Ohio Court Dismisses Physical Therapist's Public Policy and Whistleblower Claims Against Non-Profit Employer For Not Alleging Criminal Misconduct.

Late last month, the Montgomery County Court of Appeals affirmed the summary judgment entered for a non-profit employer of a physical therapist who had claimed that she had been wrongfully discharge in violation of public policy and Ohio’s Whistleblower statute. Duvall v. United Rehabilitation Servs. of Greater Dayton, 2008-Ohio-6231. The court held that the public policy claim failed because the Ohio statute which prohibited professional associations from interfering with the professional judgment of a physical therapist did not apply to non-profit employers. In addition, the court held that the whistleblower statute only applied to allegations of criminal conduct, which the plaintiff had not raised before being terminated.

According to the court’s opinion, the plaintiff provided hydrotherapy to patients in a heated swimming pool. Before being terminated, she had complained to her employer about the temperature of and amount of chlorine in the pool. She also complained “about the fact that URS required her to obtain a supervisor’s approval in order to suspend or discontinue hydrotherapy regimen for patients.” She ultimately was fired for placing “a patient with cerebral palsy in a supine position in the pool despite her knowledge that the patient was afraid of being placed in such a position” in violation of a “policy which prohibited staff from using “idiosyncratic aversives that are frightening to the consumer.’”

In her claim, the plaintiff alleged that the employer violated Ohio Revised Code § 1785.03, which provides in pertinent part that “[n]o professional association formed for the purpose of providing a combination of the professional services *** of *** physical therapists authorized under sections 4755.40 to 4755.56 of the Revised Code ***shall control the professional clinical judgment exercised within accepted and prevailing standards of practice of a licensed *** physical therapist *** rendering care, treatment, or professional advice to an individual patient.” As mentioned, the court rejected this claim because the non-profit employer was not subject to R.C. 1785.02 and no similar statute applied to non-profit organizations. Further, the court likewise rejected the plaintiff’s claim that the employer’s attempt to supervise her violated Ohio Administrative Code. §4755-27-02, which precluded licensed physical therapists from delegating their professional duties and responsibilities. Rather, the court noted that there is no statutory or administrative prohibition on all supervision of physical therapists.

Finally, the court followed prior interpretations of Ohio Revised Code § 4113.52, which prohibits an employer from taking disciplinary or retaliatory action against an employee for reporting criminal violations of certain laws. Because none of the complaints made by the plaintiff about the pool’s temperature or chlorine level involved criminal actions, none of those complaints were protected by the whistleblower statute.

Insomniacs may read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-6231.pdf.