A Pulaski County jury found Thursday that the state Department of Human Services violated the state Whistle-Blower Act by firing a State Hospital nurse who criticized how the hospital handled the food-allergy death of a mentally ill teenager.
The eight women and four men of the jury deliberated 37 minutes to end the two-day trial before Circuit Judge Tim Fox by unanimously siding with Gloria Daniel of Pine Bluff.
Only nine jurors needed to agree on a verdict. Attorneys for the state had asked the jury to find that the department's decision to fire Daniel was justified.
They said Daniel was fired for improperly locking a female patient in a room at the state mental-health hospital in September 2010, more than a year after the teen's August 2009 death.
Jurors awarded Daniel the $40,000 in lost wages for which she asked. Her attorney, Luther Sutter, told jurors the money was secondary to a verdict that would restore Daniel's good name.
Daniel "deserves vindication" for her lifetime of commitment to caring for the sick and unfortunate after spending more than four years in litigation to restore her professional reputation, Sutter said in his closing argument. He said jurors could award Daniel as little as $1 if they found in her favor.
"I am asking you to clear her name. My client was a victim of retaliation," he said. "There's some things in life you just can't pay for, and that's your reputation."
Sutter said Charles Smith, the hospital's chief administrator at the time, fired Daniel either for her participation in the investigation of Gary Cortez Reatherford's death or because she complained to him that the hospital did not have the necessary equipment to treat the 19-year-old Benton man's fatal allergic reaction.
Smith, now an administrator at a DHS facility in Arkadelphia, was a "barrier to investigations" and "hostile" to those inquiries, Sutter told jurors. Smith did not appreciate Daniel telling him that she could have saved Reatherford with some basic hospital equipment, that the hospital had killed Reatherford because it didn't have the equipment; and that they were all "going to hell in a handbasket" for the death, Sutter said.
"We're asking for a verdict that my client blew the whistle and Mr. Smith retaliated," Sutter said.
Reatherford, who had bipolar disorder, died of acute anaphylaxis about 21/2 hours after being served shrimp by the food service company that provided hospital meals. The company had substituted shrimp after running out of the popcorn chicken they had been serving. Georgia-based Morrison Healthcare Food Services reached an undisclosed settlement with Reatherford's family in late 2010. The Department of Human Services was never sued in the death.
Still ahead for Daniel after the jury decision is for the judge to decide whether she is entitled under the Whistle-Blower Act to a court order removing the no-hire designation imposed on her by the department. State attorneys are challenging that request, and both sides will be submitting written arguments over the next month. An appeal cannot begin until the judge resolves that issue.
Daniel, who now works at the Jefferson Regional Medical Center in Pine Bluff, told jurors she is now making more money than she did while working for the department, which runs the State Hospital. She said she wants the satisfaction of knowing that she can return to work for the state if she chooses.
On behalf of the department, assistant attorneys general Gary Sullivan and Nga Mahfouz argued that Daniel was no whistleblower.
Very few psychiatric hospitals have the equipment in question, they said. There's no state or federal law, rule or regulation that mandates it, and the panel of doctors that decides what equipment the State Hospital needs has never seen fit to require it, even five years after Reatherford's death, Sullivan told jurors.
He said Sutter's efforts to draw parallels between Daniel and other hospital nurses who had been accused of wrongdoing but not fired were merely scare tactics to set jurors against the hospital.
"This was all about making you mad at the State Hospital," Sullivan said.
No one involved in making the decision to fire Daniel knew what she had said about Reatherford's death, Sullivan told jurors. The termination decision was made solely on how she handled a patient, J.A., by improperly locking the woman in a room in violation of the hospital's seclusion and restraint policies, he said.
Holding up the paperwork Daniel had filed about the incident, Sullivan asked jurors to consider why Daniel had filled out the seclusion forms when she now says she did not seclude the patient.
"J.A. deserved better," Sullivan said. "[Daniel] did seclude this patient. She did mistreat this patient."
Daniel sued in January 2011. A prior trial ended with a mistrial in February 2012 over evidentiary issues. Questions about video evidence and other issues in the case had to be settled by the Arkansas Supreme Court in December 2014.
Metro on 03/20/2015