination would shield the defendants from liability in the event that they were sued for medical malpractice by the patient or the patient's estate.
We recognize that the plaintiff raised a related claim of spoliation of evidence because of the allegedly improper disposal of the pacing wire. That claim, however, was made in the specific context of her allegation that the pacing wire was destroyed by medical staff in order to defeat her employment claim, rather than in an attempt to avoid liability to the patient. Second, the plaintiff offered no evidence; see part IV of this opinion; that would suggest that the pacing wire was destroyed in bad faith or that it should not have been disposed of in the same, ordinary manner as any other medical waste.
In sum, the plaintiff has failed to establish the existence of a genuine issue of material fact concerning whether, by terminating her employment, the defendants violated the public policy allegedly inherent in § 19a–127n in favor of the accurate reporting of adverse events or a more general public policy against terminating an employee to cover up negligence. Accordingly, we conclude that the trial court properly rendered summary judgment in favor of the defendants as to the plaintiff's count alleging that the defendants terminated her employment in violation of an important public policy.
III
The plaintiff next claims that the court improperly rendered summary judgment on her count alleging that the defendants breached the covenant of good faith and fair dealing by terminating her employment in bad faith. Specifically, she contends that the court improperly concluded that “the plaintiff ... failed to establish the prima facie elements of a cause of action for breach of the covenant of good faith and fair dealing.” because there was a genuine issue of material fact regarding the existence of an implied contract that prohibited her termination except for just cause. The defendants argue that the court was correct in its conclusion because there was no genuine issue of material fact regarding the existence of an implied contract between the parties. We agree with the defendants.
Our Supreme Court has “recognize[d] an implied covenant of good faith and fair dealing in every contract without limitation.... Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.” (Citations omitted.) Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566–67, 479 A.2d 781 (1984). “Although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction.” Id., at 572, 479 A.2d 781. Accordingly, for the plaintiff to survive summary judgment on this claim in this case, she was required to establish a genuine issue of material fact regarding the existence of an implied employment contract. As previously discussed, the plaintiff failed to establish a genuine issue of material fact concerning whether the parties had an implied contract that prohibited her discharge without just cause. Accordingly, the court properly rendered summary judgment as to the plaintiff's count alleging breach of the covenant of good faith and fair dealing.
On appeal, the plaintiff also argues that the court improperly rendered summary judgment on this count because it improperly decided her count alleging wrongful termination in violation of an important public policy. The plaintiff, however, with respect to the count alleging a breach of the covenant of good faith and fair dealing, did not rely in the trial court on the public policies identified in her count alleging wrongful discharge in violation of an important public policy. Rather, in her revised complaint, the plaintiff alleged that because an implied contract existed, “[e]mployer personnel decisions are subject to a ‘just cause’ standard,” and that “[b]y failing to perform a thorough investigation of the incident upon which the termination of the plaintiff is based, the covenant of good faith and fair dealing has been violated by the defendants.” In her opposition to the motion for summary judgment, the plaintiff argued that the defendants were not entitled to summary judgment on this count because there was a genuine issue of material fact regarding the existence of an implied employment contract. Accordingly, we limit our review to only the arguments made before the trial court and decline to address the plaintiff's argument that the court improperly rendered summary judgment on this count because it improperly decided her count alleging wrongful termination in violation of an important public policy. See Gordon v. Gordon, supra, 148 Conn.App. at 65, 84 A.3d 923 (“[w]e have consistently declined to review claims based on a ground different from that raised in the trial court” [internal quotation marks omitted] ).
IV
Finally, the plaintiff claims that the court improperly granted the defendants' motion for summary judgment on her spoliation of evidence count because genuine issues of material fact existed with respect to her claim that the defendants withheld certain medical records and destroyed evidence that would have supported her cause of action. The defendants argue that the court properly determined that the plaintiff's spoliation claim failed because she did not provide any evidence that medical records had been destroyed or that the patient's pacer wire, which was replaced and discarded by the defendants' medical staff, had been destroyed in bad faith. We agree with the defendants that the court properly rendered summary judgment as to this count.
The following additional facts and procedural history are relevant to this claim. On August 15, 2012, approximately two months after the incident at issue, the plaintiff sent a letter to the defendants, requesting that the pacer wire and the patient's medical records be preserved. In her revised complaint, as amended, the gravamen of the plaintiff's claim of spoliation was that the transvenous pacer wire that had been altered by the plaintiff was subsequently destroyed by the defendants. Thus, the plaintiff argued that she could not have an expert examine the pacer wire to dispute the defendants' position that she damaged the pacer wire when she altered it. The plaintiff further alleged that “[t]he medical record has glaring absences of documentation regarding the care of the patient that is the subject of the disciplinary action against the [p]laintiff.” In their motion for summary judgment, as supplemented, the defendants represented that they had provided more than 900 pages of medical records and that the plaintiff had provided no documentation whatsoever to support her speculative claim that portions of the medical record had been destroyed, let alone intentionally destroyed. With respect to the pacer wire, the defendants argued that it had been disposed of shortly after the incident and that they were under no obligation to preserve an altered piece of medical equipment.
In rendering summary judgment on this claim, the trial court concluded that “[although] the plaintiff has speculated that the defendants destroyed certain of the patient's medical records, she has presented no evidence that would tend to support that allegation. [Additionally, although the parties agree that the defendants destroyed the pacer wire] there is no evidence that the pacer wire was destroyed in bad faith....”
“[T]he tort of intentional spoliation of evidence consists of the following essential elements: (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant's destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence; and (5) damages.” (Emphasis added.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244–45, 905 A.2d 1165 (2006).
Our careful review of the record supports the court's determination that the plaintiff failed to establish a genuine issue of material fact regarding the destruction of the patient's medical record and the defendants' alleged bad faith in destroying the pacer wire. Regarding the pacer wire, the facts of this case are analogous to those in Surrells v. Belinkie, 95 Conn.App. 764, 898 A.2d 232 (2006). In Surrells, the defendant plastic surgeon performed breast surgery on the plaintiff. Id., at 765, 898 A.2d 232. Subsequently, the plaintiff noticed that her right breast was swollen and leaking fluid. The defendant determined that the plaintiff's right breast had become necrotic and performed a debridement, or surgical removal, of the necrotic tissue. Id., at 765–66, 898 A.2d 232. The defendant disposed of the necrotic tissue following the surgery and did not test it for the presence of an infection. Id., at 770, 898 A.2d 232.
We note that Surrells was decided prior to Rizzuto, which recognized the tort of intentional spoliation of evidence for the first time. At the time that Surrells was decided, the remedy for intentional spoliation of evidence “in a civil context, [was] that the trier of fact may draw an [adverse] inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. at 237, 905 A.2d 1165. The facts and analysis in Surrells, however, remain relevant in light of the similar analysis employed in both cases—in Surrells, the issue was intentional destruction of evidence, and in Rizzuto, the court held that the newly recognized tort of intentional spoliation of evidence requires the intent to deprive the plaintiff of his cause of action.
The plaintiff in Surrells filed a complaint against the defendant, alleging medical negligence on the ground that his negligence during the original breast surgery caused an infection in her right breast. Id., at 766, 898 A.2d 232. The plaintiff further alleged spoliation of the evidence because she could not have the necrotic tissue tested for an infection to establish that the defendant's actions had caused an infection to occur. Id., at 770, 898 A.2d 232. The trial court found that the plaintiff failed to establish that she developed an infection and declined to draw an adverse inference against the defendant on the ground that he did not intentionally destroy the necrotic tissue. On appeal, this court affirmed the trial court's decision, holding that “the spoliation of the plaintiff's breast tissue occurred before [the defendant] had any reason to believe that the tissue would be the subject of litigation. The plaintiff appears not to have offered the court any evidence that a plastic surgeon ordinarily would be expected to retain tissue samples from every patient in anticipation of future litigation.... The court consequently had no basis from which to infer that [the defendant] destroyed the plaintiff's breast tissue in order to avoid testing it for the presence of an infection.” Id., at 771, 898 A.2d 232.
Similarly, in the present case, the plaintiff failed to offer any evidence that the pacer wire was disposed of for any other purpose than that which medical waste is ordinarily disposed. Additionally, the August 15, 2012 letter requesting that the pacer wire be preserved was sent by the plaintiff to the defendants months after the incident in question, which was approximately when the pacer wire was disposed of. Thus, the plaintiff has failed to offer any evidence from which an inference could be drawn that the defendants disposed of the pacer wire in bad faith in order to deprive her of her cause of action.
In her appellate brief, the plaintiff cites to and includes a copy of the defendants' “Medical Device and Product Failure Reporting Policy.” The plaintiff alleges that this policy was violated by the destruction of the pacer wire, and, thus, proves that the defendants destroyed it in bad faith. The plaintiff, however, did not offer this policy as evidence with her objection to the motion for summary judgment. Accordingly, we do not consider it. See Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006) (court does not abuse discretion by refusing to consider untimely summary judgment evidence); Practice Book § 17–45 (parties must file opposing affidavits and other summary judgment evidence prior to date of motion to be heard).
Regarding the allegedly destroyed medical records, the plaintiff not only has failed to offer any evidence that records were destroyed or altered, but she also has failed to identify specifically what was allegedly altered or destroyed. The plaintiff's assertion, contained only in her brief on appeal, is grounded in mere speculation. She argues “that [medical] staff wrote [in the patient's medical record] that the patient was in critical condition, was unstable and had heart failure, pulmonary edema, a heart attack, brain injury, kidney failure, liver failure and lacked cardiac pacing. It stretches the imagination that this is not documented in a 1000 page medical record except for a brief phrase here and there.” The plaintiff, however, did not identify any specific portion of the patient's medical record that was missing or altered. Both parties admit in their pleadings—the plaintiff in her request to revise her amended complaint and the defendants in their motion for summary judgment as supplemented—that the defendants provided the plaintiff with the patient's medical records. Once this was established, the defendants met their burden of establishing that they did not destroy the medical records, and it was incumbent upon the plaintiff to identify specific portions of the medical record that were missing or appeared altered.
In sum, the plaintiff failed to provide any competent summary judgment evidence that established a genuine issue of material fact regarding the defendants' bad faith in disposing of the pacer wire or the destruction or alteration of the patient's medical record. Accordingly, we conclude that the trial court properly rendered summary judgment as to the plaintiff's claim for spoliation of evidence.
The judgment is affirmed.
In this opinion WEST, J., concurred.
ALVORD, J., concurring in part and dissenting in part.
I agree with parts I, III and IV of the majority opinion, which conclude that the trial court properly rendered summary judgment on the claims of the plaintiff, Annemarie Morrissey–Manter, that the defendants, Saint Francis Hospital and Medical Center, and Saint Francis Care, Inc., improperly terminated her employment because she had an implied contractual agreement that prohibited her discharge without cause, that the defendants breached the covenant of good faith and fair dealing because she was discharged without cause, and that the defendants withheld evidence and destroyed evidence that would have supported her cause of action. As fully discussed in the majority opinion, the plaintiff did not present sufficient evidence to set forth genuine issues of material fact with respect to those claims.
I disagree, however, with part II of the majority opinion, which concludes that summary judgment was properly rendered with respect to her claim that the defendants terminated her employment in violation of an important public policy. I conclude that an important public policy was alleged in her complaint, i.e., saving a life under exigent circumstances, and that the plaintiff submitted sufficient evidence to set forth a genuine issue of material fact with respect to that claim. I disagree with the majority opinion that she abandoned that express claim of public policy and, accordingly, I would review that claim and reverse in part the judgment of the trial court.
In her complaint, the plaintiff alleged that (1) “allowing an employer to terminate an employee for saving a man's life is against public policy,” and (2) “the defendants' attempt to cover up their liability exposure, by firing the one person who stepped up to the plate to save a man's life, is improper and violates public policy.” In their motion for summary judgment, the defendants claimed that the plaintiff had “not alleged an established public policy” and that she should not “be immunized from an adverse employment action for allegedly saving a patient's life....” At the hearing before the trial court on their motion, the defendants' counsel argued that the plaintiff had altered medical equipment, which was against hospital policy, and that her termination from employment was therefore proper even if she did save a patient's life. The trial court agreed: “While the plaintiff argues that she was terminated in an effort to cover up possible medical malpractice committed by the defendants' other employees, she has proffered no evidence of this alleged malpractice beyond simply speculating that it occurred; nor has the plaintiff cited a relevant public policy that was violated by her termination under the circumstances.” The majority concludes that the plaintiff abandoned this ground of an alleged public policy of saving lives and, instead, it focuses on the alleged public policy against covering up medical malpractice, as reflected in General Statutes § 19a–127n, and the alleged public policy against terminating an employee to cover up the employer's negligence. At oral argument before this court, the plaintiff identified those claims of public policy as “alternative” bases for her claim of wrongful discharge. She expressly reaffirmed that the public policy of saving lives under exigent circumstances was her primary claim. Indeed, during the oral argument, no mention whatsoever was made of § 19a–127n. The defendants did not claim that she had abandoned her alleged public policy of saving lives. Instead, they criticized the plaintiff for failing to articulate clearly which public policy argument she was relying on for her claim.
The plaintiff had argued that the “rescue doctrine” supported a public policy for saving lives. “The rescue doctrine was first promulgated by Cardozo, J., in Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437 (1921), in which the court stated: ‘Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable....’ (Citations omitted.) Id., at 180, 133 N.E. 437.” Zimny v. Cooper–Jarrett, Inc., 8 Conn.App. 407, 411–12, 513 A.2d 1235, cert. denied, 201 Conn. 811, 516 A.2d 887 (1986).
Our Supreme Court established the rescue doctrine in Connecticut in Cote v. Palmer, 127 Conn. 321, 16 A.2d 595 (1940). After quoting from § 472 of the Restatement of Torts (1934) that “[i]t is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or a third person from harm”; id., at 326–27, 16 A.2d 595 ; the court stated that “[t]he law cannot leave out of account the ordinary attributes of human nature ... and it condones conduct in the face of sudden emergency which it would otherwise condemn.” (Internal quotation marks omitted.) Id., at 327–28, 16 A.2d 595.
The trial court in the present case concluded that the rescue doctrine was applicable only when determining whether a rescuer's contributory negligence should be excused. According to the court: “The rescue doctrine does not constitute a public policy for the purposes of an exception to the at-will employment doctrine, nor is it clear how the rescue doctrine is applicable to the circumstances of the plaintiff's case.”
The trial court clearly understood the plaintiff's claim of an important public policy to include the saving of lives. As stated in the memorandum of decision, “Essentially, the plaintiff contends that she was punished for her life-saving act....”
I agree that the plaintiff's appellate brief is less than exemplary when it comes to the briefing of this claim, yet, I believe that it is fairly presented by the record because of the allegations in the complaint, her arguments in opposition to the motion for summary judgment before the trial court, and her affirmation before this court during oral argument. See Markley v. Dept. of Public Utility Control, 301 Conn. 56, 67 n. 12, 23 A.3d 668 (2011). For those reasons, I conclude that the plaintiff did not abandon her claim that her discharge was in violation of the important public policy of saving lives under exigent circumstances, and thus I choose to address it.
I also note that inadequate briefing does not prohibit a reviewing court from addressing an issue; we simply may decline to address it. Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 292 n. 2, 44 A.3d 879 (claim not briefed on appeal deemed abandoned, and court may decline to review it), cert. denied, 307 Conn. 938, 56 A.3d 950 (2012). The majority's decision not to review a claim on the basis of inadequate briefing is discretionary in nature. Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004).
The following legal principles are relevant to the plaintiff's claim. “Our Supreme Court has recognized an exception to the general rule regarding at-will employment in which an at-will employee may have a cause of action when the employee alleges a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 844, 888 A.2d 104 (2006). “The public policy exception to the at-will employment doctrine, however, is to be construed narrowly.... Under that narrow exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy.... In evaluating such claims, our Supreme Court has looked to see whether the plaintiff has ... alleged that his discharge violated any explicit statutory or constitutional provision ... or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.... A cognizable claim for wrongful discharge requires the plaintiff to establish that the employer's conduct surrounding the termination of the plaintiff's employment violated an important public policy.” (Citations omitted; internal quotation marks omitted.) Id.
Our Supreme Court has recognized a public policy limitation on the traditional at-will doctrine in an effort to balance the competing interests of employers and employees. Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 698, 802 A.2d 731 (2002). Additionally, it recognized “the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception.” Id., at 699, 802 A.2d 731. “The issue then becomes the familiar common-law problem of deciding where and how to draw the line between claims that genuinely involve the mandates of public policy and are actionable, and ordinary disputes between employee and employer that are not. We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation. We are, however, equally mindful that the myriad of employees without the bargaining power to command employment contracts for a definite term are entitled to a modicum of judicial protection when their conduct as good citizens is punished by their employers.” Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 477, 427 A.2d 385 (1980).
The plaintiff's complaint alleged that the patient arrived via ambulance from another hospital at the defendants' emergency department in an unstable condition, that the ambulance crew took the necessary pacing equipment with it and left the patient “not paced,” that the pacer wire hanging from the patient's neck was not connected, that the external pacer pads applied to the patient were insufficient to pace his heart, that the plaintiff was recruited to assist the patient's assigned team because of her experience, that she tried to connect the pacer wire into the hospital's own pacer device but it would not fit because of the plastic sheathing at the end of the pacer wire, and that she trimmed back the plastic and was then able to plug it into the hospital's pacer, thereby saving the patient's life.
In her objection to the defendants' motion for summary judgment, as supplemented, the plaintiff submitted her affidavit that added the following information. Members of the nursing staff had attempted to attach the patient's pacer wire to the hospital's pacer box, but were unsuccessful because the wire did not fit and there was no adapter available to make the connection; recognizing that the patient was in “imminent danger of death,” the plaintiff removed a portion of the plastic sheathing on the pacer wire to make the connection to the pacer box; the patient's vital signs immediately began to stabilize; and the plaintiff was commended by the medical staff present, including the charge nurse on duty, for her actions.
The plaintiff also submitted transcript excerpts from depositions taken in this action to support her objection to the motion for summary judgment. Diane Trudeau, a manager in the defendants' human resources department, testified that the disciplinary action form, dated June 6, 2012, accurately depicted the events that led to the plaintiff's termination of employment. That form, as previously discussed, stated that the patient was in unstable condition, had a very low heart rate, and had low blood pressure. Additionally, the form stated that the nursing staff attempted to attach the patient's pacer wire to the hospital's temporary pacer box, but that it did not fit. Further, while other nurses were “troubleshooting,” the plaintiff came into the room to offer support and cut a small amount of the plastic sheathing from the pacer wire, establishing a connection with the pacer box. After the connection was made, the patient's blood pressure improved, and he stabilized. The defendants' disciplinary action form, therefore, corroborates several of the plaintiff's allegations in her complaint and in her affidavit in opposition to the defendants' motion for summary judgment.
The trial court noted that these documents consisted of the “uncertified, excerpted deposition testimony” of various medical staff at the defendants' facility. Nevertheless, the court did not exclude consideration of those submissions by the plaintiff. Moreover, in response to questioning by this court during oral argument, the defendants' counsel stated that it did appear that the court considered those excerpts, on the basis of its reference to them in the memorandum of decision, and that the court considered everything submitted by the plaintiff in connection with her objection to the motion for summary judgment.
“Because the trial court appears to have considered all the materials ... and no challenge appears to have been made, we likewise will consider the substance of the materials presented.” Li v. Canberra Industries, 134 Conn.App. 448, 455 n. 4, 39 A.3d 789 (2012).
The submitted excerpt from the deposition transcript of Gilda Cabral, a nurse manager, addressed the problem of a missing adapter. Cabral testified that the plaintiff, instead of altering medical equipment by cutting the plastic sheathing from the pacer wire, should have “retrieve[d] an adapter.” Cabral was then asked the following question: “If there was an adapter and it was readily available, why wasn't the temporary pacer for Manchester being used during the five hours the patient was in the [Saint Francis] emergency department?” (Footnote added.) Cabral responded: “I can't speak to that.”
The patient was transported from Manchester Memorial Hospital to the defendants' facility.
An excerpt from the submitted deposition transcript of Loreen Williams, the patient's attending nurse who was present in the cardiac intensive care unit during the medical incident, also focused on the absence of the requisite adapter. Williams testified: “I'm only aware that the adapter exists now. I did not know at the time that the adapter existed.” When asked about the actions of Gregory Vernon, the charge nurse on duty in the unit, Williams testified: “I also know [charge nurse Vernon] was there at the very end when the wires were finally connected.... Yes, he knew we were trying to connect them, and he knew how we were trying to connect them. He left, and came back, and he congratulated [the plaintiff] once they were connected.... He reappeared shortly thereafter as the connections were being made and the patient was being paced. We congratulated [the plaintiff] on a job well done, and it would have been horrible if she wasn't there....”
As additional support for her objection to the defendants' motion for summary judgment, the plaintiff submitted an excerpt from the deposition transcript of Dr. Aneesh Tolat, the electrophysiologist who, according to the June 6, 2012 disciplinary action form, allegedly “was very disturbed and made it clear that [the plaintiff's] action was inappropriate and unacceptable.” When asked about the comments ascribed to him on the personnel/human resources form, Dr. Tolat testified at his deposition: “No, I asked the nurse who was taking care of the patient in the morning to contact the nurse manager because this was something I have never seen before, and in general not an acceptable form of care, so I did state to that nurse, and I had no idea who this other nurse [who cut the plastic sheathing] was or who the parties were involved with this, that this in general is not a common occurrence and because of its—and in ten years of practice I have never seen anybody strip a wire and I have never heard of it in any professional organizational type meetings.”
The issue, then, is whether the allegations in the plaintiff's complaint and the documents submitted in connection with her objection to the defendants' motion for summary judgment were sufficient to demonstrate the existence of a genuine issue of material fact as to whether her discharge was in violation of an important public policy. Before making that determination, however, the defendants' claim that the plaintiff never identified an important public policy must first be addressed. The complaint clearly alleges that “[s]aving a person's life is a substantial public policy,” and that “[t]he [d]efendants' attempt to cover up their liability exposure, by firing the one person who stepped up to the plate to save a man's life, is improper and violates public policy.” As a preliminary matter, therefore, it must be determined whether saving a patient's life under the circumstances as alleged in this case can constitute a strong public policy that would preclude the plaintiff's discharge on the basis of such conduct. I conclude that it does.
In their motion for summary judgment, the defendants argued that the plaintiff cited no “explicit statutory or constitutional provision” in support of her claim that saving lives constitutes an important public policy. (Emphasis omitted.) The trial court agreed that the plaintiff failed to cite “a relevant public policy that was violated by her termination under the circumstances.” Although the plaintiff did not refer to a statute or constitutional provision with respect to this claim, I conclude that her dismissal for the saving of the patient's life, as alleged, would constitute a discharge in violation of a judicially conceived notion of public policy. See Gagnon v. Housatonic Valley Tourism District Commission, supra, 92 Conn.App. at 844, 888 A.2d 104.
It is not surprising that there is no legislation or constitutional provision that explicitly confirms that saving a person's life, if possible, constitutes a sound public policy in the state of Connecticut. It would seem unnecessary to legislate the foundational mission of saving life shared by attending medical staff when a patient is failing while in emergency care, for lack of the appropriate medical equipment. As stated by our Supreme Court in Parsons v. United Technologies Corp., 243 Conn. 66, 85, 700 A.2d 655 (1997), a case in which the plaintiff claimed wrongful termination of employment for his refusal to travel to Bahrain at the time a travel advisory had been issued by the United States Department of State, “common sense and human experience dictate that the plaintiff's assignment to ... Bahrain could pose a significant threat to the plaintiff's safety and welfare.” (Emphasis added.)
Moreover, even if not directly related to employment claims, the rescue doctrine and General Statutes § 52–557b, Connecticut's good Samaritan law, at the very least are reflective of a recognized policy that those individuals who put themselves at risk in order to render emergency assistance to others merit protection from liability if certain adverse consequences occur.
Also, as pointed out in State v. Duhaime, 33 Conn.Supp. 129, 138–39, 365 A.2d 837 (1976), warrantless searches by law enforcement officers have been judicially sanctioned when entry was made to save lives. See Vauss v. United States, 370 F.2d 250, 252 (D.C.Cir.1966) ; United States v. Dorman, 294 F.Supp. 1221, 1225 (D.D.C.1967).
Connecticut additionally recognizes a “public safety exception” to admit statements given in the absence of being advised of Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As stated in State v. Betances, 265 Conn. 493, 503, 828 A.2d 1248 (2003), “[s]everal state and federal courts in other jurisdictions ... have applied the public safety exception to situations involving a concern for an individual's safety, including police officers, victims and defendants.” The court held: “We agree with these courts that the public safety exception applies to individual members of the public, including defendants, as well as to the public at large.” Id., at 504, 828 A.2d 1248 ; see also State v. Bardales, 164 Conn.App. 582, 591, 137 A.3d 900 (2016) (“concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda ”).
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Having determined that saving a person's life can constitute an important public policy, I now look to the allegations in the plaintiff's complaint and the documents submitted in connection with her objection to the defendants' motion for summary judgment to determine whether they were sufficient to demonstrate the existence of a genuine issue of material fact as to whether her discharge was in violation of that public policy. Although the plaintiff's complaint alleges a sufficient claim for wrongful discharge in violation of an important public policy, the defendants maintain that there is no genuine issue of material fact because her employment was terminated for her violation of the hospital's policy prohibiting the alteration of medical equipment. The reason for the plaintiff's discharge clearly is in dispute. Because this is the defendants' motion for summary judgment, they must demonstrate the absence of a genuine issue of material fact.
“[T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment.... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward ... evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.” (Internal quotation marks omitted.) Mills v. The Solution, LLC, 138 Conn.App. 40, 62, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012). “[W]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.” Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229–30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
In the most recent guidance of a panel of this court: “Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.... Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment .... [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings.” (Internal quotation marks omitted.) Capasso v. Christmann, 163 Conn.App. 248, 259, 135 A.3d 733 (2016).
On the basis of the record in this case, as detailed in this opinion, I conclude that the court improperly granted the defendants' motion for summary judgment as to this claim because a genuine issue of material fact exists as to the reason for the plaintiff's discharge. “Even assuming that the plaintiff faces a difficult challenge in ultimately proving its case at trial, that assumption cannot form the basis for granting a motion for summary judgment. So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried.” (Internal quotation marks omitted.) Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 631, 57 A.3d 391 (2012). For these reasons, I would reverse the trial court's judgment with respect to the plaintiff's count alleging wrongful discharge in violation of an important public policy.
Accordingly, I respectfully dissent.