Ohio Supreme Court Finds Broad Statutory Whistleblowing Protection for Patient Abuse

Less than a week after rejecting a different whistleblower claim for not strictly complying with the applicable whistleblower statute, the Ohio Supreme Court this morning approved a whistleblower retaliation claim brought by a nurse who was terminated by a hospice employer after reporting suspected patient abuse to a nursing home and patient family. Hulsmeyer v. Hospice of Southwest Ohio, Inc., Slip Opinion No. 2014-Ohio-5511.  As reported here last year, the plaintiff alleged that she was terminated by her hospice employer in retaliation for reporting patient abuse (that had been reported to her by a subordinate) to the nursing home of the patient which had allegedly been abused and the patient’s family.  The employer had successfully argued to the trial court that her report was not protected by R.C. § 3721.24 because she did not report or threaten to report the potential patient abuse to the Ohio Director of Health.  On appeal, the Court held that an employee or contractor “who reports or indicates an intention to report suspected abuse or neglect of a long-term care-facility or residential-care-facility resident is not required to report or indicate an intent to report the suspected abuse or neglect to the Ohio director of health in order to state a claim for retaliatory discharge under R.C. 3721.24.”  The Court refused to address whether the plaintiff had stated a common law wrongful discharge claim in her complaint.

 According to the Court’s opinion, the plaintiff had alleged in her complaint that she had received a report from one of her subordinates that a patient had been bruised, presumably by the nursing home staff where she resided.  The nurse had taken pictures of the bruises.  The plaintiff had been advised by a social worker and staff physician to report this to the nursing home and the patient’s family.  She claims that she also reported this to her own boss before she discussed it with the nursing home and patient family.  However, a few weeks later, she was terminated for bringing the issue to the nursing home and patient family and authorizing the pictures to be taken of the patient without first informing or obtaining authorization from her employer.

The statute which prohibits retaliation against employees or contractor for reporting suspected patient abuse is silent about where the report must be made to come within coverage of the statutory protection.  R.C. § 3721.24 states in relevant part that: 

(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.

The defendant employer argued that this silence makes the statute ambiguous and should be interpreted to refer to an earlier statutory section which covers licensed healthcare professionals and others, including residents of long-term care and residential facilities, at R.C. § 3721.22.  That section requires licensed healthcare professionals to report suspected abuse to the Director of Health, permits residents and others to make such reports and protects them from criminal and civil prosecution.   However, §3721.24 covers a different groups, such as any employees (rather than merely licensed professionals) and contractors.  The Court found this difference to be significant:

Providing employees broader reporting options than those found in R.C. 3721.22 is consistent with the purpose of preventing retaliation against employees. Employees may be more likely to report suspected abuse or neglect to someone other than the director of health, such as a resident’s family member or a coworker.   

The Court also found the anti-retaliation provision was not ambiguous by omitting where reports of suspected abuse were to be made.   

Because the General Assembly enacted R.C. 3721.22 and 3721.24 in the same bill, we presume that the absence of any requirement in R.C. 3721.24 that a report, or intent to report, suspected abuse or neglect must be made to the director of health was intentional. If the  General Assembly had intended to afford protection to only those employees who reported, or indicated an intention to report, suspected abuse or neglect to the director of health, it could have done so by inserting the words “to the director of health” after the word “report” in R.C. 3721.24(A), or by incorporating the requirement from R.C. 3721.22. It did neither. And we will not add those words by judicial fiat.

The lone dissent agreed with the employer that §3721.24 should be interpreted to be consistent with §3721.22.  However, Justice French also would have found a public policy wrongful discharge claim to exist from the allegations in the Complaint.  

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.