Sygula v. Regency Hosp. of Cleveland E.

• Decision Date: 05 May 2016
• Docket Number: No. 103436.,103436.
• Citation: 64 N.E.3d 458
• Parties: Laura SYGULA, Plaintiff–Appellant v. REGENCY HOSPITAL OF CLEVELAND EAST, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

64 N.E.3d 458

Laura SYGULA, Plaintiff–Appellant

v.REGENCY HOSPITAL OF CLEVELAND EAST, et al., Defendants–Appellees.

No. 103436.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 5, 2016.

Dennis J. Niermann, Shaker Heights, OH, for Appellant.

Michelle T. Hackim, Vincent J. Tersigni, Jackson Lewis P.C., Cleveland, OH, for Appellees.

Before: E.T. GALLAGHER, P.J., LASTER MAYS, J., and CELEBREZZE, J.

ANITA LASTER MAYS, J.

{¶ 1} Plaintiff-appellant, Laura Sygula ("Sygula"), appeals from the trial court's decision in favor of defendants-appellees, Regency Hospital of Cleveland East ("Regency"), Krista McFadden ("McFadden"), and Karen Obendorf Keller ("Keller"). After a thorough review of the record, we affirm the trial court's decision to grant summary judgment in favor of the appellees.

{¶ 2} On November 14, 2012, charge nurse Andrea Kimble ("Kimble") reported to McFadden, the director of nursing at Regency, that she had discovered a discrepancy involving a missing narcotic. Kimble told McFadden that she investigated to see which nurse requested the narcotic that was never given to the patient for whom it was requested. Kimble noticed that the request came from an agency nurse named Daiedra White ("White") under a temporary account, but the spelling of her name was incorrect, which seemed strange to Kimble. Kimble confronted White, who told her that she never requested the narcotic and was working in another department during the time of the request.

{¶ 3} Kimble and McFadden contacted Omnicell, the company that manufactures the pill dispenser, to notify them of a glitch in their system. Omnicell, Kimble, and McFadden discovered that a charge nurse can create a temporary account, using anyone's name, to dispense pills. Omnicell created this function because temporary nurses are not given accounts to request medication from the pill dispenser. A charge nurse has to create a temporary account for the temporary nurses under the charge nurse's account using their fingerprints.

{¶ 4} This process is as follows: Full-time nurses are already entered into the Omnicell system, but temporary agency nurses are entered in the system by charge nurses and their accounts are only valid for one shift. In order for a charge nurse to create a temporary account, the charge nurse must input their user identification, which consists of their three initials, the last four digits of their social security number, and their password, which they created. The charge nurse must then submit their fingerprint to complete the login. After the discrepancy was discovered, McFadden requested a report from Omnicell that would list the names of the charge nurses that created the temporary accounts for the temporary agency nurses.

{¶ 5} Omnicell generated the report that McFadden requested, and McFadden noticed that beginning on September 14, 2012, temporary accounts were being created by the user LLS7349 to receive Vicodin and Percocet, but neither drug had been given to the patients for whom they were requested. McFadden also noticed that new, full-time employees had temporary accounts created for them by that same user. Approximately 88 doses of Vicodin and Percocet had been requested by LLS7349 for various patients who never received them. The user name LLS7349 belonged to Sygula. Upon this discovery, McFadden contacted Keller, the director of pharmacy, who continued the investigation.

{¶ 6} McFadden and Keller consulted with Scott Williams ("Williams"), the local CEO, as well as other members of Regency's management and legal team. One of the members, Kurt Streepy, the vice president of pharmacy, informed Keller and McFadden that the State of Ohio Board of Pharmacy ("State Board") requires them to immediately report any potential drug diversion at a hospital. Keller reported it, and was instructed to also report the matter to the local police.

{¶ 7} On November 16, 2012, McFadden contacted the Warrensville Heights Police Department ("WHPD") and spoke to Officer John Videc ("Videc"), who instructed her to complete a police report. That same day, McFadden contacted Sygula, requested that she submit to a drug test, and suspended her pending an investigation. McFadden also contacted the Ohio Board of Nursing ("Board of Nursing") to inform them of the incident.

{¶ 8} On November 20, 2012, Sygula met with Williams, McFadden, Keller, and WHPD Detective Dennis Fossett ("Fossett"). They presented the records to Sygula showing her all the temporary accounts that she was suspected of creating. She denied creating them and taking the drugs. In that meeting, Sygula remembered that she did create several temporary accounts, but would routinely leave the room after she input her login credentials, leaving the temporary agency nurses to request whatever pills they choose. This practice violated hospital policy, and Sygula's employment was terminated December 6, 2012, for failure to adhere to Regency's medication administration policy.

{¶ 9} Regency did not press charges against Sygula, however, after Fossett concluded his investigation, he presented the evidence to the Cuyahoga County Prosecutor's office, who decided to indict Sygula. Sygula was indicted for theft; a fourth-degree felony in violation of R.C. 2913.02(A)(3) ; illegal processing of drug documents, a fourth-degree felony in violation of R.C. 2925.23(A) ; illegal processing of drug documents, a fifth-degree felony in violation of R.C. 2925.23(A) ; five counts of identify fraud, a fifth-degree felony in violation of R.C. 2913.49(B)(2) ; two counts of drug possession, a fifth-degree felony in violation of R.C. 2925.11(A) ; and one count of drug possession, a first degree misdemeanor in violation of R.C. 2925.11(A).

{¶ 10} During the investigation, Sygula testified that she had created many temporary accounts for respiratory therapist Rebecca D'Amico ("D'Amico"). D'Amico claimed that her login information was not working properly and needed Sygula to login for her. However, Sygula could not identify the dates when she created these accounts, and had no knowledge of whether or not D'Amico was involved in the theft of the missing pills. On July 1, 2013, the Cuyahoga County Prosecutor dismissed the charges against Sygula without prejudice.

{¶ 11} Sygula sued Regency, McFadden, and Keller for maliciously reporting her to the police and the board of nursing. On summary judgment, the trial court dismissed all causes of actions in favor of the appellees. As a result, Sygula filed this timely appeal and assigns the following errors for our review.

I. The trial court erred in ruling appellant did not present evidence as to each element of defamation, including evidence of malice where a qualified immunity is raised.

II. The trial court erred in ruling appellant did not present evidence as to each element of negligent infliction of emotional distress where appellant provided evidence of malice.

III. The trial court erred in ruling appellant did not present evidence to support her claim of negligent reporting.

IV. The trial court erred in holding appellant did not establish a prima facie case of malicious prosecution.

V. The trial court erred in holding Ohio does not require retention of fingerprints used as positive identification to withdraw dangerous drugs, and therefore dismissing appellant's claim for wrongful termination against public policy.

VI. The trial court erred in dismissing counts 6, 7, and 8 alleging negligent hiring, negligent supervision, and negligent retention.

I. Summary Judgment

A. Standard of Review

{¶ 12} "This court reviews the lower court's granting of summary judgment de novo." Baiko v. Mays, 140 Ohio App.3d 1, 7, 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987) ; Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997) ; Dragmen v. Swagelok Co., 8th Dist. Cuyahoga No. 101584, 2014-Ohio-5345, 2014 WL 6807373, ¶ 15. "An appellate court affords no deference to the trial court's ruling and conducts an independent review of the record to determine whether summary judgment is appropriate." K.S. v. Pla–Mor Roller Rink, 8th Dist. Cuyahoga No. 103139, 2016-Ohio-815, 2016 WL 860345, ¶ 7. "The reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul, 71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990).

{¶ 13} "Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party." Pla–Mor Roller Rink at ¶ 8.

{¶ 14} "The party moving for summary judgment has the initial burden to show that no genuine issue of material fact exists." Id. at ¶ 9. In Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996), the Ohio Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). Under Dresher, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Id. at 296, 662 N.E.2d 264. "The movant cannot simply rely on conclusory assertions that the nonmovant has no evidence—the movant must specifically point to evidence contained within the pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc., which affirmatively demonstrate that the nonmovant has no evidence to support his claims." Id. at 293, 662 N.E.2d 264.

{¶ 15} "The...