According to the Court’s opinion,
the plaintiff had been hired into three positions to replace a retiring
physician: to be the Executive Director of two research centers and to take over
the retiring physician’s private practice.
In addition, the retiring physician appointed her to replace him as the
Principle Investigator on the research studies being conducted by the two
research centers. While the research
centers was not affiliated with the private medical practice, they shared
office space, employees and patients. Shortly after she started, the plaintiff
became concerned with how the staff treated patient files (in that the research
studies and medical practice operated using the same file instead of having
different charts). Staff also left the
charts open on carts outside patient rooms. She felt that this violated HIPAA. She was also concerned that the retiring
physician routinely ordered larger doses of medication than medically necessary
and directed the patients to split them.
She felt that this was insurance fraud.
She also conferred with an attorney who
confirmed her suspicions. Accordingly,
at the next staff meeting, she directed the staff to cease the offending
practices and expressed her opinion that they violated HIPAA and insurance
fraud laws. The retiring physician
learned of her accusations and removed her as the PI and from his private
practice. The defendant employer did not
fire her or remove her from her ED positions, but explained that she should not
have made the allegations and it could not control the retiring physician from
removing her from his practice and research studies. After she refused to apologize to the
retiring physician and accused the employer of retaliation, it fired her a few
weeks later. She was awarded $800,000 in
compensatory and punitive damages by a jury.
The employer appealed.
Unlike Franklin and Cuyahoga
Counties, the Hamilton County Court of Appeals only recognizes narrow
exceptions to the employment at will doctrine and public policies as actionable wrongful
discharge claim if the underlying statute – like the general whistleblower
statute – requires the plaintiff to report concerns and prohibits the employer
from retaliating against the employee for reporting those concerns:
In a claim for wrongful discharge in violation of public
policy, an employee satisfies the clarity element by establishing that a clear
public policy existed, and that the public policy was one that imposed an
affirmative duty on an employee to report a violation, that prohibited an
employer from retaliating against an employee who had reported a violation, or
that protected the public’s health and safety.
With respect to the plaintiff in this case, the Court
concluded that the insurance fraud statute did not impose an affirmative duty
on her to report her concerns about the retiring physician’s insurance fraud or
prohibit her employer from terminating her for reporting those concerns. Accordingly, that statute could not
constitute a clear source of public policy as required for a public policy
wrongful discharge claim under Ohio law.
The Court reached the same conclusion with respect to the
HIPAA issues even though the Montgomery County Court of Appeals had previously
recognized it as providing a sufficiently clear source of public policy
protecting patient’s privacy rights. The
dissent would have recognized the HIPAA public policy claim as protecting
public safety.
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 be changed or 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.