Cavins v. S & B Health Care, Inc.

• Decision Date: 30 September 2015
• Docket Number: No. 26615.,26615.
• Citation: 39 N.E.3d 1287
• Parties: Lisa CAVINS, Plaintiff–Appellee v. S & B HEALTH CARE, INC., Defendant–Appellant.
• Court: Ohio Court of Appeals

39 N.E.3d 1287

Lisa CAVINS, Plaintiff–Appellee

v.S & B HEALTH CARE, INC., Defendant–Appellant.

No. 26615.

Court of Appeals of Ohio, Second District, Montgomery County.

Sept. 30, 2015.

Dwight D. Brannon, Matthew C. Schultz, Dayton, OH, for Plaintiff–Appellee.

Lucian Bernard, Edgewood, KY, for Defendant–Appellant.

Opinion

WELBAUM

, J.

{¶ 1} Defendant–Appellant, S & B Healthcare, dba Home Healthcare by Black Stone (“Black Stone”) appeals from a jury verdict of $250,000 in favor of Plaintiff–Appellee, Lisa Cavins, on Cavins' claim of disability discrimination. In support of its appeal, Black Stone contends that the trial court prejudicially erred by failing to bifurcate the trial pursuant to R.C. 2315.21(B)

. Black Stone also contends that the verdict is against the manifest weight of the evidence.

{¶ 2} We conclude that Black Stone waived any error regarding bifurcation by failing to properly transmit the record or to supplement the record pursuant to App.R. 9(C)

. We further conclude that even if the error had not been waived, any error would have been harmless, because the jury did not find that Black Stone acted with malice. In addition, we conclude that the jury did not clearly lose its way and create a manifest miscarriage of justice by finding that Black Stone improperly discriminated against Cavins, or in awarding damages to Cavins. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} Appellant, Lisa Cavins, was employed as a registered nurse by Black Stone from April 24, 2007 to July 22, 2011, when she was terminated. Black Stone provides home healthcare services for the infirm and elderly, and Cavins visited patients at home, providing wound

care and implementing the medical plan of care for patients. Typically, she made between 40 and 70 visits per week, and was paid per visit.

{¶ 4} Prior to May 23, 2011, Cavins had only one disciplinary write-up, in October 2007, for performing wound

care on a patient without a doctor's order. Her supervisor, Melanie Mobley, described her as a “great nurse” and a “wonderful patient advocate” in a Christmas card sent in December 2010. Annual evaluations of Cavins done in April 2009 and April 2010 also resulted in above average scores.

{¶ 5} The April 2009 evaluation form contained a score under “Duties and Responsibilities” for documentation. The printed form read as follows: “Documents all client-related activities and turns documentation in weekly with the exception of Oasis assessments which are turned in within 48 hours.” Defense Ex. B, p. 2.¹ This is consistent with Black Stone's Administrative Policy Manual, which states that the responsibilities of a registered nurse, among others, are to “ * * * [p]repare clinical and progress notes documenting services provided and client care related activities to be submitted to Home Healthcare by Black Stone on a weekly basis.” Defense Ex. K, p. II–7, # 11. According to Cavins, she was required to turn in documentation weekly to Black Stone, and was never told to submit reports daily until July 2011.

{¶ 6} On Cavins' 2009 evaluation form, the word “weekly” is crossed out and the word “daily” is written in. Cavins' supervisor testified that she crossed out the word “weekly” when she did the evaluation because Black Stone had converted several years earlier to an electronic medical record and their evaluation form did not keep up with that. In contrast, Cavins testified that she did not believe the word “weekly” was crossed out when she was given her evaluation in 2009.

{¶ 7} On the 2009 evaluation form, Cavins was rated below average in the documentation category, and “timeliness of paperwork” was included under areas of improvement. In 2010, Cavins again received above average scores, and a below-average score for documentation. However, on this form, the areas of improvement were listed only as “seeking alternatives to daily or bid visits, attendance at meetings and educational offerings.” Defense Ex. C, p. 2.²

{¶ 8} In December 2010, Cavins filed a workers' compensation claim due to problems she was having with her arms and wrists. This was not based on a specific incident, but happened gradually over the four years Cavins worked for Black Stone, due to the amount of charting that needed to be done. The claim did not proceed formally eventually, as it was resolved by Black Stone providing Cavins with voice-activated software and a computer to assist with documentation. As was noted, Cavins' supervisor, Melanie Mobley, sent her a Christmas card in December 2010. The following message was enclosed with the card:

Lisa—you never cease to amaze me with your endless energy in keeping up with all of your patients. I know you are a wonderful patient advocate for your people and always have their best interest at heart. You are a great nurse. Just don't burn out on me! Get some rest. Melanie.

Defense Ex. X, p. 2.

{¶ 9} On January 2, 2011, Cavins was involved in an automobile accident while traveling to a patient's home. At the time, Cavins was sitting at a stop sign and was rear-ended by a car that left the scene. The police transported Cavins to Springfield Regional Hospital, with complaints of neck and shoulder pain, headache, and dizziness on the right side of the face. According to Cavins, she was in severe pain. She was treated and released, and reported the accident to Black Stone. On January 3, 2011, Cavins filled out an Incident Report, as required by Black Stone's policy, and the report was signed by her supervisor, Mobley, the same day. Plaintiff's Ex. 2. The report indicated that a follow-up visit was scheduled with Cavins' doctor, Dr. Macy, on January 5, 2011.

{¶ 10} After the first accident, Dr. Saliba, Cavins' workers' compensation doctor, prescribed Tylenol

II, as well as Cymbalta and Topamax, which help with nerve pain. Cavins testified that she continued to work because she could not afford to take off work. She also testified that after the first accident, she was treated differently by Black Stone. On several occasions, her supervisor, Mobley, asked her to add unnecessary things to patient documentation. Mobley was also short-tempered on many different occasions and failed to order supplies that Cavins needed.

{¶ 11} On May 23, 2011, Cavins received a verbal warning for excessive lateness with charting/documentation. According to Mobley, paperwork for billing and reimbursement, like patient signature sheets (proving a nurse had made a visit) and mileage records, were due weekly, while clinical notes were to be done daily. The description of the problem on the disciplinary record was “[l]ong term problem with not having paperwork completed and turned in by the designated deadline, including all written and electronic documentation.” Plaintiff's Ex. 4. The recommendation was that “Deadline for turning in written work and electronic documentation is 8 am Monday morning—no exceptions. ” (Emphasis sic.) Id. This conflicts with Mobley's testimony that some reports were due daily. Mobley indicated at trial that she probably made a mistake in writing out the disciplinary report. Trial Transcript, p. 265.³

{¶ 12} On the disciplinary report, Cavins stated that “I am having difficulty doing electronic work R/T chronic pain in hand, elbow, shoulders & neck.” Id. at Plaintiff's Ex. 4. Early in the morning on June 2, 2011, Cavins wrote an email to a co-worker, expressing appreciation for her help in obtaining a computer and other equipment that helped her document more easily. Cavins discussed the amount of pain she suffered daily, and indicated that she needed to overcome her struggles and be more productive in her job. Defense Ex. AA.

{¶ 13} Later that same day, Cavins was involved in another automobile accident. Cavins' daughter, Brittany Brewer, was driving Cavins' car because Cavins had been having pain. As Brewer began to turn into the parking lot of a patient's residence, another car ran into Cavins' car. Brewer sustained a broken arm and was taken by ambulance to the emergency room in Springfield. Because of her daughter's injury, Cavins did not immediately seek treatment for her own problems. However, the next day, Cavins went to the emergency room at a hospital in Kettering, Ohio (rather than a location closer to her home).⁴ At that time, Cavins complained of shoulder and neck pain. She then followed up with her family physician on June 6, 2011.

{¶ 14} Cavins testified that she notified Black Stone about the June 2, 2011 accident. However, the Black Stone employees, including Mobley, denied knowing about the claim prior to Cavins' termination, and the incident report produced at trial contained only Cavins' signature. See Plaintiff's Ex. 6. According to Cavins, the harassment from Black Stone increased after the second accident.

{¶ 15} There appears to be no dispute that Cavins had a heavy workload. Cavins testified that normal full-time employment was 20–25 visits per week, but she was always required to do more, including being forced into working on weekends, covering for other people, and picking up extra patients. Cavins also indicated that she had not had a holiday off since starting to work in 2007. For example, she saw 13 patients on the Fourth of July in 2011. Cavins stated that she had told Mobley multiple times that she had too many visits, and asked if someone could cover for her. However Mobley said everyone's schedule was full. In contrast, Mobley stated that she never forced Cavins to take visits.

{¶ 16} At some point before the June 2, 2011 accident, Dr. Macy had referred Cavins to Dr. Nguyen, a pain management doctor. Between the June 2, 2011 accident and her first appointment with Dr. Nguyen on July 1, 2011, Cavins continued to take Tylenol

II for her pain. On July 1, 2011, Dr. Nguyen ordered Duragesic or Fentanyl patches, and Cavins began using this patch. She testified that she did not believe the patch impaired her work. No patient or family member of a patient...