Kasey Cahan, Appellant/cross-respondent V. Franciscan Health System, Respondent/cross-appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KASEY CAHAN, an individual,

No. 80731-5-I

Appellant/Cross-Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

FRANCISCAN HEALTH SYSTEM, a

Washington public benefit corporation,

d/b/a ST. FRANCIS HOSPITAL,

Respondent/Cross-Appellant.

COBURN, J. — After she was terminated by St. Francis Hospital, registered

nurse (RN) Kasey Cahan sued Franciscan Health System for wrongful

termination in violation of public policy. 1 The trial court summarily dismissed

Cahan’s claim. It concluded that Cahan’s termination implicated public policy but

Cahan failed to raise a genuine issue of material fact as to the causation element

of her claim, i.e., whether the hospital’s reasons for terminating Cahan were

pretextual or her allegedly public-policy-linked conduct was nonetheless a

substantial motivating factor in her termination.

1 In its answer to Cahan’s complaint, Franciscan admitted Cahan’s

allegation that Franciscan “is a health care organization and a Washington public

benefit corporation . . . , doing business as St. Francis Hospital.” On appeal,

Franciscan avers that it “is not doing business as St. Francis Hospital,” and

instead, the hospital “is a separate entity operating under the corporate umbrella

of Franciscan Health System dba CHI Franciscan Health.” Franciscan does not

argue that the nature of its relationship to the Hospital is relevant to any issues

on appeal and, thus, we need not resolve it.

Citations and pin cites are based on the Westlaw online version of the cited material.

No. 80731-5-I/2

We hold that Cahan fails as a matter of law to establish that her

termination may have been motivated by reasons that contravene a clear

mandate of public policy. Accordingly, we affirm on that basis and need not

reach the issue of causation.

BACKGROUND

Facts

Before her termination in July 2018, Cahan had been employed by the

hospital for 23 years—the last 15 as an RN in the perioperative services unit.

According to Cahan’s later declaration, perioperative services “is comprised of

multiple units that manage the different phases of patient care for elective

surgeries.” “These include the Pre-Admission Clinic where Pre-Admission

Testing (‘PAT’) occurs, the Same-day Admit and Discharge Unit (‘SADU’), and

the Post-Anesthesia Care Unit (‘PACU’).” “The nurses in these units interact with

the patients in both the pre-surgical and post-surgical phases of their care.”

From mid-2014 until her termination, Cahan’s supervisor in the perioperative

services unit was Hannah Bennett. Bennett’s supervisor throughout 2017 until

the end of May 2018 was Amanda Brandon, who was later replaced by Lorie

Khorsand.

It is undisputed that at all times relevant herein, hospital policy required

doctors to transmit certain documentation to the perioperative services unit

before their patients arrived there. It also is undisputed that some doctors were

not timely transmitting that documentation, which included doctors’ orders,

consent forms, and history and physical (H&P) documentation. And, it is

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undisputed that the job of tracking down missing documentation, including calling

doctors, fell on nurses, and that nurses in the perioperative services unit,

including Cahan, experienced frustration when patients would arrive without their

documentation being available yet in the hospital’s database. In her later

deposition, Bennett described the situation as follows:

I would say we had been struggling with some inefficiencies and

staff frustration around having the required documentation to feel

efficient at their work, and it had been an ongoing issue actually for

a number of years that staff had raised concerns about the issue of

inefficiency and having to stop during admission and call the doctor

and kind of work stoppage-type issues.

On December 12, 2017, Cahan emailed Aileen Geerings, the hospital’s

Risk Manager, regarding patients arriving without doctors’ orders:

The question has come up multiple times regarding the nurse's

liability for a surgical admission that comes to the SADU without

orders. There are several patients that come to us for surgery that

do not have orders from their doctors pre admission. Can we bring

the patient back to a room if they do not have orders? Can we do

vitals and have them disrobe and use surgical wipes? Is there an

added level of liability if we DO check vitals, for example a blood

pressure, and it is high? Who do we call at that point if we do not

have orders to treat the patient? We have been calling anesthesia if

we can't get a hold of the surgeon but are they the right choice?

Procedure patients that are only receiving sedation do not have an

anesthesiologist. Also, the CHG[2] wipes are considered a standard

doctor's order. Can the patient use them without official orders?

Many patients have sensitive skin and have reacted to the wipes. If

the patient uses them as standard protocol and has a reaction to

the CHG wipes is the admit nurse liable for the reaction if there

were no written doctor's order? Can we do an IV[3] under the

Anesthesia standard orders? What about the procedure patients?

Again, they do not have anesthesia but often come without orders

pre procedure.

2 “CHG” is not defined in the record but presumably stands for

“Chlorhexidine Gluconate.”

3 Intravenous drip.

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No. 80731-5-I/4

We DO try to call the doctors but many of our patients arrive at

0500 and reaching the doctor is not possible at that hour. (The

doctor on call doesn't want to write orders for another doctor's non

emergent surgical patients).

This has been an ongoing issue and there have been too many

incidents where we are being told to bring the patients back to

begin their admissions BEFORE we get actual orders or an H and

P or a consent.

If you could provide some clarity to this issue it would be greatly

appreciate[d]. There is confusion as to what we, the nurses, are

allowed to do with our licensure without over stepping our bounds

and would really appreciate your input.

That same day, Cahan sent the same email to Christopher Peredney, the

hospital’s clinical nurse specialist. Peredney responded less than an hour later:

Thanks for the email bringing up the issues. There are a lot of

questions to address so it may take me until the end of the week.

I have meetings today from 1300 to 1600, so I will not be able to

start working on it until tomorrow, but I will work on it and get you

some answers. Here are a few excerpts from relevant policies. And

once you see the policy language you will see that the practice you

describe is not in line with policy.

I am also attaching the document for community providers and the

case request process for FMG[4] docs. Both require orders to

schedule a case, thus should really be there prior to the patient

coming in.

More to come.

Appended to Peredney’s response were excerpts from relevant hospital

policies, including an excerpt that Peredney indicated meant “per policy they are

supposed to have orders in 2 days before surgery.”

Peredney followed up with another email the next morning writing:

I spoke with [Bennett] and she gave me some perspective and let

me know that she is aware of the issue of “Missing Orders” and is

looking into it.

4 “FMG” is not defined in the record but presumably stands for “Franciscan

Medical Group.”

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As far as truly invasive interventions such as IV starts and port

access I think we are all on the same page that we need to ensure

that there is an order before proceeding. The anesthesia preop

order set is actually embedded in the preop surgical orders. So if

there are not surgical orders there are probably not anesthesia

preop orders. If it is a surgical patient then there probably is a[n]

anesthesia provider who could give at least a verbal order to start

IV, pending the full order set. But my understanding is that this is

not occurring with surgical patients but more with procedural areas.

For vitals, getting the patient changed, and even CHG wipes we are

working off a protocol that would cover the nurse from “liability”. It

seems like a lot of the “orders not present” may be occurring with

DI/IR[5] patients and I do not believe the CHG is used for them.

To address the CHG in more detail. I had initially thought that an

order would be required. But after speaking with inpatient

leadership a[s] well as regulator compliance and risk, we

determined that operating by an established protocol/policy would

be sufficient to cover the nurses from any “liability” of use. Of

course we want to ask the patient if they have any known

sensitivities to CHG we would not want to use it. And if they have

very sensitive skin a test application may be warranted. But I would

think that the number of surgical patients that do not have an order

is small because having orders is part of the case scheduling

process in the policies I sent yesterday.

[Bennett] let me know she is working on this issue and would

appreciate notification anytime this occurs so that she can address

it in real time.

Let me know if this answers your questions and please don’t

hesitate to let me know what I can do to help.

Geerings also responded to Cahan on December 13, 2017:

Thank you for your questions below. You should have orders to

execute prior to the patient arriving to SADU. At the very least you

should have an order for the procedure being performed. I strongly

recommend bringing these concerns to your unit manager or if you

would like you can also complete an IRIS[6] anonymously and it

would go directly to [Bennett] for review. Behavioral issues with

5 “DI/IR” is not defined in the record but presumably stands for “Diagnostic

Imaging/Interventional Radiology.”

6 “IRIS” refers to an internal system used to record policy concerns.

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No. 80731-5-I/6

medical staff providers such as providers not writing orders would

go to me for additional review. Behavioral issues are forwarded to

the medical director and vice president of medical affairs for review.

We also look to see if there is a particular provider who consistently

does not follow the standard. We look for trends and address them

appropriately.

Is there a way to ensure that patient[s] have orders prior to coming

to surgery for admission[?] What is your current practice? Do you

have staff responsible for checking the documents necessary to

proceed prior to the day of surgery? My recommendation is to

ensure that you have orders prior to proceeding to reduce your risk

for liability. Another important info that I wanted to relay is that after

the admission assessment, it’s the nurse responsibility to

communicate . . . any abnormal findings to the surgeon. If you are

not able to get a hold of the provider, please escalate the concern

to your charge nurse. We do have a chain of command

(communication) policy which you can follow to help resolve patient

safety issues.

Let me know if you have any further questions. I will be happy to

assist.

On December 13, 2017, Cahan forwarded Peredney’s initial response to

Bennett and Brandon. Bennett responded as follows the same day:

Thank you for bringing your concerns forward. I know we've had

discussion about these concerns recently and I'm sorry if some of

your questions weren't resolved.

It sounds like there are a few separate concerns you are referring

to:

• Pre-surgical patients without orders on DOS.[7]

• Pre-procedural patients without orders on DOS.

• Post-procedural patients being transferred to SADU without

orders.

Did I capture that correctly?

Regarding pre-surgical patients not having orders on the day of

surgery: would it be possible to track these for me? We are tracking

compliance up to the day before surgery, but our current process is

to include a call to me if documentation isn't obtained by 1300 day

7 “DOS” is not defined in the record but presumably stands for “day of

surgery.”

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No. 80731-5-I/7

before surgery. We can use anesthesia protocol for some basic

orders and if the patient is having anesthesia, they are the right

provider to call regarding abnormal vital signs. CHG wipes fall

under the policy and don't require an order. They are non-invasive

and can be purchased over the counter.

For pre-procedural patients, I need to know which providers do not

have pre-procedural orders in. I have spoken with Jim Shreve

within the past month regarding this concern and he is happy to

follow up with specific providers.

For post-procedural patients, I agree the orders should be in when

the patient comes to us. I will continue to work with Peggy Coltrin

and Jim Shreve on this concern. I had asked staff to please IRIS

patients who don't have orders in within 15 minutes of transfer to

SADU or PACU. I haven't seen any IRIS's regarding this yet. I know

IRIS takes extra time, but it is helpful to track issues, especially

related to providers. I would be happy to receive an email as well.

An example email or IRIS would say:

“I received a liver BX patient of Dr. Chen's today from IR at 1230.

There were no post-procedure orders in Epic. I called him to ask

that orders be placed. The orders were not in Epic until 1300. This

delayed my ability to provide care for the patient.”

I understand the frustration and anxiety this causes and I want to

resolve it. It would be helpful to have specific incidents to refer to

hold providers accountable. It is difficult to make effective changes

with blanket statements, unfortunately we need specifics. If you can

help me with that part, I would be grateful.

In a subsequent response to Bennett, Cahan wrote that “[Peredney]

indicated that we should not take patients at all without orders so now I am

genuinely confused.” She also wrote, “I personally don’t feel comfortable in

taking these patients any more.”

On December 27, 2017, Cahan refused to admit a patient from the

Interventional Radiology (IR) lab without orders. That same day, Brandon

emailed Peggy Coltrin, the clinical manager of the laboratory that sent the

patient, writing:

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No. 80731-5-I/8

Mike in the cath lab just sent us a patient without MD orders and

without report. . . .

When Mike called to tell SADU the patient was coming, Kasey

Cahan, SADU RN told Mike that the patient must have post op

orders to come to SADU. Mike then called for a transporter to

deliver the patient to SADU without report and without orders. This

patient has multiple illnesses. This is a patient safety issue. When

[Cahan] called Mike, he told her that “it was not my patient.”

Peggy, the OR[8] no longer sends patients to PACU without orders.

We have managed to get this under control. We are reaching the

critical point very quickly that we will no longer accept patients

when they have no MD orders. Please make sure the doctors

know that this is not going to continue to occur. We are also feeling

a fair amount of flippancy from the Cath Lab RN’s when this is

occurring which also needs to stop.

About six months later, the hospital terminated Cahan. According to a

discharge letter dated July 11, 2018, the hospital terminated Cahan for refusing

to meet to discuss a performance improvement plan (PIP) that was issued to

assist Cahan in correcting identified performance issues.

Procedure

In September 2018, Cahan sued Franciscan for wrongful termination in

violation of public policy. She alleged that the hospital had retaliated against her

for reporting noncompliance with the hospital’s policies regarding pre-operative

orders and for refusing the IR patient who had arrived without orders.

In August 2019, Franciscan moved for summary judgment, and Cahan

moved for partial summary judgment. In her motion, Cahan argued that the court

should determine as a matter of law that “Cahan has satisfied the public policy

element of her wrongful termination claim,” thus leaving only “matters of

8 Operating Room.

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No. 80731-5-I/9

causation and damages” for trial. In its motion, Franciscan argued that as a

matter of law, Cahan’s termination did not implicate a “clear mandate of public

policy,” and even if it did, Cahan could not “prove that her alleged public-policy-

linked conduct was a ‘significant factor’ in her discharge.” Instead, Franciscan

asserted Cahan was fired for her refusal to meet with managers about a PIP after

being warned about her “ ‘bullying and confrontational’ ” behavior.

In support of its motion, Franciscan submitted an affidavit from Bennett in

which she attested, that between April and November 2017, she spoke with

Cahan to discuss at least six instances in which Bennett concluded Cahan had

engaged in inappropriate behavior toward Bennett or another employee. Bennett

supported her affidavit with records memorializing her discussions. An April 24,

2017 counseling record described an incident where Cahan told a colleague,

“ ‘You are just like a rat, trying to jump off the ship.’ ” According to the counseling

record, the colleague perceived the comment as rude and offensive, and Cahan

was counseled to refrain from making rude statements to colleagues. An April

26, 2017 a counseling record described an incident where Cahan was telling

other staff members that a former colleague had been fired when in fact she had

been laid off. In a June 20, 2017 “Written Warning,” Bennett wrote to Cahan,

“[T]here have been a number of incidents where your behavior did not meet

behavioral standards . . . You were counseled about these incidents at the time;

however, you appear to have established a pattern of continuing unacceptable

behavior.” The written warning described a September 2015 staff meeting in

which Cahan had become “defensive, argumentative . . . and personal with

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others in the room” and a June 2017 staff meeting in which Cahan disregarded

Bennett’s directive to stop after Cahan “brought up a personal issue about a co-

worker who was not present, related to an HR issue.” The written warning also

stated, “Please be advised that continued unacceptable behavior issues,

especially issues similar to those described above, will result in additional

corrective action which may include your discharge from employment.”

An October 25, 2017 counseling record described an incident in which

Cahan had given “forceful feedback” to Bennett that a staffing issue had not been

managed well. According to the counseling record, Cahan’s comments were not

founded, and Bennett later coached Cahan that it was unprofessional to have

given the feedback to Bennett in front of the SADU team. Bennett wrote that

Cahan’s response was, “ ‘I don’t operate in shadow, and I say what I think,’ ” and

that Cahan indicated that she “didn’t really care to hear [Bennett’s] feedback.” A

November 20, 2017 counseling record described an incident where Cahan left a

patient in SADU without giving a proper handoff to the evening shift staff. And

another counseling record, also dated November 20, 2017, stated that during a

recent staff meeting, Cahan “made undermining comments regarding not

receiving education” prior to starting a new program. According to the counseling

record, Bennett explained to Cahan during the meeting that she had been

working to set up the relevant education but that it had not been arranged yet

due to scheduling conflicts. Bennett indicated that Cahan continued to push the

issue in the meeting in a confrontational tone, which Bennett described as

disrespectful, abrasive, and confrontational.

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No. 80731-5-I/11

According to Bennett’s affidavit, on December 28, 2017 (i.e., the day after

Cahan had refused to admit the patient who had arrived from the IR lab without

orders) Bennett learned of an interaction between Cahan and a colleague, Marva

Johnson, that left Johnson visibly upset. In an excerpt from Bennett’s later

deposition that was also submitted in support of Franciscan’s summary judgment

motion, Bennett recalled that she had been instructed by HR to investigate and to

put Cahan on leave pending the investigation. Bennett testified she met with

employees who had witnessed the exchange between Cahan and Johnson, and

“as they were explaining what happened, [Bennett] was typing up what they

said.” Bennett testified she then had them review the statement to confirm it was

accurate and then sign it. One employee witness’s statement described Cahan’s

tone as “elevated and aggressive”; another described her demeanor as “rude

and aggressive toward [Johnson]”; and a third described Cahan’s tone as

“elevated and rude.” Two witness statements indicated that the interaction

occurred in the presence of patients and visitors who were in the lobby at the

time.

Franciscan presented evidence that after investigating, Bennett concluded

that Cahan’s behavior was inappropriate and issued Cahan a “Final Warning in

Lieu of Suspension.” In it she wrote to Cahan that the purpose of the final

warning was “to convey to you the urgent need for you to correct the behavior

issues referenced above” and that “further behavior issues may result in further

corrective action, which would result in your discharge from employment.”

Franciscan also presented evidence of two additional incidents involving

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No. 80731-5-I/12

Cahan that occurred after Bennett issued the final warning in January 2018. The

first occurred in May 2018. Bennett testified, that on May 18, 2018, it was

brought to her attention by the charge nurse that “there had been some switching

of assignment[s] happening, which then led to a delay in lunch relief starting.”

According to a counseling record that Bennett prepared following the incident,

Cahan had switched assignments with another nurse without notifying or getting

permission from the nurse in charge. Bennett testified that when she tried to ask

Cahan about it, Cahan “immediately got defensive,” would not allow Bennett to

finish speaking, and walked away from Bennett when Bennett tried to explain

why she was asking questions.

The second incident occurred on June 7, 2018. According to Bennett, she

had received a call that morning that the Department of Health was in the

hospital and that staff should be “ ‘on [their] toes.’ ” Bennett testified that when

she explained to Cahan and another nurse some of the things they should do to

prepare, Cahan “didn’t respond at all.” According to a report Bennett prepared

that day, Cahan “never looked up to acknowledge what [Bennett] said, and

continued working on the computer and looking at her phone[ and] . . . blatantly

ignored what [Bennett] was saying.”

Bennett declared that after the June 7, 2018 incident, she believed the

next disciplinary step would be termination given that she had issued a final

warning to Cahan in January 2018. Bennett emailed regional human resources

(HR) director Mason Hudson indicating that she “would like to investigate and

move to termination.” Bennett declared that Hudson instructed her to set up a

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meeting with HR and Cahan, and that on June 8, 2018, she and Cahan met with

HR manager Les Soltis. Bennett declared that she learned later that HR had

decided to issue a suspension and PIP to Cahan rather than terminate her.

According to an excerpt from Cahan’s deposition, which Franciscan also

submitted in support of its motion, on June 19, 2018, Cahan met with Hudson,

Bennett, and Khorsand. At the meeting, Cahan was issued a written suspension,

which confirmed that Cahan would “be issued a [PIP] designed to assist you in

meeting our expectations.” Cahan testified that at the June 19 meeting, Hudson

told her that she would have to meet with Bennett regarding the PIP, Cahan told

Hudson she would not meet without a witness, and Hudson told her that she

could not have a witness. According to Bennett’s deposition, several days later,

after the PIP had been approved by HR, she and Stephanie Tomlin, another

manager, attempted to meet with Cahan to discuss the PIP. Bennett testified

that Cahan again indicated that she would not meet without a witness, and that

after conferring with HR, Bennett told Cahan, “ ‘I just want to make sure you

understand failure to meet will—could result in your discharge from

employment.’ ” Bennett testified that Cahan responded, “ ‘I know that. [Soltis]

already told me that,’ ” and then took her badge off and handed it to Bennett.

Cahan testified that was her last day at the hospital, and she later received a

letter from the hospital, dated July 11, 2018, indicating that it was “processing

[her] discharge from employment effective immediately.”

The trial court granted summary judgment in favor of Franciscan. In so

doing, the court concluded that there existed clear public policies mandating that

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No. 80731-5-I/14

“RNs must have provider orders and informed consent before they begin

admin[i]stering care to patients as part of a surgery or procedure to be compliant

with their licenses and fiduciary obligations.” It also concluded that Cahan had

raised a genuine issue of material fact as to whether her December 2017

conduct constituted whistleblowing with regard to these stated policies.

However, the trial court concluded further that Franciscan articulated “a

legitimate nonpretextual nonretaliatory reason” for Cahan’s termination, and

Cahan “failed to meet her burden to present evidence that the firing was

pretextual, or that her conduct in December 2017 was a substantial motivating

factor in her termination.” Accordingly, the court summarily dismissed Cahan’s

wrongful termination claim. Cahan moved for reconsideration, which the trial

court denied. Cahan appeals. Franciscan cross-appeals arguing that the trial

court “erred when it concluded that Cahan identified clear mandates of public

policy applicable to her claims.”

DISCUSSION

Standard of Review

“[S]ummary judgment is appropriate where there is ‘no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.’ ” Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965

(2012) (second alteration in original) (quoting CR 56(c)). We review summary

judgment orders de novo, viewing all evidence and reasonable inferences in the

light most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358,

370, 357 P.3d 1080 (2015). And, we may affirm on any basis supported by the

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record. 9 Bavand v. OneWest Bank, 196 Wn. App. 813, 825, 385 P.3d 233

(2016). We review questions of law, including whether Washington has

established a clear mandate of public policy, de novo. Danny v. Laidlaw Transit

Servs., Inc., 165 Wn.2d 200, 207, 193 P.3d 128 (2008) (plurality opinion).

Termination in Violation of Public Policy

Absent a contract to the contrary, employees are generally terminable “at

will,” i.e. for any reason. Id. In Thompson v. St. Regis Paper Co., our Supreme

Court adopted an exception to this general rule by recognizing “a cause of action

in tort for wrongful discharge if the discharge of the employee contravenes a

clear mandate of public policy.” 102 Wn.2d 219, 232, 685 P.2d 1081 (1984).

We construe the public policy exception narrowly to guard against

frivolous lawsuits. Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 936, 913

P.2d 377 (1996). Accordingly, claims of termination in violation of public policy

have generally been limited to four scenarios:

“(1) where employees are fired for refusing to commit an illegal act;

(2) where employees are fired for performing a public duty or

obligation, such as serving jury duty; (3) where employees are fired

for exercising a legal right or privilege, such as filing workers’

compensation claims; and (4) where employees are fired in

retaliation for reporting employer misconduct, i.e., whistleblowing.”

Becker v. Cmty. Health Sys., Inc., 184 Wn.2d 252, 258-59, 359 P.3d 746 (2015)

(quoting Gardner, 128 Wn.2d at 936). 10 Here, both parties treat Cahan’s

9 For this reason, a cross-appeal was not necessary for Franciscan to

raise its argument that Cahan’s termination did not implicate public policy

because this argument merely presents an alternative basis for affirming the trial

court’s summary dismissal of Cahan’s claim.

10 When the plaintiff’s case “does not fit neatly within one of these

scenarios,” courts apply the four-factor “Perritt analysis” for guidance. Becker,

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December 2017 conduct as whistleblowing for purposes of this appeal. 11

A plaintiff alleging termination in violation of public policy bears the initial

burden to show that his or her discharge “ ‘may have been motivated by reasons

that contravene a clear mandate of public policy.’ ” Martin v. Gonzaga Univ., 191

Wn.2d 712, 725, 425 P.3d 837 (2018). The plaintiff must also produce evidence

“that the public-policy-linked conduct was a cause of the firing, and may do so by

circumstantial evidence.” Id. “If the plaintiff succeeds in presenting a prima facie

case, the burden then shifts to the employer to ‘articulate a legitimate

nonpretextual nonretaliatory reason for the discharge.’ ” Id. at 725-26 (quoting

Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 70, 821 P.2d 18

(1991)). “If the employer articulates such a reason, the burden shifts back to the

plaintiff either to show ‘that the reason is pretextual, or by showing that although

the employer’s stated reason is legitimate, the [public-policy-linked conduct] was

184 Wn.2d at 259. To satisfy his or her burden under the Perritt analysis, the

plaintiff must prove (1) “the existence of a clear public policy (the clarity

element)”; (2) “that discouraging the conduct in which they engaged would

jeopardize the public policy (the jeopardy element)”; (3) “that the public-policy-

linked conduct caused the dismissal (the causation element)”; and (4) that the

employer cannot “offer an overriding justification for the dismissal (the absence of

justification element).” Gardner, 128 Wn.2d at 941.

11 Therefore, the Perritt analysis does not apply. See Martin v. Gonzaga

Univ., 191 Wn.2d 712, 724, 524 P.3d 837 (2018) (holding that the Court of

Appeals erred by applying the Perritt test to a whistleblowing claim). Cahan

asserts that her refusal to admit the IR patient also falls within the first scenario,

i.e., refusal to commit an illegal act. But Cahan does not point to any evidence

that admitting or caring for that patient would have constituted an illegal act. In

any case, as discussed below, Cahan does not establish that her conduct,

however characterized, implicated public policy. Accordingly, whether Cahan’s

conduct also constituted refusal to commit an illegal act does not affect the

outcome of this appeal, and thus, we need not make a determination in that

regard.

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nevertheless a substantial factor motivating the employer to discharge the

worker.’ ” Id. at 726 (quoting Wilmot, 118 Wn.2d at 73).

Here, and as further discussed below, Cahan fails to meet her initial

burden to establish that her termination may have been motivated by reasons

that contravene a clear mandate of public policy and, thus, the trial court did not

err by summarily dismissing her claim.

To determine whether a clear public policy exists, the court asks “whether

the policy is demonstrated in ‘a constitutional, statutory, or regulatory provision or

scheme.’ ” Danny, 165 Wn.2d at 207-08 (internal quotation marks omitted)

(quoting Thompson, 102 Wn.2d at 232). “Although judicial decisions may

establish public policy, ‘courts should proceed cautiously if called upon to declare

public policy absent some prior legislative or judicial expression on the subject.’ ”

Id. at 208 (internal quotation marks omitted) (quoting Thompson, 102 Wn.2d at

232).

“To qualify as a public policy for purposes of the wrongful discharge tort, a

policy must be ‘truly public’ and sufficiently clear.” Id. (quoting Sedlacek v. Hillis,

145 Wn.2d 379, 389, 36 P.3d 1014 (2001)); see also Dicomes, 113 Wn.2d at 618

(“ ‘[P]ublic policy concerns what is right and just and what affects the citizens of

the State collectively.’ ” (quoting Palmateer v. Int’l Harvester Co., 85 Ill. 2d 124,

130, 421 N.E.2d 876 (1981))). This is because “the tort of wrongful discharge is

not designed to protect an employee’s purely private interest in his or her

continued employment; rather, the tort operates to vindicate the public interest in

prohibiting employers from acting in a manner contrary to fundamental public

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No. 80731-5-I/18

policy.” Smith v. Bates Tech. Coll., 139 Wn.2d 793, 801, 991 P.2d 1135 (2000).

Cahan does not clearly articulate in her briefs on appeal what she believes

the relevant public policy mandates are. But she asserts that “the Hospital’s

practice of permitting nurses to administer care to pre-surgical and post-surgical

patients without provider orders contravenes public policy.” She also asserts that

“the Hospital’s practice of permitting nurses to admit and administer care to

patients without first obtaining informed consents contravenes public policy.”

Accordingly, we interpret her argument to be that her termination contravened

clear public policies (1) prohibiting nurses from administering care to pre-surgical

and post-surgical patients without provider orders, and (2) prohibiting nurses

from admitting and administering care to patients without first obtaining informed

consents. 12 For the following reasons, we disagree.

In support of the first stated policy, Cahan points to RCW 18.79.040(1)(e),

which defines “registered nursing practice” to include “[t]he executing of medical

regimen as prescribed by a licensed physician and surgeon.” (Emphasis added.)

She also points to WAC 246-840-705(3), which states that RNs function in “an

interdependent role when executing a medical regimen under the direction of

a . . . licensed physician and/or surgeon.” (Emphasis added.) And she points to

12 This interpretation is consistent with her counsel’s formulation at oral

argument, i.e., that the relevant public policies prohibit “administering care by

nurses to patients without receiving or before receiving . . . orders from the

physicians and without obtaining the informed consent of the patients.” Wash.

Court of Appeals oral argument, Cahan v. Franciscan Health System, No. 80731-

5-I (Feb. 26, 2021), at 7 min., 0 sec. through 7 min., 15 sec., video recording by

TVW, Washington State’s Public Affairs Network,

https://www.tvw.org/watch/?eventID=2021021333.

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No. 80731-5-I/19

RCW 18.79.260(2), which states that an RN “may, at or under the general

direction of a licensed physician and surgeon . . . , administer medications,

treatments, tests, and inoculations.” Finally, she points out that under RCW

18.79.120, unlicensed care is subject to discipline under the Uniform Disciplinary

Act, chapter 18.130 RCW.

But none of these statutes or regulations express a clear mandate

prohibiting nurses from administering care in the absence of provider orders.

They do suggest that provider orders are required for nurses to administer

certain types of care, including when functioning interdependently to execute a

“medical regimen” under the direction of a physician or surgeon, or when

administering medications, treatments, tests, and inoculations. But they also

contemplate that nurses will provide other types of care independently by

employing their “specialized knowledge, judgment, and skill.” RCW

18.79.040(1); see also WAC 246-840-705(3) (“The [RN] functions in an

independent role when utilizing the nursing process . . . to meet the complex

needs of the client.” (emphasis added)); RCW 18.79.040(1)(a) (including, in the

definition of “registered nursing practice,” “observation, assessment, diagnosis,

care or counsel, and health teaching”). Cahan points out that the hospital’s

policy states, “ ‘a provider order is required to admit a patient, place a patient in

Observation, discharge a patient, transfer a patient to another physician or facility

or unit, and for all tests, services, therapies, and procedures.’ ” But she cites no

authority for the proposition that an internal hospital policy can establish a clear

mandate of public policy. For the foregoing reasons, we decline Cahan’s

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No. 80731-5-I/20

invitation to declare a public policy prohibiting nurses from administering care to

patients without provider orders. 13 Cf. Sedlacek, 145 Wn.2d at 389 (to balance

interests of employer and employee and ensure judicial restraint, “we cannot

conclude that a clear mandate of public policy exists merely because the plaintiff

can point to a potential source of public policy that addresses the relevant

issue”).

Turning to Cahan’s second assertion of public policy, i.e., a policy

prohibiting nurses from administering care to patients without first obtaining

informed consents, Cahan relies primarily on the informed consent doctrine. See

Stewart-Graves v. Vaughn, 162 Wn.2d 115, 122, 170 P.3d 1151 (2007)

(providing that under the informed consent doctrine, “a health care provider has a

fiduciary duty to disclose relevant facts about the patient’s condition and the

proposed course of treatment so that the patient may exercise the right to make

an informed health care decision”). But the only reasonable conclusion from

Cahan’s December 12, 2017 email, and her later refusal to admit a patient, is

that she was protesting the fact that consent documents were not being timely

transmitted by providers before admission in accordance with hospital policy.

She points to no evidence that she was concerned about informed consents not

13 Rather, the apparent purpose of the nurse licensing statutes and

regulations on which Cahan relies is to protect patients from incompetent care.

See RCW 18.79.010 (“It is the purpose of the nursing care quality assurance

commission to regulate the competency and quality of professional health care

providers under its jurisdiction.”); cf. In re Flynn, 52 Wn.2d 589, 594, 328 P.2d

150 (1958) (observing that the purpose of licensing dentists is to protect the

public from incompetent and untrustworthy dentists). And Cahan points to no

evidence that she raised a concern that patients were receiving incompetent

care.

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No. 80731-5-I/21

being obtained for the relevant procedures. Indeed, even Cahan testified that

sending patients back to the operating room without documentation was “kind of

a hard stop that they had to have orders prior to the actual hands-on, touching

surgery.” In short, assuming without deciding that the doctrine of informed

consent rises to the level of a clear public policy, 14 Cahan fails to point to facts

from which a reasonable factfinder could conclude that her termination—even if

linked to her December 2017 conduct—contravened any such policy.

Furthermore, as Cahan herself acknowledges in the retaliation context,

the employee “must have been seeking to ‘further the public good’ ” in engaging

in her allegedly public-policy-linked conduct. Farnam v. CRISTA Ministries, 116

Wn.2d 659, 671, 807 P.2d 830 (1991) (quoting Dicomes, 113 Wn.2d at 620). Yet

Cahan points to no evidence that she was seeking to further the public good

when she reached out to Geerings and Peredney in December 2017 and later

when she refused to admit the IR patient. Rather, the only reasonable

conclusion from the record is that Cahan’s December 2017 conduct was

motivated by private or proprietary interests, namely, her frustration with doctors’

failure to comply with internal policies regarding timely transmittal of

documentation—and management’s decision not to do more to correct this

noncompliance. This frustration was understandable, as it is undisputed that it

14 We observe that although there exists a cause of action for failure to

secure informed consent, the failure to obtain informed consent is not alone

sufficient to establish that cause of action: The plaintiff must also establish that

“a reasonably prudent patient under similar circumstances would not have

consented to the treatment if informed of [the] material fact or facts”; and that “the

treatment in question proximately caused injury to the patient.” RCW

7.70.050(1)(c), (d).

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No. 80731-5-I/22

fell on Cahan and her colleagues to follow up with doctors for the required

documentation. Nonetheless, the frustration arose out of an internal workflow

matter.

Cahan disagrees and asserts that the hospital’s practice of not enforcing

its internal policy negatively affected the public good “by jeopardizing patient

safety and care.” But she fails to support this assertion with reference to relevant

parts of the record. See RAP 10.3(a)(6) (requiring argument to include

“references to relevant parts of the record”); cf. In re Estate of Lint, 135 Wn.2d

518, 532, 957 P.2d 755 (1998) (court will not assume obligation to “comb the

record” for evidence to support counsel’s arguments). Furthermore, even

assuming the hospital’s practice of not enforcing its internal policies affected

patient safety, the fact that a practice affected the public good is not the same as

establishing that Cahan was seeking to further the public good through her

conduct. See Farnam, 116 Wn.2d at 671-72 (“Conduct that may be praiseworthy

from a subjective standpoint or may remotely benefit the public will not support a

claim for wrongful discharge.” (citations omitted)).

In short, we are not persuaded by Cahan’s assertion that there exists a

clear mandate of public policy prohibiting nurses from administering care to

patients without provider orders. And even assuming there exists a public policy

prohibiting nurses from administering care without obtaining informed consent,

Cahan fails to establish that her termination may have been motivated by

reasons that contravened that policy. For these reasons, Cahan fails to establish

a prima facie case of wrongful termination in violation of public policy. We affirm

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No. 80731-5-I/23

the trial court’s summary dismissal of Cahan’s claim on this basis and need not

reach the issue of causation. 15

Fees on Appeal

As a final matter, Cahan requests fees on appeal pursuant to RCW

49.48.030, which authorizes an award of fees “[i]n any action in which any

person is successful in recovering judgment for wages or salary owed to him or

her.” Because the trial court did not err by summarily dismissing Cahan’s claims,

Cahan was not “successful” under that statute. Accordingly, we deny Cahan’s

request for fees on appeal.

WE CONCUR:

We also need not reach the issue of whether the trial court erred by

15

denying Cahan’s motion for reconsideration, which was addressed only to the

causation element of her claim.

23