Rebecca Swisher V Braxton County Memorial Hospital Inc

Key Facts

Issues

• The primary legal question is whether the West Virginia Patient Safety Act (WVPSA) qualifies as a 'substantial public policy' under Harless v. First National Bank that would protect health care workers from retaliatory discharge. The court examined whether the WVPSA's definition of 'wrongdoing' encompasses a health care worker's report of being assaulted by a third party, and whether the statutory scheme satisfies the clarity and jeopardy elements required for a Harless claim. The circuit court found the WVPSA could not establish public policy because the statute's legislative purpose was repealed in 2021 and the incident report did not allege wrongdoing as defined by the statute.
• Ms. Swisher contends that the circuit court's grant of summary judgment deprived her of her right to a jury trial. The appellate court determined that summary judgment is a matter of law that does not infringe upon the constitutional right to a jury trial, as it is a determination that there is no issue of fact to be tried. Since the circuit court properly found no genuine issue of material fact as a matter of law, Ms. Swisher was not deprived of her jury trial rights.
• The circuit court granted the Hospital's motion for summary judgment, dismissing Ms. Swisher's wrongful termination claims with prejudice. The appellate court reviewed whether this was proper under the de novo standard of review, considering whether Ms. Swisher met her burden to produce evidence sufficient to create a genuine issue of material fact. The court found that Ms. Swisher failed to adequately support her claims with specific evidence or authority, and her generalized arguments did not overcome the Hospital's affirmative evidence that there was no genuine issue of material fact.

Holdings

Remedies

Legal Principles

• The West Virginia Patient Safety Act (WVPSA) defines wrongdoing narrowly as a violation of law, rule, regulation, or professional/clinical standard relating to care, services, or conditions that potentially endangers patients or workers. The court found the WVPSA does not establish clear public policy for Harless claims because the statute's legislative purpose was repealed in 2021 and the definition of wrongdoing does not encompass complaints about third-party assault by hospital visitors.
• The court applied the Harless v. First National Bank common law test for wrongful termination claims, which requires that an employer's discharge violate a substantial public policy. The court also applied the Feliciano v. 7-Eleven four-factor test (clarity, jeopardy, causation, and overriding justification elements) to determine whether a statutory scheme establishes public policy under West Virginia law.
• The court applied de novo standard of review for summary judgment decisions. The summary judgment procedure does not infringe upon the constitutional right to a jury trial; it determines as a matter of law that there is no issue of fact to be tried. Summary judgment is appropriate only when no genuine issue of material fact exists.
• In a summary judgment context, the nonmoving party must produce more than a mere scintilla of evidence and must offer evidence sufficient for a reasonable jury to find in their favor. The party opposing summary judgment must either rehabilitate attacked evidence, produce additional evidence showing a genuine issue for trial, or submit an affidavit explaining why further discovery is necessary.

Precedent Name

• Painter v. Peavy
• Feliciano v. 7-Eleven, Inc.
• Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York
• Camden-Clark Memorial Hospital Corp. v. Tuan Nguyen
• Williams v. Precision Coil, Inc.
• Harless v. First National Bank in Fairmont

Cited Statute

• West Virginia Patient Safety Act - Wrongdoing Definition
• West Virginia Whistle-Blower Act
• West Virginia Code § 6C-1-2
• West Virginia Patient Safety Act - Retaliation Protection
• West Virginia Code § 51-11-4
• West Virginia Patient Safety Act - Legislative Purpose (Repealed)
• West Virginia Patient Safety Act - Retaliation Claim
• West Virginia Patient Safety Act - Visitation During Emergency

Judge Name

• Chief Judge Charles O. Lorensen
• Judge Daniel W. Greear
• Judge S. Ryan White

Passage Text

• The circuit court granted summary judgment because Ms. Swisher failed to produce evidence that her February 6, 2022, report was a good faith report of wrongdoing as defined in West Virginia Code §16-39-3. She offered generalized statements and hypotheticals rather than specific evidence, and her response in opposition to summary judgment neither rehabilitated evidence nor produced additional evidence to establish a genuine issue of material fact.
• The circuit court determined that Ms. Swisher's incident report did not expressly allege any wrongdoing as defined by WVPSA §16-39-3. Her complaint stated she was pushed by a Hospital visitor attempting to visit their dying parent, which does not meet the statutory definition of wrongdoing that requires a violation of law, rule, regulation, or professional/clinical standard that potentially endangers patients or workers.
• The circuit court found that the WVPSA cannot satisfy the clarity element of Feliciano because Camden-Clark's public policy argument relied on the legislative purpose of WVPSA under West Virginia Code § 16-39-2, which no longer exists. The WVPSA contains no savings clause, and thus earlier SCAWV decisions could not establish the WVPSA as public policy through cases issued prior to the 2021 amendments.