Employees who report abuse/neglect are protected from employment retaliation, rules SCO

The Ohio Supreme Court ruled last Tuesday that an Ohio law provides protection from employment retaliation for employees who report suspicions of abuse and neglect of residents of long term care facilities to entities other than the Ohio director of health. The case before the Court involved registered nurse team manager Patricia Hulsmeyer, who was terminated from her position with Hospice of Southwest Ohio in 2011. Hulsmeyer supervised other hospice nurses and cared for patients. In October 2011 at a patient-care meeting, one of Hulsmeyer's supervisees reported that she had seen bruises on a patient at Brookdale Senior Living and that she believed Brookdale staff had caused them. An aide, also under her supervision, indicated that she had taken pictures of the bruises and forwarded them to Hulsmeyer's phone.

A staff doctor and Hospice nurse in the meeting indicated that Hulsmeyer was required to report this to Brookdale and the patient's family. Hulsmeyer contacted Brookdale to relay this information and then spoke with Isha Abdullah, the chief clinical officer of Hospice, to report the suspected abuse or neglect. She then informed the patient's family. Abdullah disputes that Hulsmeyer contacted her at this point, claiming that she did not learn about the allegations until someone from Brookdale contacted her. At a meeting with the family in November, the aide's cell phone was passed around to show the photos of the patient's bruising.

Hulsmeyer was terminated from her position with Hospice after this. Hospice's stated reasons for firing Hulsmeyer were that she allowed photos of the patient to be taken without permission from someone with a power of attorney, she did not follow a Hospice policy requiring her to tell Hospice of suspicions of abuse or neglect before informing the family, and she shared the photos of the patient at a meeting with staff and family before informing Hospice of the suspected abuse or neglect.

Hulsmeyer filed an action seeking damages for retaliatory discharge under O.R.C. 3721.24 and a common law wrongful discharge claim. The defendants claimed that O.R.C. 3721.24 only protects employees who have reported suspicions of abuse or neglect to the Ohio director of health, and that because Hulsmeyer did not do so, she has no statutory claim for retaliation. The trial court agreed with Hospice and also dismissed the common law claims, stating that the statute provides adequate protection for employees. The First District Court of Appeals reversed the trial court, finding that O.R.C. 3721.24 does not require that an employee report the abuse to the Ohio director of health in order to be protected from retaliatory action.

In 6-1 decision, with an opinion penned by Justice Sharon Kennedy, the Ohio Supreme Court upheld the decision of the First District, finding that, "The plain language of R.C. 3721.24 protects employees... from retaliation for reporting... suspected abuse or neglect of residents of long-term care facilities or residential care facilities and does not require that the report be made to the director of health."

In reaching its decision, the Court analyzed the statute in tandem with O.R.C. 3721.22, which explicitly requires licensed health care professionals to report these suspicions to the director of health, and provides immunity from civil or criminal liability for individuals who do so. O.R.C. 3721.24 provides employment protection to employees who report suspected abuse or neglect, but does not specify to whom they should report it. The Court found that the language of the statute was unambiguous and no other requirement or limitation should be added by judicial fiat. The Court sent the case back to the trial court for hearing on the merits of the statutory claims. It did not address the issue of Hulsmeyer's common law claims.

Justice Pfeifer concurred with the majority, but also wrote that Hulsmeyer should be able to pursue her common law claims.  Justice French dissented, arguing that the statute is ambiguous about who an employee may report to, opening the door to protect employees who tell almost anyone about their suspicions. She asserted that since O.R.C. 3721.22 provides that certain professionals must report to the Ohio director of health, O.R.C. 3721.24 should be interpreted with that same limitation in order to rectify the ambiguity.

For more information about the case, see this article from Court News Ohio.