Fayette nurses claim wrongful termination

By Chris Dickerson | Jul 5, 2006

CHARLESTON – Three Fayette County nurses say they were wrongfully fired from their jobs for speaking out about quality of care issues at a nursing home.

LPNs Hubert Atkins II and Michelle Gill and RN Pamela Givens filed their lawsuit June 28 in Kanawha Circuit Court against Beverly Health and Rehabilitation Services Inc. and RN Jean Lavender.

They "observed numerous quality of care issues pertaining to residents of (the) Glasgow facility including, but not limited to, nurses falsifying medical charts and substandard patient care," they say in their complaint. "Plaintiffs repeatedly complained about the quality of care issues to managers and supervisors."

Based in Fort Smith, Ariz., Beverly operates 354 nursing homes and 18 assisted living facilities across the United States, including homes in Kanawha and Fayette counties in West Virginia. Lavender, who also lives in Fayette County, was director of nursing services at Beverly's Glasgow facility in Fayette County.

Shortly after beginning his job there in June 2005, Atkins says he complained that a nurse was falsely charting a resident's treatment. The next day, he says Lavender called him to her office.

She told him "he did not want the reputation of being a 'trouble maker' and that he did not want to be known as a 'tattle tale,'" the suit claims. "The quality of care issue raised by Atkins was ignored."

In December 2005, Gill complained to corporate office that health care providers did not timely report signs and symptoms of circulatory problems with a resident's leg. The leg was amputated a short time later.

Lavender told her the complaint was unsubstantiated because "the resident would have lost his leg anyway," the suit states, noting that Gill was suspended within weeks of her complaint. "The reason given for Gill's suspension was merely a pretext for unlawful retaliation."

On March 9, 2006, Atkins and Gill say they observed a resident whose wound dressing had not been changed in nearly two weeks despite an order from physician that dressing must be changed daily.

"The resident's dressing was black and appeared to be covered with mold and/or fungi," says the suit, filed by attorneys C. Benjamin Salango and J.B. Akers II. "The dressing was labeled '2-24-06,' the date of its application. The resident's medical chart improperly stated that the dressing had been changed daily."

Atkins and Gill reported it to Givens, who advised Lavender and Bernice Kirik, executive director and assistant director of nursing services, the next day.

"Lavender nonchalantly stated that this error was a simple oversight," the complaint states.

On March 15, the plaintiffs say they met with Kirik to complain about quality of care issues and the temperament and inappropriate conduct of Lavender.

Eight days after that meeting, Atkins was fired. He says he was told Beverly would "go for his license" if he filed for unemployment compensation benefits.

About a month after meeting, Gill was fired. Then, "Lavender willfully and maliciously reported to the West Virginia State Board of Examiners for Licensed Practical Nurses that … Gill was discharged for neglect in an attempt to restrict, suspend or revoke Plaintiff Gill's nursing license."

The Board dismissed Lavender's complaint for lack of probable cause.

After the March 15 meeting, Givens' duties were changed. She says she then was subjected to hostile treatment by Lavender and other employees who "created a hostile working climate which was so intolerable that Plaintiff Givens was forced to leave her employment."

The plaintiffs say they are victims of wrongful discharge, which is a violation of the West Virginia Human Rights Act.

They also invoke the tort of outrage.

"Defendants' actions were so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," the suit says.

They also say they suffered severe emotional distress.

Another count against Lavender goes after her abuse of process and malicious prosecution for reporting Gill to the LPN board.

The plaintiffs seek back pay, front pay, non-economic damages, punitive damages plus court costs, attorney fees, pre- and post-judgment interest and other relief.

The case has been assigned to Circuit Judge Jennifer Bailey Walker.

Kanawha Circuit Court case number: 06-C-1263

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