McNeill-Marks v. Midmichigan Med. Ctr.-Gratiot, Docket No. 326606.

• Decision Date: 16 June 2016
• Docket Number: Docket No. 326606.
• Citation: 891 N.W.2d 528,316 Mich.App. 1
• Parties: McNEILL–MARKS v. MIDMICHIGAN MEDICAL CENTER–GRATIOT.
• Court: Court of Appeal of Michigan — District of US

316 Mich.App. 1

891 N.W.2d 528

McNEILL–MARKS

v.MIDMICHIGAN MEDICAL CENTER–GRATIOT.

Docket No. 326606.

Court of Appeals of Michigan.

Submitted June 8, 2016, at Lansing.

Decided June 16, 2016, at 9:00 a.m.

The Mastromarco Firm, Saginaw (by Victor J. Mastromarco, Jr., and Russell C. Babcock ) for Tammy McNeill–Marks.

Miller Johnson, Kalamazoo (by Sarah K. Willey ) for MidMichigan Medical Center–Gratiot.

Before: SAWYER, P.J., and Hoekstra and Wilder, JJ.

WILDER, J.

In this employment matter, plaintiff, Tammy McNeill–Marks, appeals as of right the trial court's order granting summary disposition to defendant, MidMichigan Medical Center–Gratiot (MMCG). We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

This case arises out of plaintiff's discharge from her position at MMCG. In 1991, plaintiff was hired as a registered nurse at a different MidMichigan Medical Center, which is located in Midland. She subsequently transferred to the Gratiot location, where she began to serve as clinical manager of perioperative services and ambulatory care.

Between 2006 and 2008, plaintiff adopted two children and had a third placed in her custody (collectively, the children). Each child has a different father, but the biological mother of all three is Sandi Lee Freeze, who is plaintiff's second cousin. Freeze's mother—the children's grandmother—is Marcia Fields. According to plaintiff, Fields suffers from several psychiatric disorders, including "paranoid schizophrenia, multiple personality disorder," and "bipolar depression." During the adoption process, Fields began to threaten plaintiff. She threatened to kill plaintiff, the children, and plaintiff's biological children. Such threats led plaintiff to seek a personal protection order (PPO) against Fields, which was eventually granted on an ex parte basis.

It is unclear from the record precisely when the initial PPO was issued, but presumably because it had expired, on December 19, 2012, plaintiff, through her legal counsel, Richard Gay, filed a petition again seeking an ex parte PPO against Fields. That same day, a circuit court judge granted plaintiff's ex parte petition, entering a PPO that prohibited Fields from having any contact with the children and from "posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s."

After its entry, Fields allegedly violated the PPO on several occasions by sending electronic messages to plaintiff. When plaintiff contacted local police regarding Fields's purported violations of the PPO and attempted to file a police report, the police "told [her] that [she] needed to contact [her] attorney, not [the police]," because the PPO had never been properly entered in the Law Enforcement Information Network (LEIN). On January 14, 2013, the circuit court entered an amended PPO, this time ordering Fields, among other things, to refrain from "stalking" plaintiff, as that term is "defined under MCL 750.411h and MCL 750.411i, which includes but is not limited to" (1) "following or appearing within sight of" plaintiff, (2) appearing at plaintiff's workplace or residence, and (3) "approaching or confronting [plaintiff] in a public place or on private property." The amended PPO explicitly noted that it would "remain[ ] in effect until 12/31/2013." Ignoring the amended PPO, Fields continued to contact plaintiff.

On December 27, 2013—four days before the expiration date of the amended PPO—plaintiff filed a motion, through Gay, to extend the amended PPO for another year. Later that day, the circuit court granted plaintiff's motion on an ex parte basis. The court entered a new PPO, which again ordered Fields to refrain from "stalking" plaintiff, as that term is "defined under MCL 750.411h and MCL 750.411i," and which specified that the order was "effective when signed, enforceable immediately," and would "remain[ ] in effect until 12/31/2014."

While at work roughly two weeks later, on January 13, 2014, plaintiff encountered Fields in a hallway at MMCG. At her deposition, plaintiff described the encounter as follows:

Q. ... Okay. You were walking down the hallway?

A. I came out of the operating room door.... I said "Hello" because you're trained to always speak to people. I didn't even realize who she [Fields] was or who the transporter was that was transporting her. I got three steps down the hallway and [Fields] said, "Hello, Tammy," in one of those little voices she does, and my stomach sank.

Q. She was being transported, in the sense that she was not walking herself?

A. Correct. She was in a wheelchair....

* * *

Q. Do you know what area of the hospital she had been admitted into?

A. No, I do not. Nor did I at that time.

Q. Did you understand that she was inpatient?

A. No, I did not.

Q. You didn't know, or you understood something different than that?

A. No, I had no way of knowing where [Fields] had came from [sic] in the hospital. Those transporters transport from ER, the tower, all outpatient services, she could have came from [sic] anywhere and be going anywhere.

* * *Q. After you had passed, [Fields] said, "Hello, Tammy"?

A. Yes.

Q. In whatever voice you had described?

A. A little sing-songy voice she has when she feels she has passed something over on you like a little kid. It's very specific.^[1]

Q. Were any other words exchanged?

A. No. I immediately went into another door.

Q. Do you have any reason to think that she somehow planned that encounter with you, meaning that she knew that you were going to be coming down the hallway in the moment that she was getting wheeled to a procedure?

[Plaintiff's counsel places an objection to foundation on the record, then instructs plaintiff to answer.]

A. I believe on more than one occasion she has admitted herself in the hospital with the hopes that she could ... make contact with me, yes.

Q. Well, I'm talking about with regard to this particular encounter, and then if you want we can expand on that; okay?

A. Okay.

Q. So with this particular encounter, the two of you passed each other in the hallway.

A. I don't believe that ... that anybody could necessarily—that wouldn't be a reasonable expectation, that she could plan to pass me in the hallway.

Q. After that encounter in the hallway, did you see her again at [MMCG]?

A. No, I did not.

After encountering Fields, plaintiff immediately went into an employee break room. She was "visibly upset and shaking," so much so that a coworker voiced concern, asking plaintiff what was wrong. Plaintiff was particularly upset that, through their encounter, Fields had learned "specifically where in the hospital" plaintiff worked. She feared that such knowledge would make Fields a danger to not only plaintiff but also her fellow employees. A short time later, plaintiff called her supervisor, Theresa Baily, who was already aware that plaintiff held a PPO against Fields, and informed Baily about what had transpired.

After speaking with Baily, plaintiff called her attorney, Gay, and told him, "[Fields] showed up today at my workplace." According to plaintiff, Gay never asked for further explanation about what plaintiff "meant" when she said that Fields "showed up" at MMCG. At no time did plaintiff inform Gay that Fields "was there in any form as a patient" or that Fields had been in a wheelchair. Likewise, plaintiff said nothing to Gay about the possibility of serving Fields with the latest PPO while Fields was at MMCG. Rather, questioning whether it was advisable to serve the PPO, plaintiff instructed Gay "not to serve [Fields] at all...." Gay confirmed that, through his conversation with plaintiff, he "was aware that ... Fields had approached [plaintiff] at the hospital in violation of the PPO," but he "did not have any information from [plaintiff] that [Fields] was a patient at the hospital...."

It is undisputed, however, that later that evening, while still a patient at MMCG, Fields was served with the PPO in her hospital room. According to plaintiff and Gay, Fields's service occurred as a matter of happenstance that bore no causal relationship to the encounter between plaintiff and Fields earlier that day. At the time, Gay's secretary, Deborah Brown, was dating Gay's process server, Lynn Beetley. Brown was at MMCG visiting another patient when "she thought she saw ... Fields as a patient" there. Brown called Gay, asking whether "it would be okay to serve [Fields] at the hospital" despite the fact that Fields was a patient. Gay responded, "[I]t sounds okay to me...." Brown evidently informed Beetley of the opportunity because, according to Gay, Beetley went to MMCG "during regular visiting hours, ... went to the desk," identified himself, asked for and received Fields's room number, then went to her room and served her.

Fields and her family reported the incident to MMCG as a suspected violation of federal privacy regulations, specifically those set forth by the Health Insurance Portability and Accountability Act (HIPAA).² Fields alleged that, after encountering Fields at MMCG, plaintiff must have "accessed her record somehow electronically," used such access to obtain Fields's room number, and then informed Gay of Fields's patient status and room number. An electronic audit later revealed that plaintiff did not improperly access Fields's electronic records.

On January 16, 2014, which was three days after plaintiff encountered Fields at MMCG, Gay filed, on plaintiff's behalf, a motion seeking to have Fields held in contempt for alleged violations of the PPO; however, the motion did not include Fields's encounter with plaintiff at MMCG as an alleged violation. A motion hearing was scheduled, but it was subsequently adjourned at Fields's request.

In reaction to Fields's HIPAA complaint, MMCG began an investigation, which involved several staff members, including MMCG's privacy officer, Suzanne Broudbeck. During the investigation, plaintiff admi...