Posted on: Saturday, September 4, 2004

Nurse's lawsuit ordered to trial

By Curtis Lum
Advertiser Staff Writer

The Hawai'i Supreme Court has ordered a new civil trial for a nurse who said she suffered retaliation more than seven years ago because she reported other nurses were sleeping on the job at the state's Le'ahi Hospital.

Grace Mock filed a lawsuit in 1997 against her supervisor and co-workers at Le'ahi Hospital and the state Department of Health. Mock, who has worked at the hospital since 1992, alleged that she was accused of patient neglect and sleeping on the job after she made similar complaints to her supervisor.

A Circuit Court judge ruled that Mock's claims of civil conspiracy by her supervisor, Carlina Rivera, and violations of the state's Whistleblower's Protection Act should not be heard by the jury. Instead, the jury deliberated only on her claims of defamation by Rivera and nurses Encarnacion Castro and Carmelita Rodriguez.

The jury determined that Castro and Rodriguez had defamed Mock when they filed a statement with the hospital that Mock slept on the job. Mock was awarded $25,000 in punitive damages, $21,000 in general damages and $7,600 in special damages.

Clayton Ikei, Mock's attorney, appealed the lower court's ruling on the alleged whistleblower violation.

In a ruling released yesterday, the Hawai'i Supreme Court ordered that those matters be remanded back for trial. The justices also said the lower court should not have awarded the defendants more than $109,000 in attorneys fees.

"There was evidence to support a jury finding that Rivera's actions may have been in retaliation for plaintiff's statements," the justices wrote. "The jury reasonably may have concluded that plaintiff's reporting of those sleeping may have been a 'substantial or motivating factor' in Rivera's adverse actions against plaintiff."

Ikei said Mock, who still works at the hospital, wants to go back to trial. He also said the ruling was significant because it upheld the jury's defamation verdict.

"The jury came back with defamation verdicts against co-workers who the state claimed were covered by privilege to report patient abuse. But the jury found that they had no privilege, because they made false reports," Ikei said.

Kenneth Robbins, who represented the state, could not be reached for comment. Attorney Roy Vitousek III, who represented Castro and Rodriguez on appeal, declined to comment.

Mock was in the news before she went to work at Le'ahi Hospital. In 1994, she was fired from the Hale Malamalama care home in Hawai'i Kai after she reported unsanitary conditions and ill-trained staff. Mock filed a wrongful termination lawsuit against Hale Malamalama and received $130,000 in a settlement.

Reach Curtis Lum at culum@honoluluadvertiser.com or 525-8025.