I have represented nurse/whistleblowers, nurse victims of sexual harassment and a nurse who was a victim of disability discrimination. The latter nurse is the one about which I write tonight. In 1991, Congress passed a law which was sponsored by Republican Missouri Senator Jack Danforth and signed by the first President George Bush to protect employees with disabilities, known as the Americans With Disabilities Act. I tried one of the first of these cases in Springfield, Missouri for this skilled and diligent operating room nurse who happened to have multiple sclerosis.
I will call her Corie. Corie was diagnosed with remitting/recurring MS while in her 40s. She had been a nurse for many years before that. Most of the time Corie was asymptomatic. She avoided places where the temperature was high and occasionally had to take time off when she suffered from tremors.
Corie's life long dream had been to be a Registered Nurse and she loved the operating room. For Corie, the OR is where the action was. She knew her job and she was good. Nursing in an office was boring to her. Corie had been through husbands, and personal problems, but the constant in her life was nursing. After she was diagnosed with MS, she continued nursing in the OR. She was not disabled, according to the legal standard. She could perform the essential functions of her job without accommodation and her major life activities were unaffected.
However, somehow Corie's condition was brought to the attention of her supervisor. Without ever observing Corie doing her work and with little knowledge of the disease, the supervisor determined that Corie was hampered by MS, was confused and could not move quickly enough. She and the hospital wrote up Corie, indicating that Corie was incapable of performing her job in the OR. Corie was devastated, and scared. She began to doubt herself, was her work affected?
Corie was relegated to a supply closet to take charge of the inventory, a job that did not require nursing qualifications. The job was temporary and Corie's supervisor told Corie that once the tasks in the supply closet were completed, Corie would need to find another job on her own in the hospital. Corie was humiliated and chose to quit rather than work in the "dummy" room (the hospital claimed it called the room that because a dumbwaiter was in the room, but I have my doubts).
Corie went to the EEOC and they referred her to me. By the time I met with Corie, she had been out of work for five years. She had applied at a couple of grocery stores for work, but not for any nursing work. I was puzzled. By the time my partner Kristi Kingston and I started trial, Corie had been out of work for seven years and we could not claim lost wages, because she did not even look for a job. In the meantime, Corie and her husband split up.
As we approached trial, I became apprehensive. I was worried about Corie's failure to seek work, but I think something more insidious was really going on. All my life I have harbored prejudices against sick people. I think it stems from a fear that I am supposed to take care of sick people and I don't want that responsibility. I was worried that perhaps Corie's MS might cause her to screw up in the OR and potentially injure a patient, even though her neurologist cleared her to go back to her old job. Plus, I don't like malingerers and I could not understand why Corie was not working anywhere.
We had a mediation and the defendant offered a paltry sum. I was afraid of losing the trial and I tried to convince Corie to take the settlement. Fortunately, for Corie and for me, she refused. I was so insistent that I made Corie cry. I later apologized. Sometimes I think I know everything and I don't.
We went to trial and Corie was wonderful. Her caring nature and love of her job emanated from her soul. She was born to be a nurse and the hospital took that away from her. No one on the jury was concerned about her working in the ER. They saw Corie for who she was, even though I hadn't.
This was a particularly difficult time for Corie, separated from her husband and caring for her aging parents. She got through the trial and she got a decent verdict. Of course, the defendant appealed to the 8th Circuit Court of Appeals, but the Court ruled in our favor, after granting remittitur (arghhh, that means they reduced the size of the verdict - it seems they always do that).
After the case was finally over, a wonderful thing happened. Corie looked for work as a nurse. I had not realized how much the hospital's actions had shaken Corie's confidence and she was, probably unconsciously, waiting for someone to tell her she was okay and that she was a good nurse. In essence, Corie regained her confidence after hearing what the jury had to say. She got a job as a nurse and she worked hard. Her MS had not got worse. She was more than capable of practicing nursing.
I learned a lot of lessons in Corie's case. I learned to listen to my client. I had not listened to her when she rejected the mediation offer and believed I knew better than her. I was wrong. I also learned, as the psychodramatist John Nolte says, to listen "with the third ear." I had not understood why Corie did not look for a job. I had not been paying close enough attention to who she was and what made her tick. She felt insecure and scared because of what the hospital had done to her. Immediately after the verdict, Corie had the confidence to find work as a nurse. And I relearned a lesson I already knew - when defense lawyers tell you that no one really wins after a trial, that is mullarkie. Corie won not only money, she won back her life.
No comments:
Post a Comment