                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 2000-CA-00040-SCT
RONALD P. YOUNG
v.
NORTH MISSISSIPPI MEDICAL CENTER

DATE OF JUDGMENT:                                        12/28/1999
TRIAL JUDGE:                                             HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                               LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                                  JIM WAIDE
ATTORNEYS FOR APPELLEE:                                  MICHAEL FARRELL
                                                         PHILLIP LANE NORWOOD
NATURE OF THE CASE:                                      CIVIL - OTHER
DISPOSITION:                                             AFFIRMED - 01/25/2001
MOTION FOR REHEARING FILED:                              2/21/2001; denied 5/17/2001
MANDATE ISSUED:                                          5/24/2001



      BEFORE PITTMAN, C.J., MILLS AND WALLER, JJ.

      PITTMAN, CHIEF JUSTICE, FOR THE COURT:

                                     STATEMENT OF THE CASE

¶1. Ronald P. Young ("Young") filed a lawsuit against his former employer, North Mississippi Medical
Center ("NMMC"), in the Circuit Court of Lee County on July 16, 1997. The complaint alleged causes of
action for negligent infliction of emotional distress and breach of an implied covenant of good faith and fair
dealing in an employment contract. The matter came before the circuit court on NMMC's motion to
dismiss. In both his written response to the circuit court and orally at the hearing on the motion, counsel for
Young advised the court that the defendant's motion to dismiss the claim for the negligent infliction of mental
distress was well taken and should be granted. Circuit Judge Thomas J. Gardner, III dismissed the
remaining claim with prejudice, ruling that Young failed to state a claim upon which relief could be granted.
Young appeals from the circuit court's grant of the Motion to Dismiss. He asks this Court to recognize an
implied obligation of good faith in an at-will employment relationship. Finding no error in the trial court's
judgment, we affirm.

                                        STATEMENT OF FACTS

¶2. Ronald P. Young was employed as a registered nurse with NMMC from February 1994 until March
27, 1997 when he voluntarily resigned. While employed by NMMC, Young witnessed actions by his fellow
nurses which he personally believed to be "incidents of negligence and malpractice."
¶3. In one particular incident, Young noticed that a patient was losing blood. He reported the blood loss to
the charge nurse who told him not to worry and to change the patient's dressing. When Young later
checked on the patient, he noticed that her blood pressure was critically low, and he and another nurse
initiated CPR. Young stated in his complaint that the patient "was in dire need of blood, but there was no
blood standing by." The patient was later pronounced dead due to a heart attack. Young believes that the
patient's death "was related to blood loss."

¶4. Young reported the incident to hospital administration. He stated that he "firmly believe[d]" the patient's
death "was partially the result of [the charge nurse's] lack of concern." Young later submitted a
supplemental report detailing other incidents of "failure to provide proper medical care" such as:

      A. Instructing [Young] in his orientation to back time the narcotics given in the post-anasthesia care
      unit to bypass the required thirty minute observation post-narcotic period;

      B. Intentionally inflating a patient's oxygen level in order to have the patient discharged from the
      PACU.

¶5. After filing his reports, Young met with the hospital administrator, hospital counsel, and the director of
surgery concerning his allegations of malpractice. In the meeting, Young requested that disciplinary action
be initiated and that the family of the patient who had died be notified of "the neglect." Young claims that he
was told "not to tell anyone" about what he had witnessed.

¶6. Young alleges that after making his reports, "no meaningful action" was taken by the administrator,
counsel, and director of surgery against any nurses. Young also states that he subsequently received
extremely low peer evaluation ratings from the nurses about whom he complained which made it difficult for
him to advance in his nursing career. Young claims that after making his reports, he was transferred to
another position "where he would not have knowledge of the ongoings which were jeopardizing patient
care." Young ultimately left his employment since "he could no longer tolerate the substandard medical care
and cover ups of substandard medical care."

                                     STATEMENT OF THE ISSUES

      I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT MISSISSIPPI DOES
      NOT RECOGNIZE AN IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING IN
      AN EMPLOYMENT AT-WILL RELATIONSHIP.

      II. WHETHER MR. YOUNG MAY ARGUE FOR THE FIRST TIME ON APPEAL THAT
      HE WAS CONSTRUCTIVELY DISCHARGED IN RETALIATION FOR REPORTING
      THE NEGLIGENCE OF HIS CO-WORKERS.

                                        STANDARD OF REVIEW

¶7. A motion to dismiss under M.R.C.P. 12(b)(6) raises an issue of law. Mississippi Transp. Comm'n v.
Jenkins, 699 So.2d 597, 598 (Miss. 1997); T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss. 1995);
Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990); Lester Eng'g Co. v. Richland Water &
Sewer Dist., 504 So.2d 1185, 1187 (Miss. 1987). This Court conducts de novo review on questions of
law. Mississippi Transp. Comm'n v. Jenkins, 699 So.2d at 598; UHS-Qualicare, Inc. v. Gulf Coast
Community Hosp., Inc., 525 So.2d 746, 754 (Miss. 1987). When considering a motion to dismiss, the
allegations in the complaint must be taken as true, and the motion should not be granted unless it appears
beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. T.M., 650
So.2d at 1342; Trammell v. State, 622 So.2d 1257, 1259 (Miss. 1993); Overstreet v. Merlos, 570
So.2d 1196, 1197 (Miss. 1990).

                                               DISCUSSION

      I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT MISSISSIPPI DOES
      NOT RECOGNIZE AN IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING IN
      AN EMPLOYMENT AT-WILL RELATIONSHIP.

¶8. Young argues on appeal that the circuit court erred in granting NMMC's motion to dismiss since even
at-will employment contracts contain an implied obligation of good faith.

¶9. There are numerous Mississippi contract cases that state that all contracts contain an implied duty of
good faith and fair dealing, but this Court has never recognized a cause of action based on such a duty
arising from an employment at-will relationship. This Court has specifically held that at-will employment
relationships are not governed by a covenant of good faith and fair dealing which gives rise to a cause of
action for wrongful termination. Hartle v. Packard Elec., 626 So.2d 106, 110 (Miss. 1993); Perry v.
Sears, Roebuck & Co., 508 So.2d 1086, 1089 (Miss. 1987). Recently, the Court reaffirmed its stance.
Cothern v. Vickers, Inc., 759 So.2d 1241, 1248 (Miss. 2000); Slatery v. Northeast Miss. Contract
Procurement, Inc., 747 So.2d 257, 259 (Miss. 1999).

¶10. An implied covenant of good faith and fair dealing is usually asserted to constitute the basis of a tort
claim for wrongful discharge. Perry, 508 So.2d at 1089. In Perry, the plaintiff claimed that an implied
contract existed which forbade the defendant from terminating him without cause. Id. at 1087. Young's
claim is unusual in that he seeks damages for breach of a covenant of good faith and fair dealing even
though he voluntarily resigned.

¶11. There exists some confusion as to the exact nature of the duty Young claims he was owed by
NMMC. The circuit court construed Young's complaint to assert a breach of "an implied duty to insure that
co-workers did not commit negligence or generally failing to provide a negligent-free workplace." In his
Reply Brief to this Court, Young states that "Defendant and the lower court misinterpret...Young's claim,"
and that in fact, his claim "is based on fraud in covering up grossly negligent conduct which resulted in the
death of a patient."

¶12. It is immaterial, though, whether Young is referring to NMMC's duty to provide a negligence-free
workplace or to refrain from concealing malpractice since a duty of good faith and fair dealing is not
implicated in Young's situation. Young was never discharged; rather, he voluntarily resigned. Therefore, the
good faith and fair dealing issue is without merit.

      II. WHETHER YOUNG MAY ARGUE FOR THE FIRST TIME ON APPEAL THAT HE
      WAS CONSTRUCTIVELY DISCHARGED IN RETALIATION FOR REPORTING THE
      NEGLIGENCE OF HIS CO-WORKERS.

¶13. In McArn v. Allied-Bruce Terminix Co., 626 So.2d 603 (Miss. 1993), this Court recognized a
public policy exception to the employment at-will doctrine where an employer may not discharge an
employee in retaliation for the employee's 1) refusing to participate in illegal acts; or 2) reporting illegal acts
of his employer. Id. at 606. Young was not discharged; rather, he voluntarily terminated his employment
with NMMC. In his appeal to this Court however, Young argues that the McArn exception applies
because he was constructively discharged in retaliation for reporting the acts of his co-workers.

¶14. Young failed to plead either constructive or retaliatory discharge in the circuit court. Consequently, this
Court need not reach the issues of either constructive or retaliatory discharge.

                                                CONCLUSION

¶15. The circuit court did not err in granting NMMC's motion to dismiss as Young failed to state a claim
upon which relief may be granted. Therefore, the judgment of the Lee County Circuit Court is affirmed.

¶16. AFFIRMED.

      BANKS, P.J., SMITH, MILLS, WALLER AND COBB, JJ., CONCUR. McRAE, P.J.,
      DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND EASLEY,
      JJ.

      McRAE, PRESIDING JUSTICE, DISSENTING:

¶17. I dissent to the majority opinion as it states there is no recognition of an obligation of good faith and fair
dealing in employment at-will relationships in this state. In this case, Young was forced to leave what had
been his place of employment for over three years because of his knowledge of negligent behavior that had
occurred at the North Mississippi Medical Center ("NMMC"). Young was demoted from his position and
put in a position of employment where he would be shielded from witnessing any other potentially negligent
behavior. Young asserts that he was kept from advancing in his chosen field at his chosen place of
employment because of his reporting what he considered to be negligent acts. Clearly, NMMC retaliated
against Young for his reporting of these alleged negligent acts, acting in violation of Mississippi statutory law.
Essentially, Young was forced to resign from his position because of the working conditions at NMMC.
Because Young's resignation was the product of retaliation on the part of NMMC, and at least this is a jury
issue, I dissent.

¶18. Young was acting in accordance with his position as a registered nurse when he reported what he
believed to be negligent behavior on the part of other employees to the proper officials at NMMC. Young
was acting according to his duties under Mississippi statutory law. See Miss. Code Ann. §§ 41-9-1(1993)
& 43-47-37 (2000).

¶19. Miss. Code Ann. § 41-9-1 states,(1)

      The purpose of sections 41-9-1 to 41-9-35 is to protect and promote the public health by providing
      for the development, establishment and enforcement of certain standards in the construction,
      maintenance and operation of hospitals which will insure safe, sanitary and reasonably adequate care
      and treatment of individuals in hospitals. The legislature hereby finds that the protection and promotion
      of the public health requires the measures provided for in said sections.

¶20. Miss. Code Ann. § 43-47-37(1) states,
      Any person who, within the scope of his employment at a care facility as defined in Section 43-47-5,
      or in his professional capacity, has knowledge of or reasonable cause to believe that any patient or
      resident of a care facility has been the victim of abuse or exploitation shall report or cause a report to
      be made of the abuse or exploitation.

¶21. Miss. Code Ann. § 43-47-37(5)(a) & (b) further states,

      5(a) Any individual who, in good faith, makes a report as provided in this section or who testifies in
      an official proceeding regarding matters arising out of this section shall be immune from all criminal and
      civil liability, except for perjury or the giving of a false report.

      (b) No person shall terminate from employment, demote, reject for promotion or otherwise
      sanction, punish or retaliate against any individual who, in good faith, makes a report as
      provided in this section or who testifies in any official proceeding regarding matters arising out of this
      section.

¶22. Although § 43-47-37 is part of the Mississippi Vulnerable Adults Act of 1986, Miss. Code Ann. §§
43-47-1 to -37 (2000), these code sections should extend to Young in his position as a registered nurse.
Surely, acts of negligence resulting in the death of a patient are as important to report as acts of abuse and
exploitation. Young had a duty to report any abuse or lack of care, and he is protected by the above statute
from any retaliation or demotion on the part of his employer. In addition, § 43-47-37 refers to a "care
facility as defined in Section 43-47-5," and § 43-47-5(b) states that, a "'Care facility' shall mean: (iii) Any
hospital as defined in and required to be licensed under, the provisions of Section 41-9-1 et seq." Section
41-9-1 applies to this case by virtue of its general purpose, and therefore, NMMC is covered by this
statute.

¶23. McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603, 607 (Miss. 1993), created two exceptions
to the employment at-will doctrine based on public policy reasons. These exceptions state that employees
who refuse to participate in illegal activities or who are discharged for reporting the illegal acts of his
employer to his employer or to anyone else are not barred from bringing a tort action for damages against
his employer. See also Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 542 (Miss. 1996).

¶24. Although McArn concerns the exceptions for reporting illegal acts, this rationale should also be
extended to situations where an employee is complying with statutory provisions to promote the public
good. To hold otherwise would go against the intent of the Legislature.

¶25. Therefore, I would find that there exists an employment at-will contract and an implied duty of good
faith and fair dealing in this case. Young could have had his license as a registered nurse revoked pursuant
to Miss. Code Ann. § 73-15-29 (2000) if he had not reported these alleged acts of negligence to the
proper officials. We should not hold that the employer can retaliate against the employee when the
employees protect the public health by reporting improper medical care. We should carry out the intent of
the Legislature, as stated in Miss. Code Ann. §§ 41-9-1 and 43-47-37, to provide safe, sanitary,
reasonable, and adequate medical care. For the above reasons, I dissent.

      DIAZ AND EASLEY, JJ., JOIN THIS OPINION.

1. Chapter 9 of Title 41 of the Mississippi Code Annotated is entitled, "Regulation of Hospitals; Hospital
Records."
