To be eligible to claim retaliation for reporting, or showing an intent to report, suspected abuse or neglect of a resident of a long-term care or residential facility, an employee or other person who performs work or services for the facility is not required to make that report, or show the intent to make such a report, to the director of the state health department, the Ohio Supreme Court held today.

The court’s 6-1 decision allows Patricia Hulsmeyer, who oversaw the nursing care of terminally ill patients in a southwestern Ohio residential care facility, to pursue her statutory claim that she was fired for reporting suspected abuse or neglect of a patient to the facility and the patient’s children.

In an opinion written by Justice Sharon L. Kennedy, the court affirmed the First District Court of Appeals’ ruling, but makes no judgment on the merits of Hulsmeyer’s retaliatory discharge claim.

Hulsmeyer worked for Hospice of Southwest Ohio, which provided nursing care for residents of a facility owned by Brookdale Senior Living. She was hired as a registered nurse case manager and promoted to team manager.

R.C. 3721.22 states that licensed health professionals must report suspected abuse or neglect to the Ohio director of health and that others may also report such suspicions to the director. In contrast, R.C. 3721.24’s purpose is to protect people from being retaliated against for making this type of report.

R.C. 3721.22 states that licensed health professionals must report suspected abuse or neglect to the Ohio director of health and that others may also report such suspicions to the director. In contrast, R.C. 3721.24’s purpose is to protect people from being retaliated against for making this type of report.

During a patient care meeting in October 2011, a nurse for Hospice said she noticed bruising on an 81-year-old female resident. The nurse thought the bruises were caused by Brookdale’s staff, and an aide disclosed that she had taken pictures of the injuries with her cell phone.

A Hospice nurse and a staff doctor told Hulsmeyer she had to notify Brookdale and the woman’s family about the suspected abuse or neglect. She called Brookdale and reported the information to the nursing director. Hulsmeyer said she also told the chief clinical officer of Hospice about the suspicions. However, the officer disputes this claim. At a meeting the next month, the aide’s photos were shared with those attending, including the resident’s family.

Hospice fired Hulsmeyer on November 30. Her termination letter stated she was let go because she allowed photos of the resident to be taken without proper permission, she did not follow Hospice’s policy requiring her to notify Hospice before anyone else about the suspected abuse or neglect, and she improperly shared the photos at the meeting before telling Hospice about the suspicions.

In handwritten comments on the letter, Hulsmeyer noted that she was given no guidance from her superiors for handling claims of suspected abuse or neglect, she reported her concerns to Hospice’s chief clinical officer the day she became aware of the issue, other staff told her she was also obligated to inform Brookdale and the family, and she did not approve taking photos of the patient’s bruises.

Hulsmeyer filed a lawsuit alleging she had a claim for retaliatory discharge based on R.C. 3721.24 and a claim for wrongful discharge based on common law.

The trial court dismissed her claims, and she appealed. The First District affirmed in part and reversed in part. The appeals court agreed with the trial court that Hulsmeyer had no case based on common law, but it ruled that she did have a claim based on the statute.

Hospice, its chief executive officer, and Brookdale appealed to the Ohio Supreme Court. Hulsmeyer filed a cross-appeal. The court also certified a conflict among appellate courts on this issue, and it consolidated the cases for consideration.

In 1990, the General Assembly passed legislation that enacted R.C. 3721.22 and R.C. 3721.24. Justice Kennedy explained that R.C. 3721.22 discusses the obligations for reporting suspected abuse and neglect of residents of long-term care or residential care facilities and provides immunity from civil suits and criminal charges for making a report. The statute states that licensed health professionals must report suspected abuse or neglect to the Ohio director of health and that others may also report such suspicions to the director. The director of health then investigates allegations and reports findings of abuse or neglect to law enforcement.

In contrast, Justice Kennedy continued, R.C. 3721.24’s purpose is to protect people from being retaliated against for making this type of report. The different reporting requirements in each statute reflect the distinct purposes of the two statutes, she reasoned.

“R.C. 3721.22(A) requires licensed health professionals to report abuse ‘to the director of health,’” she wrote. “That same requirement of reporting to the director of health is not found in R.C. 3721.24. Because the General Assembly enacted R.C. 3721.22 and 3721.24 in the same bill, we presume that the absence of any requirement in R.C. 3721.24 that a report, or intent to report, suspected abuse or neglect must be made to the director of health was intentional. If the General Assembly had intended to afford protection to only those employees who reported, or indicated an intention to report, suspected abuse or neglect to the director of health, it could have done so by inserting the words ‘to the director of health’ after the word ‘report’ in R.C. 3721.24(A), or by incorporating the requirement from R.C. 3721.22. It did neither. And we will not add those words by judicial fiat.

“[W]e … hold that an employee or other person used to perform work or services who reports or indicates an intention to report suspected abuse or neglect of a long-term-care-facility or residential-care-facility resident is not required to report or indicate an intent to report the suspected abuse or neglect to the Ohio director of health in order to state a claim for retaliatory discharge under R.C. 3721.24,” Justice Kennedy concluded.

Because Hulsmeyer has a claim for retaliatory discharge based on R.C. 3721.24, the court did not consider her cross-appeal asserting that she can also assert wrongful discharge under common law.

The majority opinion was joined by Chief Justice Maureen O’Connor, Justices Judith Ann Lanzinger and William M. O’Neill, and Judge Stephen A. Yarbrough of the Sixth District Court of Appeals. Judge Yarbrough replaced Justice Terrence O’Donnell, who recused himself from this case.

Justice Paul E. Pfeifer concurred with the majority and also concluded that Hulsmeyer should be permitted to pursue a common-law claim for wrongful discharge for public policy reasons.

Justice Judith L. French dissented. A statutory cause of action based on R.C. 3721.24 occurs only after an employee or other person who performs work or services reports or intends to report to the director of health any suspected abuse or neglect, she wrote. In her view, R.C. 3721.24 is ambiguous because it is silent about who should receive these reports. However, the Revised Code names no other recipient for a report of abuse or neglect besides the director of health, so R.C. 3721.24 must be interpreted to require that the person report, or intend to report, suspicions to the director of health, she concluded.

“Under the majority’s reading, an employee’s statutory entitlement to protection from retaliation would extend far beyond the employee’s reporting of suspected abuse to obvious and appropriate recipients, like the employee’s supervisor or the resident’s family,” she wrote. “For example, an employee would be entitled to protection upon casually relating suspicions of abuse or neglect to the employee’s spouse, a neighbor, a news station or an online message board. … I cannot agree that the General Assembly intended such a broad application.”

However, when an employee reports or intends to make a report to another appropriate party instead of the director of health, then the employee may assert a claim for wrongful discharge violating public policy based on common law, Justice French reasoned. She would have sent the case back to the trial court to consider Hulsmeyer’s common-law claim.

2013-1644 and 2013-1766. Hulsmeyer v. Hospice of Southwest Ohio, Inc., Slip Opinion No. 2014-Ohio-5511.

View oral argument video of this case.

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