Hulsmeyer v. Hospice of Southwest Ohio, Inc. (Slip Opinion), 142 Ohio St. 3d 236

Background

Patricia Hulsmeyer, a Hospice of Southwest Ohio nurse/team manager, reported suspected bruising/abuse of a Brookdale residential-care resident to Brookdale staff and the resident’s family after being told she had an obligation to notify them.
Hospice’s policy required reporting suspected abuse to the CEO/designee; Hospice terminated Hulsmeyer for allegedly failing to notify Hospice first and for photos being taken/shared.
Hulsmeyer sued for retaliatory discharge under R.C. 3721.24 and for common-law wrongful discharge in violation of public policy; defendants moved to dismiss the statutory claim as insufficient because Hulsmeyer did not report to the Ohio Director of Health.
The trial court dismissed the statutory claim; the First District reversed, holding R.C. 3721.24 does not require reporting to the Director of Health.
The Ohio Supreme Court accepted discretionary review and certified the issue: whether protection under R.C. 3721.24 requires reporting (or intent to report) suspected abuse to the Director of Health.
The Court held R.C. 3721.24 does not require that the report (or intent to report) be made to the Director of Health to state a retaliatory-discharge claim and remanded to reinstate Hulsmeyer’s statutory claim; it declined to decide her cross-appeal for a wrongful-discharge remedy.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether R.C. 3721.24 requires reporting (or intent to report) suspected abuse to the Ohio Director of Health to state a retaliatory-discharge claim	Hulsmeyer: statute’s plain language has no recipient limitation; protection applies regardless of whom the report was made to	Defendants: read R.C. 3721.24 in pari materia with R.C. 3721.22 (which requires reports to Director of Health) so statutory protection requires a report to the Director	Court: No. R.C. 3721.24’s plain language protects employees who report or intend to report suspected abuse without requiring the report be made to the Director of Health
Whether the court should recognize a common-law wrongful-discharge claim if statutory protection were limited to reports to the Director of Health	Hulsmeyer (cross-appeal): if statutory remedy is narrow, wrongful-discharge claim should be available when reporting to others	Defendants: statutory remedy (R.C. 3721.24) suffices; other statutes (e.g., whistleblower law) may apply	Court: Declined to decide because it found statutory claim cognizable; Justice Pfeifer concurred that a common-law claim should be allowed; Justice French would have recognized such a claim when report is not to the Director
Whether R.C. 3721.24 is ambiguous and should be construed with R.C. 3721.22	Hulsmeyer: statute is unambiguous; no need to read in R.C. 3721.22 requirements	Defendants: silence in 3721.24 leaves ambiguity; must construe statutes in pari materia to require reporting to Director	Court: R.C. 3721.24 is not ambiguous; differing wording between 3721.22 and 3721.24 is intentional and should not be judicially altered
Remedy and remand instructions	Hulsmeyer seeks reinstatement of statutory claim and further proceedings	Defendants sought dismissal of statutory claim	Court: Affirmed court of appeals, reinstated Hulsmeyer’s R.C. 3721.24 claim and remanded for further proceedings; made no merits determination

Key Cases Cited

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988) (standard for accepting allegations on motion to dismiss)
Sheet Metal Workers’ Internatl. Assn. v. Gene’s Refrig., Heating & Air Conditioning, Inc., 122 Ohio St.3d 248 (2009) (statutory ambiguity merits in pari materia construction)
State v. Hairston, 101 Ohio St.3d 308 (2004) (statutory-construction goal is to ascertain legislative intent)
Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153 (2011) (interpretive approach: examine statutory language and purpose)
Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122 (2008) (court must give effect to the words used; do not add or delete statutory language)