Hulsmeyer v. Hospice of Southwest Ohio, Inc.
998 N.E.2d 517
Ohio Ct. App.2013Background
- Patricia Hulsmeyer, a registered nurse and team manager for Hospice of Southwest Ohio, supervised Hospice care for residents at a Brookdale long-term care facility.
- At an October 19, 2011 staff meeting, employees showed bruising on a Hospice patient and discussed suspected Brookdale abuse/neglect; Hulsmeyer reported her suspicions to Brookdale’s Director of Nursing, her Hospice supervisor, and the patient’s daughter, and submitted a written report the next day.
- Brookdale terminated its Director of Nursing after the family complained; Brookdale management then pressured Hospice and criticized Hulsmeyer for notifying the family and allowing photographs.
- Hospice terminated Hulsmeyer on November 30, 2011, citing failure to timely notify management and specifically identifying her contact with the patient’s daughter as a reason.
- Hulsmeyer sued Hospice, its CEO Killian, and Brookdale for retaliation under R.C. 3721.24, wrongful discharge in violation of public policy, and tortious interference (the latter later dismissed). The trial court dismissed the retaliation and public-policy claims; Hulsmeyer appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 3721.24 protects employees who report suspected nursing-home abuse to persons other than the Ohio Director of Health | Hulsmeyer: R.C. 3721.24’s plain language protects employees who "make a report" or indicate intent to report suspected abuse, without limiting the report’s recipient | Hospice/Brookdale/Killian: R.C. 3721.24 must be read with R.C. 3721.22–.23; protection applies only to reports to the Director of Health | Court: Statute’s plain language is unambiguous and protects reports (or intent) generally; need not be to the Director of Health — reversed dismissal of retaliation claim |
| Whether Hulsmeyer adequately alleged she was an "employee or another individual used by" Brookdale to state a claim against Brookdale | Hulsmeyer: Alleged facts show Brookdale used Hospice nurses for patient care, consultation, oversight, and meetings at Brookdale facility | Brookdale: Hulsmeyer was not "used by" Brookdale and thus not covered by R.C. 3721.24 as to Brookdale | Court: Allegations are sufficient at pleading stage to show Hulsmeyer was "used by" Brookdale — claim survives dismissal |
| Whether wrongful discharge in violation of public policy survives where R.C. 3721.24 provides a statutory remedy | Hulsmeyer: Sought common-law public-policy claim based on reporting abuse | Hospice: R.C. 3721.24 provides adequate remedy; allowing common-law claim would not be necessary | Court: R.C. 3721.24 affords an adequate remedy protecting the same public policy; public-policy claim dismissed (affirmed) |
| Appellate jurisdiction over dismissal labeled "without prejudice" | Hulsmeyer: Trial dismissal was on legal grounds making repleading futile; appeal proper | Brookdale: Dismissal without prejudice is not a final, appealable order | Court: Dismissal on legal grounds that cannot be cured is final and appealable; appellate jurisdiction proper |
Key Cases Cited
- Collins v. Rizkana, 73 Ohio St.3d 65 (1995) (elements of wrongful-discharge-in-violation-of-public-policy claim)
- Wiles v. Medina Auto Parts, 96 Ohio St.3d 241 (2002) (discusses adequacy of statutory remedies vs. common-law public-policy claims)
- State v. Hairston, 101 Ohio St.3d 308 (2004) (plain statutory language governs when unambiguous)
- Taniguchi, 74 Ohio St.3d 154 (1995) (courts must give effect to the words actually used in a statute)
- Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79 (2004) (standard of review for Civ.R. 12(B)(6) dismissals)
- Spencer v. Freight Handlers, 131 Ohio St.3d 316 (2012) (statutory interpretation begins with the statute's text)