Amesse v. Wright State Physicians, Inc., 27370

Citation105 N.E.3d 612,2018 Ohio 416
Decision Date02 February 2018
Docket NumberNO. 27370,27370
Parties Dr. Lawrence AMESSE, M.D., Ph.D., Plaintiff–Appellee v. WRIGHT STATE PHYSICIANS, INC., et al., Defendants–Appellants
CourtUnited States Court of Appeals (Ohio)

JONATHAN HOLLINGSWORTH, Atty. Reg. No. 0022976, Hollingsworth & Washington, LLC, 6494 Centerville Business Parkway, Centerville, Ohio 415459, Attorney for DefendantsAppellants

MARC D. MEZIBOV, Atty. Reg. No. 0019316, and SUSAN L. BUTLER, Atty. Reg. No. 0082811, Mezibov Butler, 615 Elsinore Place, Suite 105, Cincinnati, Ohio 45202, Attorneys for PlaintiffAppellee

OPINION

DONOVAN, J.

{¶ 1} Defendant-appellant Wright State Physicians, Inc. (hereinafter "WSP"), and defendants-appellants Margaret Dunn, M.D., and Jerome Yaklic, M.D., appeal a judgment, pursuant to jury verdict, of the Montgomery County Court of Common Pleas in favor of plaintiff-appellee Lawrence Amesse, M.D., Ph.D., on his claims for breach of contract, employment discrimination, and retaliation. Appellants filed a timely notice of appeal with this Court on December 2, 2016.

I. Facts and Procedural History

{¶ 2} From 1998 until 2013, Dr. Amesse was employed by WSP as a physician and by Wright State University's Boonshoft School of Medicine (hereinafter "BSOM") as a professor of obstetrics and gynecology. WSP is a physician-managed multi-specialty practice. During the course of his employment at WSP and BSOM, Dr. Amesse was promoted to associate professor, and then full professor at BSOM. Dr. Amesse also later became director of WSP's Andrology Laboratory, Director of Reproductive Endocrinology and Infertility (hereinafter "REI") Division, and Clerkship Director for BSOM's medical students.

{¶ 3} Similar to Dr. Amesse, both Drs. Dunn and Yaklic were employees of WSP and BSOM. At all relevant times, Dr. Dunn was the Chief Executive Officer and President of WSP. Dr. Dunn was also the Executive Associate Dean at BSOM. Dr. Yaklic was the Acting Chair of Obstetrics and Gynecology at WSP and BSOM.

{¶ 4} In January of 2011, Dr. Amesse was called to attend a meeting with Dr. Yaklic and Dr. Ventolini, another physician-employee of WSP and BSOM. During the meeting on January 25, 2011, Dr. Amesse was informed that WSP had received a complaint alleging that he had harassed Cindy Gnau, a WSP employee who worked with Dr. Amesse in the REI Division. Thereafter, at another meeting on February 7, 2011, Dr. Amesse was informed that WSP's investigation had revealed other complaints regarding his behavior towards Gnau. As result of its investigation, WSP reassigned Gnau to another section of the office with which Dr. Amesse was not involved. WSP also requested that Dr. Amesse not have any further contact with Gnau.

{¶ 5} Notwithstanding its request, WSP received reports that Dr. Amesse was still having contact with Gnau in the office. WSP also alleged that it received complaints that Dr. Amesse acted inappropriately and unprofessionally towards other staff in the office. Specifically, WSP alleged that Dr. Amesse yelled at staff about vacation scheduling, took staff to lunch despite being asked not to do so by management, provided soft drinks to WSP staff from the Miami Valley Hospital physician's lounge after being informed this violated hospital rules, loitered with staff while patients waited for him, and "consistently" arrived late for work.

{¶ 6} WSP officials also asserted that Dr. Amesse acted unprofessionally by shouting and playing loud music in his office while patients were present. WSP alleged that it had received complaints from two patients that Dr. Amesse "appeared confused" while treating them in the medical office. Evidence was also adduced that Erin Yontz, a former WSP employee, had resigned specifically because of Dr. Amesse's negative conduct towards her.

{¶ 7} Based upon the allegations of inappropriate and unprofessional conduct, Dr. Yaklic and Dr. Albert Painter, another WSP employee and BSOM administrator, asked Dr. Amesse to attend a meeting on August 15, 2011. During the meeting, Dr. Yaklic informed Dr. Amesse of the several complaints and allegations regarding his conduct at work. As a result of his behavior, WSP ordered Dr. Amesse to attend a fitness-for-duty examination conducted by Dr. Melvyn Nizny of the Psychoanalytic Institute.

{¶ 8} Initially, Dr. Amesse agreed to submit to the psychological evaluation, and the examination was scheduled to be conducted on August 29, 2011. Shortly thereafter, Dr. Amesse had a change of heart and cancelled his appointment with Dr. Nizny. As a result, Dr. Yaklic informed Dr. Amesse that he was suspended from WSP, and therefore not permitted to treat any patients in the WSP private offices until he submitted to the fitness-for-duty examination. Dr. Amesse was still permitted to treat his own private patients as well as attend to his duties supervising medical students and staff at BSOM.

{¶ 9} Dr. Amesse relented, and on September 2, 2011, he met with Dr. Nizny for the fitness-for-duty examination. On September 9, 2011, counsel for Dr. Amesse sent a letter to WSP indicating a concern that Dr. Amesse's rights pursuant to the Americans With Disabilities Act (hereinafter "ADA") were being violated by the suspension. WSP did not respond to the letter. Thereafter, on September 27, 2011, Dr. Amesse met with Janet D. Castellini, a licensed psychologist, for further testing. On October 4, 2011, Dr. Amesse's counsel sent a second letter to WSP in which he reiterated his concern that the suspension violated Dr. Amesse's rights under the ADA. Again, WSP did not respond to the letter.

{¶ 10} Dr. Amesse's fitness-for-duty examination was eventually completed by the end of October of 2011. On November 15, 2011, Dr. Nizny issued a report to WSP advising that Dr. Amesse was fit for duty, provided that he received counseling for at least six months. WSP lifted the suspension, and Dr. Amesse returned to work on November 17, 2011.

{¶ 11} On May 14, 2012, Dr. Yaklic and Dr. Dunn informed Dr. Amesse that he would be required to reimburse WSP for a financial deficit of $107,222.00 accrued between the months of July 1, 2011 and March 30, 2012. Approximately $76,537.00 of that amount was attributed to the period during which Dr. Amesse was suspended from treating patients in the WSP private office pending the outcome of his fitness-for-duty examination. Dr. Amesse was also informed that he would no longer be receiving a WSP salary beginning in June of 2012 in order to cover the financial deficit created by his department.

{¶ 12} During this period, WSP held additional meetings with Dr. Amesse in order to discuss performance and conduct related matters regarding his non-compliance with office procedures involving the andrology laboratory's certification and WSP's chaperone policy. WSP also informed Dr. Amesse of complaints regarding his alleged failure to utilize the appropriate e-mail addresses for medical personnel; authorizing free care for patients; not appropriately documenting patient encounters; and violating chain of command within the office. During a meeting in August of 2012, Dr. Amesse was informed by WSP that "[a]ny further contact with private office staff outside of normal business and official department activities would be grounds for immediate suspension from all patient care activities in the private office."

{¶ 13} After August of 2012, WSP stated that it became aware of additional complaints about Dr. Amesse's allegedly inappropriate work behavior, to wit: failure to use proper hand washing techniques when performing an ultrasound on a female patient; discussing personal financial information with resident physicians; keeping patient information on a laptop computer which did not have an encrypted hard drive; and instructing WSP staff to schedule surgeries at Children's Medical Center. Dr. Amesse was also accused of improperly calling in prescriptions for patients who were not treated at WSP private offices.

{¶ 14} Based upon the new allegations of inappropriate and unprofessional conduct, on December 12, 2012, Drs. Dunn and Yaklic placed Dr. Amesse on administrative leave. After Dr. Amesse was suspended for a second time, WSP retained Dr. Bruce Carr, M.D., in order to evaluate his professional ability. Using medical and financial documents selected by WSP from the last six months of Dr. Amesse's practice, Dr. Carr created a report that he provided to WSP on January 13, 2013. In his report, Dr. Carr was highly critical of every aspect of Dr. Amesse's practice of medicine. Dr. Carr also called into question Dr. Amesse's "basic understanding of medical and reproductive endocrinology." Thereafter, on January 25, 2013, Dr. Dunn met with Dr. Amesse and provided him with a letter stating that his employment with WSP would be terminated effective as of April 30, 2013. On February 22, 2013, Dr. Amesse received a letter from the Dean of BSOM informing him that he was being dismissed from his faculty position.

{¶ 15} On January 6, 2015, Dr. Amesse filed a complaint against WSP, Dr. Dunn, and Dr. Yaklic in which he asserted claims for breach of contract, employment discrimination, and retaliation.1 The defendants filed an answer to Dr. Amesse's complaint on February 6, 2015.

{¶ 16} After extensive motion practice by both parties, the case proceeded to a jury trial which began on May 2, 2016, and concluded on May 17, 2016. During trial, all of the defendants moved for a directed verdict with respect to each of Dr. Amesse's claims. The trial court denied the motions for directed verdict. At the conclusion of the trial, the jury returned verdicts in favor of Dr. Amesse on all of his claims, except one verdict on the discrimination complaint against Dr. Yaklic. For his breach of contract claim against WSP, Dr. Amesse was awarded $109,996.00 in economic damages. For his discrimination claim against WSP, Dr. Amesse was awarded $85,000.00 in economic damages. For his discrimination claim against Dr....

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4 cases
  • Mancz v. McHenry
    • United States
    • United States Court of Appeals (Ohio)
    • January 15, 2021
    ...weight of the evidence only in an exceptional case in which the evidence weighs heavily against the judgment. Amesse v. Wright State Physicians, Inc., 2018-Ohio-416, 105 N.E.3d 612, ¶ 46 (2d Dist.) (noting that the same manifest-weight standard of review applies in civil and criminal cases)......
  • State v. Sutherland
    • United States
    • United States Court of Appeals (Ohio)
    • July 16, 2021
    ...associated with the potentially inflammatory evidence must substantially outweigh its probative value. Amesse v. Wright State Physicians, Inc. , 2018-Ohio-416, 105 N.E.3d 612, ¶ 36 (2d Dist.). {¶ 32} The seven probative and relevant Google searches should be admitted due to their importance......
  • Hoke v. Miami Valley Hosp.
    • United States
    • United States Court of Appeals (Ohio)
    • June 19, 2020
    ...weight of the evidence only in an exceptional case in which the evidence weighs heavily against the judgment. Amesse v. Wright State Physicians, Inc., 2018-Ohio-416, 105 N.E.3d 612, ¶ 46 (2d Dist.) (noting that the same manifest-weight standard of review applies in civil and criminal cases)......
  • State v. Sutherland
    • United States
    • United States Court of Appeals (Ohio)
    • July 16, 2021
    ...... outweigh its probative value. Amesse v. Wright State. Physicians, Inc., 2018-Ohio-416, 105 ......

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