THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Tuesday, January 7, 1997 TAG: 9701070220
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: 85 lines
A federal judge on Monday threw out a nurse's lawsuit against Sentara Norfolk General Hospital, ruling that she was a victim of her own unprofessional conduct, not religious discrimination.
Judge John A. MacKenzie ruled that nurse Nancy C. Benson was properly suspended in December 1994 for her ``complete lack of judgment'' in handling an abortion patient, not because of her religious views against abortion.
In a 15-page decision, MacKenzie wrote that Benson's actions with the patient ``were not becoming professional conduct for a nurse'' and had created ``a customer service disaster'' for the hospital. He noted that Sentara later paid for the $4,500 abortion to placate the patient's irate family.
MacKenzie also ruled that Sentara has a policy of accommodating nurses who oppose abortions, letting them swap assignments with other nurses. He ruled that such a swap was available to Benson on the day of the abortion in question but that Benson did not take advantage of it.
MacKenzie granted a summary judgment to Sentara and dismissed the lawsuit. A trial was scheduled to start next week.
``Benson was not fired for refusing to care for an abortion patient,'' MacKenzie ruled. ``Quite the opposite, she was disciplined for the type of care that she did render tothe patient. In fact, the discipline of suspension came about for her complete lack of judgment in the 15 minutes'' in which she cared for the patient.
Benson, 48, was a labor nurse at Norfolk General for 2 1/2 years. She consistently opposed abortion and abortion assignments. Both sides agree that the hospital accommodated her six to 10 times pre-viously.
On Dec. 22, 1994, the charge nurse assigned Benson to an abortion. The patient was 20 weeks pregnant with a deformed fetus. Benson says she objected to the assignment but was forced to assist.
In the patient's room, Benson did routine intake work and started an intravenous line. At some point, the patient asked Benson if she were pro-life, and Benson answered yes.
The patient said Benson criticized her decision to have an abortion, told her she would never get over the operation and said she would have to celebrate her fetus' birthday the same as her living child's.
The patient also said Benson cried and acknowledged she had never helped with an abortion, and that the patient would have to help her - the nurse - get through the procedure.
The patient's husband complained to hospital officials, who suspended Benson. A few days later, Benson quit, claiming she was forced out by intolerable work conditions.
Benson sued the hospital, Sentara Health System and her supervisor in March, seeking $1.1 million. The case against the supervisor was dismissed in October. On Monday, MacKenzie dismissed the rest of the case.
``Obviously, Sentara is delighted with the opinion,'' said Sentara's attorney, William M. Furr. ``Sentara has maintained all along that it did not discriminate against Ms. Benson because of her religious beliefs. Rather, Sentara reacted to a patient's complaint by disciplining an employee for making inappropriate comments.''
Benson's attorney, Ann K. Sullivan, said she will appeal.
``The court has taken away from the jury the right to decide this important case, despite the fact that there are substantial and material issues in dispute,'' Sullivan said. ``The court based its decision on Sentara's alleged voluntary swap system. This was never asserted by Sentara at the EEOC or during discovery. The charge nurse who gave her the assignment and the nurse manager did not offer her the chance to swap. Five nurses came forward and testified that no such system existed.
``Mrs. Benson was disciplined for honestly answering a question that the patient asked her about her religious beliefs. To return to work, she was required to have counseling on the necessity of abortions.''
The judge ruled that Benson raised an important issue of fact: whether Sentara had a policy of requiring all labor nurses to assist with abortions.
But, MacKenzie wrote, Benson's own conduct made that point moot.
``By her conduct,'' the judge wrote, ``Benson created anxiety in the mind of a patient awaiting sensitive surgery and she created a customer service disaster for her employer. The court holds that a rational jury could not find that Benson was performing her job satisfactorily at the time of her discipline.''
This ruling does not affect another case involving the same abortion and the same nurse.
That lawsuit was filed last month in Norfolk Circuit Court by the abortion patient against Benson, the hospital and Sentara Health System. It claims medical malpractice and other misdeeds. The patient, who sued under the pseudonym Jane Doe, seeks $1.35 million.
So far, there is no reply or trial date in that case.
KEYWORDS: LAWSUIT ABORTION NURSE SENTARA RELIGION
SUSPENSION DECISION FEDERAL COURT