Hulsmeyer v. Hospice of Sw. Ohio, Inc.

• Decision Date: 23 December 2014
• Docket Number: 2013–1766.,Nos. 2013–1644,s. 2013–1644
• Citation: 142 Ohio St.3d 236,29 N.E.3d 903,2014 Ohio 5511
• Parties: HULSMEYER, Appellee and Cross—Appellant, v. HOSPICE OF SOUTHWEST OHIO, INC., et al., Appellants and Cross–Appellees.
• Court: Ohio Supreme Court

142 Ohio St.3d 236

29 N.E.3d 903

2014 Ohio 5511

HULSMEYER, Appellee and Cross—Appellant,

v.HOSPICE OF SOUTHWEST OHIO, INC., et al., Appellants and Cross–Appellees.

Nos. 2013–1644

2013–1766.

Supreme Court of Ohio.

Submitted Sept. 23, 2014.

Decided Dec. 23, 2014.

I. Introduction

{¶ 1} In this opinion we address (1) a discretionary appeal by Hospice of Southwest Ohio, Inc. ("Hospice"), Joseph Killian, Hospice's chief executive officer, and Brookdale Senior Living, Inc. ("Brookdale"), (2) a cross-appeal by Patricia Hulsmeyer, and (3) a certified-conflict case from the First District Court of Appeals. The conflict certified by the court of appeals is whether "an employee or another individual used by a person or government entity to perform work or services [must] report or indicate an intention to report suspected abuse or neglect of a nursing home resident to the Ohio Director of Health to state a claim for retaliation under R.C. 3721.24(A)." Appellants and cross-appellees assert the following proposition of law: "R.C. 3721.24 and 3721.22 are related statutes that should be read together and, when read together, a claim for retaliation under R.C. 3721.24 requires a person reporting suspected abuse or neglect to make that report to the Director of Health."

{¶ 2} On cross-appeal, Hulsmeyer asserts the following proposition of law: "If R.C. § 3721.24 protects only employees or other persons who make reports of suspected abuse or neglect of a resident to the Director of Health, then persons who make such reports to an employer, to a family member of the resident, to law enforcement, or to other appropriate persons or entities must be permitted to assert claims for retaliation in violation of public policy."

{¶ 3} Initially, we address an issue regarding the certified question that was not raised by any party and does not change the outcome in this case but that we believe needs to be addressed to ensure the clarity of our holding. The issue certified as being in conflict contemplates reporting suspected abuse or neglect of a "nursing home resident." R.C. 3721.24 discusses reporting abuse of a "resident," and "resident" is defined in R.C. 3721.21(F) as including "a resident, patient, former resident or patient, or deceased resident or patient of a long-term care facility or a residential care facility ." (Emphasis added.) Accordingly, we modify the issue certified as follows:

Must an employee or another individual used by a person or government entity to perform work or services make a report or indicate an intention to report suspected abuse or neglect of a long-term-care-facility or a residential-care-facility resident to the Ohio Director of Health to state a claim for retaliation under R.C. 3721.24(A) ?

{¶ 4} We answer the certified question in the negative and hold that an employee or other person used to perform work or services who reports or indicates an intention to report suspected abuse or neglect of a long-term-care-facility or a 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. Because we hold that Hulsmeyer has stated a cognizable retaliatory-discharge claim under R.C. 3721.24, we decline to address her cross-appeal. Accordingly, we affirm the judgment of the court of appeals.

II. Facts and Procedural History

{¶ 5} Hospice is an organization that provides nursing care for persons who are terminally ill. Hospice does not have its own facility to provide inpatient care in southwest Ohio. Instead, it provides nursing care to patients where they live. In 2011, Hospice provided care to residents of a residential care facility owned by Brookdale, including Pat Cinquina, an 81–year–old woman.

{¶ 6} Because Hulsmeyer's claims were resolved on a motion to dismiss for failure to state a claim, in reviewing this case, we accept as true all material allegations in her complaint and construe all reasonable inferences in her favor. Mitchell v. Lawson Milk Co ., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). In April 2010, Hospice hired Patricia Hulsmeyer as a registered-nurse case manager. Eight months later, Hulsmeyer was promoted to team manager. As a team manager, Hulsmeyer oversaw the care of Hospice patients and monitored the work of other Hospice nurses and aides. At an October 19, 2011 patient-care meeting, a Hospice nurse indicated that she had noticed bruising on Cinquina and that she suspected that abuse or neglect by Brookdale's staff had caused the bruises. Rachel Brown, an aide, divulged that she had used her cell phone to take pictures of bruising on Cinquina's body. Brown forwarded the pictures to Hulsmeyer's phone. A Hospice nurse and staff doctor at the meeting advised Hulsmeyer that she was obligated to notify Brookdale and Cinquina's family of the suspected abuse or neglect. Hulsmeyer immediately called Brookdale and reported the suspected abuse or neglect to Cindy Spaunagle, Brookdale's director of nursing, who indicated that she would examine Cinquina and then contact Cinquina's daughter after the examination. Hulsmeyer then informed Isha Abdullah, the chief clinical officer of Hospice, of the suspected abuse or neglect. And after she left Abdullah's office, Hulsmeyer informed Cinquina's daughter of the suspected abuse or neglect.

{¶ 7} At a November 2011 meeting at Brookdale to discuss Cinquina's care, Brown's cell phone was passed around so that the photo of Cinquina's bruising could be seen. Attending the meeting were Hulsmeyer, Spaunagle, nurses, Cinquina's son and daughter, and others.

{¶ 8} Contrary to the assertion in Hulsmeyer's complaint, Abdullah claimed in a deposition that she did not learn of the suspected abuse or neglect until she received a call from a Brookdale employee. Abdullah claimed that Hulsmeyer violated Hospice's company policy by not first reporting the suspected abuse or neglect to Hospice management.

{¶ 9} On November 30, 2011, Hospice terminated Hulsmeyer. The termination letter stated that Hospice has a "policy that states, ‘All suspected abuse, neglect or exploitation of patients and suspected abuse or neglect of children will be reported immediately to CEO/designee.’ " The letter gives three reasons for Hulsmeyer's discharge: (1) Hulsmeyer permitted photos of Cinquina to be taken without receiving authorization from a person with power of attorney, (2) Hulsmeyer notified Brookdale and Cinquina's daughter of the suspected abuse or neglect without first notifying Hospice, in violation of Hospice's policy, and (3) Hulsmeyer improperly shared the photos at a patient-care conference to discuss Cinquina's care, which was attended by staff from both Hospice and Brookdale and Cinquina's family, before informing Hospice of the suspected abuse or neglect.

{¶ 10} On the termination letter, next to the word "Comments" is the following handwritten statement by Hulsmeyer:

I do not agree with the above statement. I was not provided guidance by my superiors in regards to the policy regarding suspected abuse/neglect. I reported the concerns that were brought to my attention on 10/19 to Isha Abdulla[h], CCO. I asked her for direction on how to handle the situation. I told her that social work and the team [doctor] stated I should and was obligated to notify the facility and the family of the concerns. She did not discourage me from doing so.

I did not authorize photos of the patient to be taken any time.

{¶ 11} Hulsmeyer filed a civil action seeking damages against Hospice, Joseph Killian, and Brookdale. The complaint alleged that she had a statutory retaliatory-discharge claim under R.C. 3721.24 and a common-law wrongful-discharge claim against Hospice and Killian for firing her for reporting suspected abuse or neglect and against Brookdale for inducing Hospice to fire her. Hospice, Killian, and Brookdale filed motions to dismiss alleging that Hulsmeyer's statutory retaliatory-discharge claim failed to state a claim upon which relief could be granted. The motions to dismiss alleged that an employee may file a retaliatory-discharge claim under R.C. 3721.24 only if the employee reported the suspected abuse or neglect to the Ohio director of health, which Hulsmeyer did not do. The trial court agreed and granted the motions to dismiss regarding Hulsmeyer's retaliatory-discharge claims under R.C. 3721.24. The trial court also held that Hulsmeyer's common-law wrongful-discharge claim failed to state a claim because R.C. 3721.24 was an adequate statutory remedy to protect society's interests in encouraging employees to report suspected abuse or neglect.

{¶ 12} Hulsmeyer appealed. The court of appeals reversed the trial court's judgment in part and affirmed it in part. The court of appeals reversed the trial court's judgment to the extent that it dismissed Hulsmeyer's statutory retaliatory-discharge claim. The court of appeals held that the plain language of R.C. 3721.24(A) does not require an employee or other person to report suspected abuse or neglect to the Ohio director of health in order to be protected from retaliation. However, the court of appeals affirmed the trial court judgment to the extent that it dismissed Hulsmeyer's common-law wrongful-discharge claim.

{¶ 13} We accepted Hospice, Killian, and Brookdale's joint discretionary appeal and Hulsmeyer's cross-appeal. 138 Ohio St.3d 1412, 2014-Ohio-566, 3 N.E.3d 1215. We also determined that a conflict exists and consolidated the cases. Id .

III. Analysis

{¶ 14} R.C. 3721.24 provides a retaliatory-discharge cause of action for employees who are terminated for reporting or indicating an intention to report suspected abuse or neglect of long-term-care-facility or residential-care-facility residents. The question is whether the report of suspected abuse or neglect must be made to the director of health in order to state a cognizable retaliatory-discharge claim.

{¶ 15}...