{ "id": 11238702, "name": "DIXIE L. DEERMAN, Plaintiff v. BEVERLY CALIFORNIA CORPORATION, a California Corporation, d/b/a/ BRENTWOOD HILLS NURSING CENTER, and now known as BEVERLY HEALTH AND REHABILITATION SERVICES, INC., a California Corporation, Defendant", "name_abbreviation": "Deerman v. Beverly California Corp.", "decision_date": "1999-09-21", "docket_number": "No. COA98-135-2", "first_page": "1", "last_page": "12", "citations": [ { "type": "official", "cite": "135 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "515 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "350 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132244 ], "year": 1999, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0567-01" ] }, { "cite": "511 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "valid claim for wrongful termination when forecast of evidence established employee terminated for giving truthful information about employer-district attorney's bank account to State Bureau of Investigation" } ], "opinion_index": 0 }, { "cite": "350 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132320 ], "year": 1999, "pin_cites": [ { "parenthetical": "valid claim for wrongful termination when forecast of evidence established employee terminated for giving truthful information about employer-district attorney's bank account to State Bureau of Investigation" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0089-01" ] }, { "cite": "501 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652142 ], "year": 1998, "pin_cites": [ { "page": "656-57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0649-01" ] }, { "cite": "421 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "wrongful termination claim proper where state-employed nurse terminated for reporting patient abuse as mandated by state statute" } ], "opinion_index": 0 }, { "cite": "332 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505409, 2504968, 2504747, 2505141, 2504699 ], "year": 1992, "pin_cites": [ { "parenthetical": "wrongful termination claim proper where state-employed nurse terminated for reporting patient abuse as mandated by state statute" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0345-01", "/nc/332/0345-02", "/nc/332/0345-05", "/nc/332/0345-04", "/nc/332/0345-03" ] }, { "cite": "418 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "287", "parenthetical": "wrongful termination claim proper where state-employed nurse terminated for reporting patient abuse as mandated by state statute" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314074 ], "year": 1992, "pin_cites": [ { "page": "514-15", "parenthetical": "wrongful termination claim proper where state-employed nurse terminated for reporting patient abuse as mandated by state statute" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0496-01" ] }, { "cite": "851 S.W.2d 617", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10010523 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "622", "parenthetical": "Missouri NPA and regulations thereunder \"reveal a clear mandate of public policy ... to train and license a person to engage in the safe and competent practice of nursing\"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/851/0617-01" ] }, { "cite": "483 N.W.2d 211", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8666200 ], "year": 1992, "pin_cites": [ { "page": "215-16", "parenthetical": "statutes and administrative regulations governing practice of nursing held to represent public policy in wrongful termination action" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/168/0012-01" ] }, { "cite": "478 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "814-15" }, { "page": "815", "parenthetical": "whether plaintiff was fired \"solely\" because she refused \"to violate the statutory notice requirement\" and was thereby terminated in contravention of public policy is a question for the jury" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890532 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "721-22" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0713-01" ] }, { "cite": "370 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "426" }, { "page": "426", "parenthetical": "valid wrongful termination claim presented where nurse terminated after having testified truthfully under subpoena at unemployment hearing" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524200 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "41" }, { "page": "41-42" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0035-01" ] }, { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "447" }, { "page": "447", "parenthetical": "truck driver who refused to violate laws regarding maximum driving hours stated claim for wrongful termination" }, { "page": "447" } ], "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "175-76" }, { "page": "175-76" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] }, { "cite": "468 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "474-75" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 779", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920344 ], "year": 1996, "pin_cites": [ { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0779-01" ] }, { "cite": "416 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "169", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "331 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498595 ], "year": 1992, "pin_cites": [ { "page": "353", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0348-01" ] }, { "cite": "488 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139651, 139476, 139417, 139579, 139454 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0547-02", "/nc/346/0547-01", "/nc/346/0547-03", "/nc/346/0547-05", "/nc/346/0547-04" ] }, { "cite": "484 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "842-43" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710155 ], "year": 1997, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0292-01" ] }, { "cite": "513 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239871 ], "year": 1999, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0689-01" ] }, { "cite": "335 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "333 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0331-03", "/nc/314/0331-01", "/nc/314/0331-05", "/nc/314/0331-02", "/nc/314/0331-04" ] }, { "cite": "328 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "823" }, { "page": "826" }, { "page": "826-27" }, { "page": "826-27", "parenthetical": "wrongful termination claim valid where nurse terminated after refusing employer's instructions to lie under oath in violation of state statute prohibiting false testimony" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "336" }, { "page": "342" }, { "page": "343" }, { "page": "342-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "493 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "422" }, { "page": "423" }, { "page": "423" }, { "page": "423" } ], "opinion_index": 0 }, { "cite": "347 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551232 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "331" }, { "page": "333" }, { "page": "334" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0329-01" ] }, { "cite": "494 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551331, 551217, 551062, 551126, 551135 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0410-01", "/nc/347/0410-04", "/nc/347/0410-05", "/nc/347/0410-02", "/nc/347/0410-03" ] }, { "cite": "488 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794464 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "261" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0260-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1970, "pin_cites": [ { "page": "163" }, { "page": "163" }, { "page": "163" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "98" }, { "page": "98" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "354 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "758" }, { "page": "758" }, { "page": "758" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169904 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "340" }, { "page": "340" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0338-01" ] }, { "cite": "330 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722362 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0565-01" ] }, { "cite": "318 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "909" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521732 ], "year": 1984, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0299-01" ] } ], "analysis": { "cardinality": 1111, "char_count": 26074, "ocr_confidence": 0.734, "pagerank": { "raw": 8.224103829254622e-08, "percentile": 0.4770077328832685 }, "sha256": "813ca7c9c359663c6c9992c6149cb9a8fd06f3713f9df1e0d814a5957964481a", "simhash": "1:a38d24ea35380c9a", "word_count": 4011 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "DIXIE L. DEERMAN, Plaintiff v. BEVERLY CALIFORNIA CORPORATION, a California Corporation, d/b/a/ BRENTWOOD HILLS NURSING CENTER, and now known as BEVERLY HEALTH AND REHABILITATION SERVICES, INC., a California Corporation, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff appeals the trial court\u2019s dismissal pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) (1990) (Rule 12(b)(6)) of her complaint alleging wrongful discharge from employment by defendant. Upon careful review, we reverse.\nPertinent factual allegations contained in plaintiffs complaint, filed 11 July 1997, included the following:\n2. The Plaintiff is and was at all relevant times herein a registered nurse licensed by the State of North Carolina.\n3. The Plaintiff was hired by the Defendant as a registered nurse at its Brentwood Hills Nursing Center in Buncombe County, North Carolina on June 25, 1994; the Plaintiff was promoted to the job of Care Plan Coordinator in January, 1995.\n4. The Plaintiff was responsible for managing medical care and treatment for all patients at the Defendant\u2019s facility ....\n5. Prior to July, 1995, the Plaintiff had never been advised by administrative or supervisory personnel at the Brentwood Hills Nursing Center that her performance was in any way inadequate or incompetent and she was given a promotion shortly before July, 1995.\n6. In July, 1995, the Plaintiff\u2019s salary was based on an hourly wage of $16.50 per hour and she averaged approximately 45 hours each week.\n7. In and prior to July of 1995, the Plaintiff was providing nursing services to a patient at the Brentwood Hills Nursing Center; this patient began losing weight, having hallucinations, psychiatric symptoms and acute distress; the Plaintiff documented and reported all of the patient\u2019s medical difficulties to the patient\u2019s physician; the Plaintiff also attempted to contact the patient\u2019s physician by telephone, but the physician would not return her telephone calls; the Plaintiff observed that the patient\u2019s condition was deteriorating and that she was in need of a change of treatment.\n8. The Plaintiff was contacted by a member of the patient\u2019s family regarding the patient\u2019s difficulties and deteriorating condition; after the Plaintiff advised the patient\u2019s family as to her concerns, one of the family members asked for the Plaintiff\u2019s advice as to what should be done for the patient and the Plaintiff advised that she would reconsider the choice of physicians in that the appropriate treatment had not been provided for her by her physician.\n9. The Defendant, after being advised that the Plaintiff had advised the patient\u2019s family that she would reconsider the choice of physicians for the patient, terminated the Plaintiff from her position of employment with the Defendant; the Defendant\u2019s agents advised the Plaintiff that her termination was due to her advising the family of the patient that they should consider changing physicians for the patient.\n10. The Plaintiff at all times performed her duties responsibly and competently while she was employed as a registered nurse for the Defendant.\n11. After her discharge, the Plaintiff attempted to find work as a registered nurse at other facilities in the area with no success. .\n12. As a result of her discharge, the Plaintiff has lost substantial amounts of income and fringe benefits, including, but not limited to, medical insurance, vacation pay, and retirement benefits ....\nPlaintiff further alleged that in advising the patient\u2019s family concerning choice of physicians, she had complied with the North Carolina General Statutes and the North Carolina Administrative Code regulating the practice of nursing. Therefore, plaintiff continued, termination of her employment by defendant was\nin violation of the strong public policy favoring administering of nursing services to those acutely or chronically ill and the supervising by nurses of patients during convalescence and rehabilitation.\nOn 15 August 1997, defendant moved to dismiss plaintiff\u2019s complaint under Rule 12(b)(6) for failure to state a claim upon which relief might be granted. In particular, defendant asserted that\n[pjlaintiff was terminated for vocalizing to a patient\u2019s family member her criticisms of the treatment provided to the patient by the attending physician, and recommending to the patient\u2019s family member that the family select a different physician. The Defendants\u2019 justification and motive as alleged in [plaintiff\u2019s complaint] does not violate any public policy of North Carolina ....\nThe trial court granted defendant\u2019s motion 30 October 1997, and plaintiff timely appealed.\nIn reviewing the grant of a Rule 12(b)(6) motion, we must consider whether plaintiff was entitled to relief \u201cunder any state of facts which could be presented in support of the claim.\u201d Barnaby v. Boardman, 70 N.C. App. 299, 302, 318 S.E.2d 907, 909 (1984), rev\u2019d on other grounds, 313 N.C. 565, 330 S.E.2d 600 (1985). Further, the complaint must be liberally construed, Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987), and all well-pleaded allegations therein taken as true, Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970). A Rule 12(b)(6) motion should be granted only if the pleading at issue \u201cfails to allege a sufficient legal or factual basis for the claim, or reveals a fact which necessarily defeats the claim.\u201d Wilmoth v. State Farm Mut. Auto Ins. Co., 127 N.C. App. 260, 261, 488 S.E.2d 628, 630, disc. review denied, 347 N.C. 410, 494 S.E.2d 601 (1997).\nThe parties herein do not contest plaintiffs employment status as an \u201cat-will\u201d employee.\n[I]n the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.\nKurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997).\nIn general, an at-will employee in this state may not maintain a claim for wrongful discharge. Sides v. Duke University, 74 N.C. App. 331, 336, 328 S.E.2d 818, 823, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985), overruled on other grounds, Kurtzman, 347 N.C. at 333, 493 S.E.2d at 423. However, certain exceptions to this general rule have been recognized; therefore,\nwhile there may be a right to terminate [at-will employment] for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such [employment] for an unlawful reason or purpose that contravenes public policy.\nSides, 74 N.C. App. at 342, 328 S.E.2d at 826.\nAlthough our courts have enunciated no \u201cbright-line\u201d test for determining if termination of an at-will employee violates public policy, see Teleflex Information Systems, Inc. v. Arnold, 132 N.C. App. 689, 691, 513 S.E.2d 85, 87 (1999), public policy has been defined as\nthe principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good,\nJohnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 296, 484 S.E.2d 840, 842-43, disc. review denied, 346 N.C. 547, 488 S.E.2d 802 (1997). Elaborating further, our Supreme Court has observed:\n[ajlthough the definition of \u201cpublic policy\u201d approved by this Court does not include a laundry list of what is or is not \u201cinjurious to the public or against the public good,\u201d at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.\nAmos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (footnote omitted).\nPrevious decisions of this State\u2019s appellate courts have recognized claims for wrongful termination based upon the public policy exception when an employee alleges termination based upon political affiliation, see Vereen v. Holden, 121 N.C. App. 779, 784, 468 S.E.2d 471, 474-75 (1996), refusal to violate the United States Department of Transportation\u2019s regulations restricting the driving time of truck drivers, see Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175-76, 381 S.E.2d 445, 447 (1989), refusal to testify untruthfully or incompletely in a court action, see Sides, 74 N.C. App. at 343, 328 S.E.2d at 826-27, testifying at an Employment Security Act proceeding, see Williams v. Hillhaven Corp., 91 N.C. App. 35, 41, 370 S.E.2d 423, 426 (1988), or refusal to cash a delinquent borrower\u2019s certificate of deposit without the notice to the debtor required by the Uniform Commercial Code, see Roberts v. First-Citizens Bank and Trust Co., 124 N.C. App. 713, 721-22, 478 S.E.2d 809, 814-15 (1996). Nonetheless, any exception to the at-will employment doctrine \u201cshould be adopted Only with substantial justification grounded in compelling considerations of public policy.\u201d Kurtzman, 347 N.C. at 334, 493 S.E.2d at 423.\nWhether the complaint sub judice states a claim for wrongful discharge is dependent upon whether plaintiff\u2019s termination because she \u201cadvis[ed] the family of [a] patient that they should consider changing physicians for the patient\u201d violated the public policy of North Carolina as set forth in the Nursing Practice Act (NPA), N.C.G.S. \u00a7\u00a7 90-171.19 \u2014 90-171.47 (1993), and the administrative regulations promulgated thereunder.\nG.S. \u00a7 90-171.19 expressly provides:\nThe General Assembly of North Carolina finds that mandatory licensure of all who engage in the practice of nursing is necessary to ensure minimum standards of competency and to provide the public safe nursing care.\n(emphasis added). Further, G.S. \u00a7 90-171.21 creates a \u201cBoard of Nursing\u201d (the Board) charged, inter alia, with setting minimum standards for educational programs preparing persons for licen-sure under the Act, and with licensing qualified applicants, G.S. \u00a7 90-171.23(b)(6), (8). In addition, the Board oversees disciplinary action under the NPA, \u201ccaus[ing] the prosecution of all persons violating [provisions of the Act],\u201d G.S. \u00a7 90-171.23(b)(7), and is authorized to revoke or suspend the license of a registered nurse or applicant who:\n(4) Engages in conduct that endangers the public health;\n(5) Is unfit or incompetent to practice nursing by reason of deliberate or negligent acts or omissions regardless of whether actual injury to the patient is established; [or]\n(7) Has violated any provision of [the NPA],\nN.C.G.S. \u00a7 90-171.37 (Supp. 1995).\nFinally, included among administrative rules governing the nursing profession are regulations establishing minimum standards for accredited programs of professional nursing, N.C. Admin. Code Tit. 21, r. 36.0300 \u2014 36.0325 (Dec. 1994), and enumerating the \u201ccomponents of nursing practice,\u201d N.C. Admin. Code Tit. 21, r. 36.0224 (Dec. 1994).\nThe NPA and attendant administrative regulations thus evidence a clear public policy in North Carolina to protect public safety and health by maintaining minimum standards of nursing care. See Winkelman v. Beloit Memorial Hosp., 483 N.W.2d 211, 215-16 (Wis. 1992) (statutes and administrative regulations governing practice of nursing held to represent public policy in wrongful termination action), and Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617, 622 (Mo. Ct. App. 1993) (Missouri NPA and regulations thereunder \u201creveal a clear mandate of public policy ... to train and license a person to engage in the safe and competent practice of nursing\u201d).\nPlaintiff maintains her termination by defendant contravened this public policy, asserting in her appellate brief that\n[b]y terminating [plaintiff], the defendant was preventing her from doing that which she was required to do by North Carolina statutes and regulations as a registered nurse.\nPlaintiff specifically references G.S. \u00a7 90-171.20(4) which defines \u201cNursing\u201d as:\na dynamic discipline which includes the caring, counseling, teaching, referring and implementing of prescribed treatment in the prevention and management of illness ....\nPlaintiff also points to G.S. \u00a7 90-171.20(7) which provides:\nThe \u201cpractice of nursing by a registered nurse\u201d consists of.. .\na. Assessing the patient\u2019s physical and mental health, including the patient\u2019s reaction to illnesses and treatment regimens; [and]\ng. Providing teaching and counseling about the patient\u2019s health care ....\nLastly, plaintiff cites administrative regulations concerning teaching and counseling about the patient\u2019s health care. In pertinent pon tion, these regulations provide:\n(h) Teaching and Counseling clients is the responsibility of the registered nurse, consistent with G.S. 90-171.20(7)g.\n(1) teaching and counseling consist of providing accurate and consistent information, demonstrations and guidance to clients, their families or significant others regarding the client\u2019s health status and health care for the purpose of:\n(A) increasing knowledge;\n(B) assisting the client to reach an optimum level of health functioning and participation in self care; and\n(C) promoting the client\u2019s ability to make informed decisions.\n(2) teaching and counseling include, but are not limited to:\n(A) assessing the client\u2019s needs and abilities;\n(B) adapting teaching content and methods to the identified needs and abilities of the client(s);\n(C) evaluating effectiveness of teaching and counseling; and\n(D) making referrals to appropriate resources.\nN.C. Admin. Code Tit. 21, r. 36.0224(h) (Dec. 1994) (emphasis added) [hereinafter Rule 36.0224(h)].\nPlaintiff\u2019s public policy argument may thus fairly be summarized as follows: (1) the NPA and regulations of the Board of Nursing describe the practice of nursing as \u201cassessing,\u201d G.S. \u00a7 90-171.20(7), a patient\u2019s health, which entails a \u201cresponsibility\u201d to communicate, \u201ccounsel,\u201d and \u201cprovidfe] accurate . . . guidance to clients [and] their families,\u201d Rule 36.0224(h); (2) plaintiff\u2019s comments which resulted in her termination were proffered in fulfillment of the foregoing responsibilities; and (3) termination of plaintiff for fulfilling her responsibilities as a practicing nurse in North Carolina therefore violated the public policy of this State.\nDefendant vigorously retorts that plaintiff\u2019s argument is fallacious. Defendant insists the NPA and the regulatory language upon which plaintiff relies \u201cdo[] not impose any requirements or express any prohibitions\u201d and that, even should this Court rule to the contrary, the statements of plaintiff which led to her termination were not \u201crequired\u201d by the NPA and regulations thereunder. We disagree.\nWhile the language of the NPA and attendant regulations is broad and frequently expressed with a definitional bias, we are not persuaded by defendant\u2019s contention that neither the statutes nor regulations issued thereunder \u201cimpose any requirements or express any prohibitions\u201d relevant to plaintiff\u2019s cause herein. For example, G.S. \u00a7 90-171.19 recites the purpose of the NPA and the licensure of persons in the practice of nursing as being to \u201censure minimum standards of competency and to provide the public safe nursing care.\u201d\nTo the foregoing end, the NPA defines the \u201cpractice of nursing by a registered nurse\u201d as \u201c [providing teaching and counseling about the patient\u2019s health care.\u201d G.S. \u00a7 90-171.20(7). Explanatory regulations further provide that \u201cTeaching and Counseling clients is the responsibility of the registered nurse\u201d and consists of \u201cproviding accurate and consistent information . . . and guidance to clients [and] their families.\u201d Rule 36.0224(h). Moreover, the regulations also note that \u201cteaching and counseling include . . . making referrals to appropriate resources.\u201d Id.\nIn addition, the Board is required to initiate\nan investigation upon receipt of information about any practice that might violate any provision of [the NPA] or any rule or regulation promulgated by the Board.\nG.S. \u00a7 90-171.37. The Board is also empowered to take disciplinary action if it determines, inter alia, that a nurse \u201c[i]s unfit or incompetent to practice nursing,\u201d id., which by statute \u201cincludes the caring, counseling, teaching, referring and implementing of prescribed treatment,\u201d G.S. \u00a7 90-171.20(4), and by regulation incorporates the \u201cresponsibility\u201d to \u201cprovid[e] accurate and consistent information . . . and guidance to clients [and] their families.\u201d Rule 36.0224(h).\nThe extensive legislative scheme described herein, including regulations adopted thereunder, thus reflects that our General Assembly intended by law to require of licensed nurses a measure of \u201cteaching and counseling,\u201d G.S. \u00a7 90-171.20(7), so as to \u201censure minimum standards of competency and to provide the public safe nursing care.\u201d G.S. \u00a7 90-171.19. Accordingly, defendant\u2019s contention that registered nurses in effect may choose to teach and counsel, but are not obligated to do so by law, misses the mark. In addition, defendant fails to account for the General Assembly\u2019s expression of the necessity of ensuring a \u201cminimum\u201d level of \u201ccompetent\u201d nursing care to provide for the public health. See id.\nDefendant interjects that plaintiff in any event was not required to advise her patient\u2019s family that \u201cshe would reconsider the choice of physicians.\u201d On the contrary, as observed above, the NPA includes \u201cteaching and counseling\u201d as a function of the practice of nursing. See G.S. \u00a7 90-171.20(7). As such, plaintiff was obligated under the facts herein to provide \u201cteaching and counseling\u201d to her patient or the patient\u2019s family \u201cregarding the client\u2019s health status and health care for the purpose of (A) increasing knowledge; (B) assisting the client to reach an optimum level of health functioning . . . ; [and] (D) making referrals to appropriate resources.\u201d Rule 36.0224(h).\nInterestingly, had plaintiff allegedly been terminated in consequence of her refusal to violate the minimal requirements of her position as described by the General Assembly and the Board, a claim for wrongful termination would clearly lie, see Coman, 325 N.C. at 175-76, 381 S.E.2d at 447 (truck driver who refused to violate laws regarding maximum driving hours stated claim for wrongful termination), because our state\u2019s public policy mandates \u201cminimum standards of competency\u201d for \u201csafe nursing care.\u201d G.S. \u00a7 90-171.19. We perceive no legally cognizable distinction between the foregoing circumstance and the allegation that plaintiff was terminated solely for the reason that she complied with statutorily and administratively proscribed minimal competency standards. Compare Sides, 74 N.C. App. at 342-43, 328 S.E.2d at 826-27 (wrongful termination claim valid where nurse terminated after refusing employer\u2019s instructions to lie under oath in violation of state statute prohibiting false testimony); Williams, 91 N.C. App. at 41-42, 370 S.E.2d at 426 (valid wrongful termination claim presented where nurse terminated after having testified truthfully under subpoena at unemployment hearing); Lenzer v. Flaherty, 106 N.C. App. 496, 514-15, 418 S.E.2d 276, 287, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992) (wrongful termination claim proper where state-employed nurse terminated for reporting patient abuse as mandated by state statute); and Caudill v. Dellinger, 129 N.C. App. 649, 656-57, 501 S.E.2d 99, 104 (1998), aff'd, 350 N.C. 89, 511 S.E.2d 304 (1999) (valid claim for wrongful termination when forecast of evidence established employee terminated for giving truthful information about employer-district attorney\u2019s bank account to State Bureau of Investigation).\nWe therefore conclude that the allegations of plaintiff\u2019s complaint, taken as true, see Sutton, 277 N.C. at 98, 176 S.E.2d at 163, and liberally construed, see Dixon, 85 N.C. App. at 340, 354 S.E.2d at 758, support her contention that the statements which led to her termination were proffered in fulfillment of her \u201cteaching and counseling\u201d obligations as a licensed nurse. Plaintiff was the \u201cCare Plan Coordinator\u201d and \u201cresponsible for managing medical care and treatment for all patients at the Defendant\u2019s facility,\u201d and when one such patient \u201cbegan losing weight, having hallucinations, psychiatric symptoms and acute distress,\u201d plaintiff \u201cdocumented and reported all of the patient\u2019s medical difficulties to the patient\u2019s physician.\u201d Nevertheless, her \u201cattempt[s] to contact the patient\u2019s physician by telephone\u201d proved uneventful since \u201cthe physician would not return her telephone calls.\u201d According to the complaint, plaintiff thereafter\nwas contacted by a member of the patient\u2019s family regarding the patient\u2019s difficulties and deteriorating condition; after the Plaintiff advised the patient\u2019s family as to her concerns, one of he family members asked for the Plaintiff\u2019s advice as to what should be done for the patient and the Plaintiff advised that she would reconsider the choice of physicians in that the appropriate treatment had not been provided for her by her physician.\nWe deem it significant that plaintiff\u2019s comments were not alleged to have been gratuitous, but rather that she was specifically sought out by the patient\u2019s family members who solicited plaintiff\u2019s opinion concerning \u201cwhat should be done for the patient,\u201d thereby invoking her \u201cresponsibility\u201d to \u201cprovid[e] accurate and consistent information\u201d to the patient\u2019s family, and to \u201cmak[e] referrals to appropriate resources.\u201d Rule 36.0224(h).\nParticularly in light of the further allegation that plaintiff was unable to reach the patient\u2019s physician about the patient\u2019s \u201cdeteriorating\u201d condition, plaintiff\u2019s expression of opinion in response to inquiry by the patient\u2019s family as to what plaintiff would consider may be regarded as \u201cteaching and counseling\u201d under the NPA and pertinent regulations which was required to fulfill her \u201cresponsibility\u201d to \u201cprovid[e] accurate and consistent information . . . and guidance to clients [and] their families.\u201d Id. At a minimum, we cannot say at this juncture as a matter of law that plaintiff\u2019s response was not required by the laws regulating licensed nurses. See Wilmoth, 127 N.C. App. at 261, 488 S.E.2d at 630 (\u201ccomplaint should not be dismissed for failure to state a claim upon which relief can be granted unless it discloses on its face an insurmountable bar to recovery\u201d).\nFinally, we believe plaintiff\u2019s complaint adequately set forth that her termination by defendant was \u201cmotivated by [a] . . . reason or purpose that is against public policy.\u201d See Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). Plaintiff alleged, and indeed defendant does not deny, that plaintiff was fired because of the advice she provided to the patient\u2019s family.\nIn sum, we conclude as follows: If plaintiff, as alleged, was terminated for meeting the minimum requirements of the practice of nursing as established and mandated by the NPA and regulations thereunder, then such termination violated the public policy of this state to ensure the public a minimum level of safe nursing care. Plaintiffs complaint, taken as true, see Sutton, 277 N.C. at 98, 176 S.E.2d at 163, and liberally construed, see Dixon, 85 N.C. App. at 340, 354 S.E.2d at 758, sufficiently alleged such termination, see Roberts, 124 N.C. App. at 722, 478 S.E.2d at 815 (whether plaintiff was fired \u201csolely\u201d because she refused \u201cto violate the statutory notice requirement\u201d and was thereby terminated in contravention of public policy is a question for the jury). The trial court therefore erred in granting defendant\u2019s Rule 12(b)(6) motion.\nIn that we have determined plaintiffs complaint adequately alleged she was discharged for complying with minimum requirements of the practice of nursing, we reject defendant\u2019s argument that the complaint established as a matter of law the unauthorized practice of medicine by plaintiff under N.C.G.S. \u00a7 90-18 (Supp. 1995). That section specifically exempts from activities constituting the practice of medicine \u201c[t]he practice of nursing by a registered nurse engaged in the practice of nursing.\u201d G.S. \u00a7 90-18(14).\nPrior to concluding, we also briefly address defendant\u2019s assertion that a decision such as that reached herein might be extended to any employment \u201cregulated or licensed by the state.\u201d To the contrary, our ruling is in keeping with the underlying purpose of recognizing public policy exceptions only in instances of \u201csubstantial justification grounded in compelling considerations of public policy.\u201d Kurtzman, 347 N.C. at 334, 493 S.E.2d at 423. The public policy recognized herein, i.e., the protection of public safety and health by ensuring a competent level of nursing care, is equally as compelling as that acknowledged in Coman, namely, the protection of \u201cpersons and property on or near the public highways.\u201d Coman, 325 N.C. at 176, 381 S.E.2d at 447.\nReversed.\nJudges WALKER and McGEE concur.\n. The pertinent provisions of the NPA cited herein and applicable to the case sub judice have not been substantively amended by the version of the NPA now in effect.\n. This portion of the regulation has not been subsequently amended.\n. This section was re-designated in 1997 as G.S. \u00a7 90-18(c)(14).", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "George W. Moore for plaintiff-appellant.", "Moore & Van Allen, P.L.L.C., by Randel E. Phillips and Meredith W. Holler, for defendant-appellee." ], "corrections": "", "head_matter": "DIXIE L. DEERMAN, Plaintiff v. BEVERLY CALIFORNIA CORPORATION, a California Corporation, d/b/a/ BRENTWOOD HILLS NURSING CENTER, and now known as BEVERLY HEALTH AND REHABILITATION SERVICES, INC., a California Corporation, Defendant\nNo. COA98-135-2\n(Filed 21 September 1999)\nEmployer and Employee\u2014 wrongful discharge from employment \u2014 against public policy \u2014 motion to dismiss improperly granted\nTaking the allegations of plaintiff-nurse\u2019s complaint alleging wrongful discharge from employment by defendant based on her advising a patient\u2019s family who solicited her opinion that they should consider changing physicians as true, the trial court erred in granting defendant\u2019s Rule 12(b)(6) motion to dismiss because plaintiff\u2019s termination was motivated by a reason or purpose that is against public policy since the statements which led to her termination were proffered in fulfillment of her \u201cteaching and counseling\u201d obligations as a licensed nurse. N.C.G.S. \u00a7 90-171.20(7).\nAppeal by plaintiff from order filed 30 October 1997 by Judge Robert D. Lewis in Buncombe County Superior Court. Heard in the Court of Appeals 18 March 1999.\nGeorge W. Moore for plaintiff-appellant.\nMoore & Van Allen, P.L.L.C., by Randel E. Phillips and Meredith W. Holler, for defendant-appellee." }, "file_name": "0001-01", "first_page_order": 35, "last_page_order": 46 }