According to the Court’s opinion,
in that case, the plaintiff nurse allegedly reported within 24 hours suspected
patient abuse to her supervisor, the nursing home’s nursing director and the
patient’s daughter. Apparently, the
nursing home’s nursing supervisor had not informed her management and did not
call the patient’s daughter as promised.
After the passage of almost a week, the patient’s daughter insisted on a
resolution and a meeting was held. During
the plaintiff’s unrelated medical leave of absence, a regional manager of the
nursing home demanded that the hospice employer do something about the
plaintiff for reporting the suspected abuse to the patient’s daughter and shared
that the nursing home had terminated its nursing director because of the
incident. When the plaintiff returned to
work, she was called to attend a meeting and conference call with the nursing
home’s regional manager, who admonished her for making the nursing home look
bad, stirring up problems, permitting photographs of the patient to be taken
and calling the family. She also
indicated that the nursing home would stop recommending her hospice employer. Two days later, she was fired – purportedly for
not notifying the Hospice’s management in a timely manner about the suspected
abuse and for calling the patient’s family.
The plaintiff filed suit under
public policy and Ohio Revised Code 3721.24, which provides in relevant part:
(A)
No
person or government entity shall retaliate against an employee or another
individual used by the person or government entity to perform any work or
services who, in good faith, makes a report of suspected abuse or neglect of a
resident or misappropriation of the property of a resident; indicates an
intention to make such a report; provides information during an investigation
of suspected abuse, neglect, or misappropriation conducted by the director of
health; or participates in a hearing conducted under section 3721.23 of the
Revised Code or in any other administrative or judicial proceedings pertaining
to the suspected abuse, neglect, or misappropriation. For purposes of this
division, retaliatory actions include discharging, demoting, or transferring
the employee or other person, preparing a negative work performance evaluation
of the employee or other person, reducing the benefits, pay, or work privileges
of the employee or other person, and any other action intended to retaliate
against the employee or other person.
. . .
(B)
. . . If
[a court] finds that a violation has occurred, the court may award damages and
order injunctive relief. The court may award court costs and reasonable
attorney's fees to the prevailing party.
The trial court read
this statute together with §3721.22 which requires medical professionals to
report suspected abuse to the Director of Health. The
Court of Appeals found that this particular statute did not require the
employee to report the suspected abuse to the Director of Health in order to
come within the statutory protection.
Otherwise, the statute could have made this more clear by inserting “to
the director of health” after “makes a report” or referring to §3721.22.
In addition, the
Court agreed with the plaintiff that the whistleblower statute permitted her to
sue not only her own employer for retaliation, but also the nursing home where
she often provided hospice services and was ”used by” the defendant nursing
home to perform work.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
