Ress v. Abbott Northwestern Hospital, Inc.

CRIPPEN, Judge,

concurring specially.

None of the judges assigned to this case finds support in the record for conclusions of the Commissioner that relator displayed willful or wanton disregard of his employer’s interests in his actions preceding the request by a resident physician to obtain a chest x-ray. In my opinion, the Commissioner similarly erred regarding relator’s response to the x-ray directive.

Based on ample evidence of record, the Commissioner confirmed that refusal of an instruction had occurred. By itself, that finding will not suffice to demonstrate misconduct. Was the directive material? Was the refusal material? Was the refusal unreasonable such that it showed willfulness, *734either a deliberate affront to the employer’s standards or such a degree of carelessness as evidences equally wrongful intent? Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).

In the case of directions of a physician, the Commissioner evidently concludes it is enough to find an instruction and a refusal, no matter what the circumstances. The Commissioner explains that “the cumulative effect of all nurses overriding physician’s directives” would be “extraordinarily injurious to the employer’s interests.” To the contrary, we have never retreated from examining the merits of an employee’s claims of excuse or justification for refusing an employer’s directions. See Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn.Ct.App.1984); Woodward v. Interstate Office Systems, 379 N.W.2d 177, 180 (Minn.Ct.App.1985). There are no authorities suggesting a different rule of law for medical employers. See e.g. Cundiff v. Commissioner, Unemployment Compensation Board of Review, 88 Pa.Commw. 272, 489 A.2d 948 (Pa.Commw.Ct.1985).

1.

The record here shows, as the referee found, that the physician acquiesced in relator’s stance against disturbing the patient immediately to obtain an x-ray. He did nothing to contradict the nurse. He evidently left the hospital after his shift ended without taking any steps showing his interest in an early reading of an x-ray.

2.

There is no suggestion in the record of willfulness in the nurse’s handling of the resident’s request. The circumstances in which the nurse found himself were not considered by the Commissioner.

The patient’s son had seen the peril of his mother, and the nurse was responsible to keep him informed about the crisis. Convinced that the patient might not live long, the nurse advised the son to contact other family members. The son and the other relatives urged that the primary medical concern should be to keep the patient comfortable. The son asked that he be permitted to see the patient when she was comfortable, and the nurse told him this could be done.

The x-ray request came before the patient’s son was at her side. The nurse ordered the x-ray soon after the son and the other family members saw the patient. Other family members reiterated their concern for the patient’s comfort, and the nurse explained the need for an x-ray.

Relator explained to the resident his concern that the x-ray procedure might further imperil the patient, and that family contact was necessary while the patient was resting comfortably.

Under these circumstances, there was no evidence permitting a finding that relator handled the x-ray request with willful disregard for hospital standards. While his judgment was unsatisfactory in terms of hospital regimen, such unsatisfactory conduct does not constitute misconduct. Tilseth, 295 Minn, at 375, 204 N.W.2d at 646. The conclusion is especially important in light of the mandate that we construe unemployment compensation statutes liberally. Hendrickson v. Northfield Cleaners, 295 N.W.2d 384, 385 (Minn.1980).

3.

Three other observations of the Commissioner’s representative require brief comment.

The representative’s memorandum states that the x-ray was ordered one hour after relator was told to obtain it. This finding is not sustained by the record. Undisputed evidence shows that the x-ray was ordered and obtained by midnight, a half hour after another nurse heard the x-ray conversation between relator and the resident. Relator’s narrative of events, including meetings with the family after 11:00 p.m., and before the x-ray request, corroborates the other evidence on the time of the delay.

The representative’s memorandum states that the resident advised relator on the importance of obtaining an immediate x-ray. The doctor stated the purpose of an x-ray, but nothing in the record shows his comments on the medical urgency for the procedure. To the contrary, the physician’s own conduct belies any implication *735that time was of the essence in seeing an x-ray.

Finally, the Commissioner’s representative observes that relator had a professional duty to contact a superior physician if he disagreed with the resident. Indeed, it is undisputed that relator did state a determination to contact a more senior resident then on duty. The attending resident told him this would be inappropriate.