Wayt v. DHSC, LLC

Decision Date18 September 2017
Docket NumberNo. 2016CA00215,2016CA00215
Citation97 N.E.3d 903,2017 Ohio 7734
Parties Ann WAYT, Plaintiff–Appellee v. DHSC, LLC dba Affinity Medical Center, Defendant–Appellant
CourtOhio Court of Appeals

BRIAN L. ZIMMERMAN, 229 Third St., NW, Suite 200, Canton, OH 44702, ANDREW G. DOUGLAS, 500 S. Front St., # 1200, Columbus, OH 43215, For PlaintiffAppellee

DOUGLAS G. LEAK, W. BRADFORD LONGBRAKE, FRANK G. MAZGAJ, EMILY R. YODER, 3737 Embassy Parkway, Akron, OH 44333, MICHAEL O. FAWAZ, 450 West Fourth St., Royal Oak, MI 48067, For DefendantAppellant

JUDGES: Hon. Patricia A. Delaney, P.J., Hon. W. Scott Gwin, J., Hon. Earle J. Wise, Jr., J.


Delaney, J.

{¶ 1} DefendantAppellant DHSC, LLC dba Affinity Medical Center appeals judgments made in favor of PlaintiffAppellee Ann Wayt issued by the Stark County Court of Common Pleas.


{¶ 2} PlaintiffAppellee Ann Wayt has been a registered nurse since 1967. She began her employment with DefendantAppellant DHS, LLC dba Affinity Medical Center in 1987. Affinity Medical Center is a hospital located in Massillon, Ohio. During Wayt's employment with Affinity, she received outstanding performance evaluations. An Affinity employee nominated Wayt for a nursing award called the "CAMEOS of Caring Award," which Wayt won. Affinity featured Wayt's award in its advertising for the hospital. Before 2012, Wayt had never been disciplined for an employment infraction.

{¶ 3} In August 2012, Wayt was employed as a nurse in the Affinity orthopedic unit. Wayt's supervisors were Paula Zinsmeister, clinical manager of the orthopedic unit, and John McDonald, orthopedic and therapy services program director.

The Unionization

{¶ 4} In 2012, Wayt and several nurses employed by Affinity began efforts to unionize the registered nurses. The union organizers argued unionization was necessary to improve patient care and safety at Affinity, and to establish guidelines for staff to patient ratios. Wayt was a vocal supporter of the union and was viewed by some as a leader in the drive for unionization. Wayt's photograph appeared in a pro-union poster displayed in the hospital. Both the hospital management and employees agreed the issue of unionization was a divisive issue in the hospital. Hospital management was generally not in favor of unionization.

{¶ 5} On August 29, 2012, the Affinity registered nurses voted in favor of unionization.

The Patient

{¶ 6} On August 28, 2012, an elderly patient with dementia was admitted to the hospital from the emergency room. The patient suffered from a broken hip. The emergency room contacted Beth Varner, the housing supervisor, to coordinate the transfer of the patient from the emergency room to the orthopedic unit. Varner spoke with Wayt about the patient and Wayt felt the patient needed a sitter. A sitter is a hospital employee that sits with a patient with special needs, such as dementia. The sitter is assigned for the patient's safety and to address the patient's needs, but the sitter does not take over the duties of the unit nurse. Varner spoke with Susan Kress, director of critical care services and medical surgical services, and stated Wayt refused to take the report on the patient due to the sitter situation. On the week of August 28, 2012, Susan Kress was acting as Wayt's supervisor because Zinsmeister was on vacation. Kress did not support the unionization efforts.

{¶ 7} Kress arranged for a sitter for the patient, but another manager selected the sitters. The sitters were Rhonda Smith and Jonalee Lesjak, nurses from the cardiovascular unit. Smith and Lesjak did not agree with the need for unionization. The patient was admitted to the orthopedic unit between 9:15 a.m. and 9:30 a.m. Kress and a student nurse, Sam Burgett were present in the patient's room when the patient arrived. Kress left after 15 minutes without seeing Wayt. Smith arrived in the patient's room at approximately the same time the patient arrived. She began charting at 10:00 a.m. At about 11:00 or 11:15 a.m., Lesjak relieved Smith for a lunch break. At 12:00 p.m., Smith returned to the patient's room to relieve Lesjak. Smith went off-duty at 4:30 p.m.

{¶ 8} During the patient's stay at Affinity, the patient suffered no adverse events due to the care from Affinity.

The Investigation

{¶ 9} On August 29, 2012, Smith reported to her manager that while she was in the patient's room, she did not observe Wayt conduct an hourly rounding on the patient that included a head to toe assessment. During a head to toe assessment, the nurse looks at the patient's skin, listens to the patient's heart, lungs, and bowel sounds, and palpates their pulses, abdomen, and legs. A nurse could complete a head to toe assessment in 15 minutes. The manager reported Smith's observation to Kress, who started an investigation into Smith's allegation. Smith told Kress that at around 10:00 a.m., Smith observed Wayt speak with the patient's family. At about 11:00 or 11:15 a.m., Lesjak relieved Smith for a lunch break. At 12:00 p.m., Smith returned to the patient's room to relieve Lesjak and Smith observed Wayt administer pain medication to the patient. At 2:00 p.m., Smith requested clean linens and personnel supplies for the patient, which Wayt brought to the room. Smith went off-duty at 4:30 p.m.

{¶ 10} Kress reported Smith's allegations to John McDonald that Smith did not see Wayt conduct a head to toe assessment on the patient. On September 4, 2012, McDonald told Paula Zinsmeister there was an allegation that Smith did not see Wayt come into the patient's room to do a head to toe assessment. McDonald and Zinsmeister did not support the unionization efforts at Affinity.

{¶ 11} On September 5, 2012, Zinsmeister and McDonald told Wayt they were pulling the patient's chart to conduct an audit. The chart reflected Wayt completed a head to toe assessment on the patient on August 28, 2012 at 9:00 a.m. Zinsmeister spoke with Sam Burgett and he reported that he observed Wayt in the patient's room shortly after the patient arrived. No one had spoken to Lesjak at this stage of the investigation. Zinsmeister spoke with Angela Boyle, Human Resources Director for Affinity. On September 6, 2012, Boyle sent an email to the division human resources director stating there was an incident of falsification of a medical record by Wayt. The email read that Wayt documented she performed a head to toe assessment of the patient at 9:00 a.m., but the patient did not arrive on the floor until 9:15 a.m. and three witness stated Wayt never conducted a head to toe assessment or entered the patient's room until noon.

The September 13, 2012 Meeting

{¶ 12} Zinsmeister informed Wayt they wanted to meet with her on September 13, 2012 to go over a safety issue with the patient. The meeting was initially planned as a disciplinary proceeding, but was later changed to an investigatory meeting. Zinsmeister, McDonald, and Boyle attended the meeting representing Affinity. Also present at the meeting was Robert McKinney, a registered nurse at Affinity. He was present at the meeting as Wayt's union representative because Michelle Mohan, the national representative of the registered nurses' union could not be present. No one at the meeting told McKinney the matters discussed were confidential. Zinsmeister took notes at the meeting.

{¶ 13} At the meeting, McDonald told Wayt there were four witnesses who would report that on August 28, 2012, Wayt never entered the patient's room from the time of the patient's admission to the orthopedic unit until 12:00 p.m. when she came into the room to give the patient pain medication. Wayt did not speak at the meeting. Due to Wayt's actions in charting that she had completed a head to toe assessment without completing one, Affinity suspended Wayt due to "falsification of documentation" and "failure to comply with hospital policy." Wayt refused to sign the suspension notice but McKinney signed as the union representative.

{¶ 14} McKinney spoke to hospital employees and Michelle Mohan about what occurred during the September 13, 2012 meeting. Wayt also discussed the meeting with Mohan. On September 19, 2012, Mahon sent a letter to Boyle disputing the allegations of falsification against Wayt. Wayt provided an account of her care of the patient on August 28, 2012. Wayt stated she rounded on the patient hourly, per hospital policy. At some time between 11:00 a.m. to 1:00 p.m., Wayt came to the patient's room and saw Lesjak in the room as the sitter. Lesjak asked Wayt if she could stay in the room while she went to the restroom. Wayt agreed and completed the head to toe assessment of the patient while Lesjak was in the restroom. Wayt recorded her head to toe assessment in the patient's chart but entered the wrong time.

{¶ 15} After the September 13, 2012 meeting, Lesjak's account of August 28, 2012 was taken. At about 11:00 or 11:15 a.m., Lesjak relieved Smith for a lunch break. Between 11:00 a.m. and 12:00 p.m., Lesjak observed Wayt come into the patient's room to install an IV pump. Lesjak stated she never left the patient's room while Smith was at lunch. At 12:00 p.m., Smith returned to the patient's room to relieve Lesjak.

{¶ 16} After completing the investigation as to Wayt and the head to toe assessment, McDonald and Zinsmeister recommended that Wayt be terminated. On September 26, 2012, Affinity provided Wayt with a termination notice. After her termination, Wayt spoke with a local newspaper to give her account of the events.

The Ohio Board of Nursing Complaint

{¶ 17} After Wayt's termination, Bill Osterman, chief nursing officer, sent a complaint regarding Wayt to the Ohio Board of Nursing for the Board to determine whether to revoke or suspend Wayt's nursing license. The complaint included a supplemental information form to be completed by the employer. The supplemental information form asked the employer to answer additional questions by checking the applicable box. In question # 23, the form asked, "What...

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    ...of fact due to the context of the statement and the speaker-defamer's position within a company or organization. Wayt v. DHSC, LLC, 2017-Ohio-7734, 97 N.E.3d 903, ¶ 138 (5th Dist.), rev'd on other grounds, 155 Ohio St.3d 401, 2018-Ohio-4822, 122 N.E.3d 92, ¶ 138. In Wayt, the court consider......

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