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Waddell v. Grant/Riverside Medical Care Foundation

Court of Appeals of Ohio, Tenth District

April 11, 2017

Rosalyn Waddell (Kenner), Plaintiff-Appellant,
Grant/Riverside Medical Care Foundation et al., Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas No. 13CV-1273

         On brief:

          Mowery Youell & Galeano, Ltd., Merl H. Wayman, and James S. Mowery, Jr., for appellant.


          Merl H. Wayman.

         On brief:

          Baker & Hostetler LLP, David A. Whitcomb, and Lindsey D'Andrea, for appellees.


          David A. Whitcomb.


          SADLER, J.

         {¶ 1} Plaintiff-appellant, Rosalyn Waddell (Kenner), appeals from the judgment entry of the Franklin County Court of Common Pleas granting the motion for judgment notwithstanding the verdict ("JNOV") and alternative motion for new trial filed by defendants-appellees, Grant/Riverside Medical Care Foundation et al., on appellant's race discrimination claim. For the following reasons, we affirm the decision of the trial court.


         {¶ 2} Appellant is a licensed and registered senior x-ray technologist practicing CT scan procedures whom appellees employed from approximately December 1991 to May 24, 2012, the date appellees terminated appellant's employment. At the time of the termination, appellant worked alongside three other technologists-Debbie Johnson, Lori Shoemaker, and Patty Hudland-in the CT scan unit of one of appellees' imaging facilities. Appellant reported directly to Dave Taylor. Taylor reported to Dave Partridge, who in turn reported to Jason Theadore, appellees' director of imaging departments. Appellant was the only African-American employed in the CT scan unit.

         {¶ 3} As an employee with OhioHealth, appellant signed a Confidentiality Statement of Understanding that provided:

It is the responsibility of all persons granted access to confidential information to protect the confidentiality of patient and hospital information and to make use of that information only to the extent authorized and necessary to provide patient care and/or perform a proper Hospital, Medical Staff or Educational function * * * as this confidential information is available only on a Need-to-Know basis, I will not access confidential information without authorization and will do so only when required to do so.

(Confidentiality Statement of Understanding at 1.) Under OhioHealth's Human Resources Policy and Procedure, "Serious Misconduct" that warranted termination of employment included "[unauthorized access, release, or use of confidential information concerning a patient, the organization, or another associate. (i.e. HIPAA violation)" as well as "[a]buse and/or negligence of duty with a potentially serious impact on the organization * * * includ[ing] gross and/or willful disregard for safety or Red Rules." (Appellees' Ex. 2 at 4.) Furthermore, under OhioHealth's Radiology Reportable Events Policy, each technologist was under a duty to report to management when a patient received a radiology procedure that was not prescribed.

         {¶ 4} The technologists worked in pairs to conduct CT scans for patients. One technologist, the "IV person, " was responsible for interacting with the patient, administering the patient's IV, and running the "contrast injector machine." (Plaintiffs Ex. A at 1; Tr. Vol. 3 at 84.) Meanwhile, the other technologist, the "computer person, " was responsible for completing the computer scan and transferring the images to the "PACS" medical records system, consulting with both the radiologist about protocols and the doctor's office about concerns, and conducting quality assurance at the end of their duty as the computer person. (CT scan unit flow chart, Plaintiffs Ex. A at 2; Tr. Vol. 3 at 85.) Quality assurance included reviewing whether the patient's scanned images transferred to the PACS system for radiologists to review. The technologists would switch roles at lunch: the IV person from the morning would become the computer person in the afternoon and vice versa.

         {¶ 5} On the morning of Wednesday, May 16, 2012, appellant worked as the IV person while Debbie Johnson worked as the computer person. At approximately 8:30 a.m., Johnson scanned a patient prior to contrast being injected into the patient's arm. After noticing the error and without consulting a radiologist or manager, appellant injected the patient with contrast and Johnson scanned the patient a second time, subjecting the patient to another dose of radiation. Neither appellant nor Johnson reported the incident to management at that time. Rather, appellant testified that she told Johnson it was Johnson's responsibility to report the incident to management and to transmit all the images to PACS, including, as required by appellees' policies, the images scanned in error. Appellant said Johnson nodded her head in agreement. Appellant later agreed that every radiology technologist who becomes aware of an over-radiation incident had an obligation to report that event and that over-radiating a patient could be dangerous to the patient's health.

         {¶ 6} According to appellant, because Johnson previously failed to report overexposure incidents, appellant was concerned Johnson would not report the incident, but appellant was hesitant to report the incident to management herself because her performance evaluation noted co-worker complaints about working with her, and the complaints seemed to stem from appellant's previous reports of their mistakes.

         {¶ 7} When appellant was the computer person in the afternoon of May 16, she saw that all the patients' images had not yet been sent to the PACS system. Appellant left work early, at about 2:30 p.m., and discussed the incident with a former supervisor who worked at another OhioHealth facility. The former supervisor advised appellant to report the incident. At about 4:30 p.m., appellant called Taylor and asked if anyone had reported an over-radiation incident and, according to appellant, let Taylor know that all the images for a patient were not transferred to PACS. Appellant later agreed that, in response to deposition questioning about whether Taylor knew that all the images had not been transferred to PACS, she did not mention the images transfer on this initial call to Taylor and that, at some point during the call, appellant expressed concern that Johnson was going to "get off free because she is dishonest." (Tr. Vol. 4 at 129.) Taylor responded that he would discuss the incident with Theadore and would speak with appellant in the morning. Theadore assigned Partridge and Kay Holland, another imaging manager who is Caucasian, to investigate the incident.

         {¶ 8} The next day, Thursday, May 17, appellant worked in the x-ray department, rather than the CT scan unit. Appellant agreed that Taylor told her she was "removed from the situation" and "should not have had anything further to do with this case from that Thursday morning, 8:00 a.m., May 17, 2012 and on" and that she went into the PACS system anyway and accessed the patient's study. (Tr. Vol. 4 at 130.) According to appellant, she believed that Taylor meant she should have no further involvement in reporting the case and that although quality assurance is initially the responsibility of the computer person who scanned that patient, she thought it was her shared duty "for the care of the patient to follow that study until the entire exam is completed and sent to the radiologist to be read." (Tr. Vol. 3 at 99-100.) Appellant testified that appellees previously disciplined her for failing to conduct quality assurance with the PACS system for a patient. Appellant testified that she accessed the PACS system on May 17 for this patient care purpose. Appellant then agreed that when she noticed the non-contrast images had still not been sent, appellant did not inform Taylor or anyone else that the patient's study continued to be incomplete and did not attempt to find and send the images to the PACS system herself.

         {¶ 9} On the morning of Friday, May 18, appellant worked as the computer person in the CT scan unit. Appellant testified that in performing the part of her job of deleting files to free up raw data space on the computer, she accessed the patient's images on the CT workstation computer. According to appellant, she did not want to delete this particular patient's study from the system if there was a problem with it. Appellant saw that the patient's non-contrast images were still not in the file, and because the day became busy, she did not tell anyone.

         {¶ 10} That same morning, appellees interviewed Johnson, who admitted that she had not sent the images from the first scan to PACS. Johnson was immediately suspended. Partridge and Holland went to the CT workstation to try to locate the images, and after they retrieved them, Partridge asked appellant to send those images to the radiologist.

         {¶ 11} On Monday, May 21, Taylor met with appellant and asked her to write a statement of what occurred during the over-radiation incident. Later, Partridge and Holland interviewed appellant. During the interview, appellant told Partridge and Holland that she knew Johnson had not sent the images to PACS, and when asked how she knew, appellant told them she accessed the PACS medical records system on May 17. Appellant testified that she told Partridge and Holland that part of the reason she accessed the medical record on May 17 was to see if Johnson was telling the truth or lying because, at least in part, she was concerned that Johnson was going to get away with this incident. According to appellant, she also checked the patient's record in the PACS system "to see if the images were available, to see if I could send the images on this patient to be read by the doctor." (Tr. Vol. 3 at 108.) Regarding checking the patient file on May 18, appellant stated to Partridge and Holland, "that was my job that morning before I deleted any studies, to make sure everything had been completed and sent on to the radiology [sic]; and if I'm aware of anything that's not complete, I cannot delete it." (Tr. Vol. 3 at 108.) At trial, appellant agreed that it is improper to access a patient's record to determine whether a co-worker lied and agreed that improperly accessing a patient's records and/or committing a HIPAA violation is a terminable offense.

         {¶ 12} Later that day, Partridge and Holland returned and told appellant she was suspended from work pending an investigation into the incident and gave her paperwork documenting the suspension. According to the "description of behavior/situation & impact" section of the suspension paperwork:

On Wednesday 5/16/12 a patient was scanned incorrectly at aprox. 8:40 am. At that time no report was created and there was no communication to leadership. At approx. 4:40 pm. Rozalyn called Supervisor to inform him of incident. At that time Rozalyn was told that she was removed from the situation and the Jason Theadore would take care [sic] the investigation from moving forward. Rozalyn opening [sic] admitted to calling a peer from the organization and discussing the case that day. On 5/17/12, Rozalyn came into work and looked in the legal imaging medical record (PACS) to see if images that were not sent on original date had been sent, they had not been. Rozalyn stated "I wanted to see if Debbie did the right thing and sent the images, proving that she was not a liar". Again, on 5/19/12[sic] Rozalyn stated "she went to the CT unit to see if the images were present". Rozalyn entered into a patient medical record for no reason on 2 separate occasions, thus creating a third HIPPA [sic] violation in three days.

(May 21, 2012 Performance Management Record at 1.)

         {¶ 13} On May 24, 2012, appellees terminated appellant's employment. On the termination notice, the "description of behavior/situation & impact" states:

On 5-16-12 at 8:35 am Rosalyn Kenner assisted in the care of a patient who received a non contrast CT scan instead of a contrast enhanced CT scan. Rosalyn waited approximated 8 hours to report this incident to her supervisor. This delay in reporting was a violation of Radiology Reportable Events to Ohio Department of Heath policy, A400.003. The delayed reporting compromised the accuracy of the patient record and put the accuracy of the patient's diagnosis at risk. During this delay she admittedly discussed the incident with Ohiohealth staff outside of her care site, including naming staff members involved. The next day at 7:56 am, Rosalyn accessed this patient's examination in the OH PACS system. This access was not related to the care of this patient. She stated to her manager and a management witness that she did this "To understand if her coworker was a liar." On 5-18-12, Rosalyn admittedly viewed the patient's images on the CT scanner to determine if the images were still available to be sent to the PACS system. This was before being asked to send them later that day, around 12:30 pm, by her manager. This access was not related to the care of this patient. The manager's request to access the file was to ensure all images were sent to the PACS system and reported by the radiologists. Her actions regarding this incident are negligence of duty with a potentially serious impact on the organization including gross and/or willful disregard for safety. This is considered serious misconduct by the OhioHealth Policy Performance Management, 702.100.

(May 24, 2012 Performance Management Record at 1.) On the same day, appellees fired Johnson. Appellees hired an African-American woman as a technologist.

         {¶ 14} On February 1, 2013, appellant filed a complaint alleging that appellees discriminated against her based on race by terminating her employment in violation of R.C. 4112.02 and 4112.09. To sustain the claim, appellant proffered Shoemaker as a similarly situated employee who was treated better by appellees.

         {¶ 15} Shoemaker, who is Caucasian, is a technician in the CT scan unit who reported to the same supervisors as appellant. In April 2012, Shoemaker scanned a patient but when she checked the images, she did not see contrast. It is unclear whether Shoemaker was in the role of the computer person or the IV person at the time. She checked the patient for signs of an "extravasation, " a condition where the contrast injected into the patient's arm escapes the vein and fills the arm. (Tr. Vol. [2] at 264.) She found no signs of extravasation but immediately called the radiologist. The radiologist checked the patient and the scans and also found no signs of extravasation. At the direction of the radiologist, Shoemaker took a single additional picture and then the radiologist told Shoemaker to call the patient the next day to see how he was doing. Shoemaker saved the patient's demographic sheet, which contained his name, address, telephone number, insurance information, date of birth, and partial social security number, put the sheet on her desk, and used that information to contact the patient the following day. The patient reported symptoms of extravasation. At that point, Shoemaker filled out paperwork to notify management of the extravasation incident. Appellees did not discipline Shoemaker for this incident. Taylor testified that he was aware that Shoemaker would have to access confidential patient information in order to contact the patient at home. Nothing in the record shows that appellees were aware that Shoemaker retained a patient's contact demographic sheet on her desk.

         {¶ 16} The trial court denied appellees' motion for summary judgment on the race discrimination claim, and the case proceeded to a two-week jury trial. During trial, after appellant closed her case-in-chief, appellees moved for a directed verdict as to liability. The trial court denied the motion. Appellees presented its defense, asserting that although the description of behavior stated in the termination notice includes multiple infractions, such as her failure to report, it ultimately terminated appellant's employment based on her access of confidential patient records for purposes other than patient care. Appellees additionally presented evidence that, around the summer of 2012, it investigated and eventually fired a Caucasian technologist employed in the CT scan unit for accessing confidential information in PACS.

         {¶ 17} After the close of all evidence, appellees moved for a directed verdict regarding appellant's request for punitive damages; the trial court overruled the motion and conducted a separate trial on that issue. The jury returned a verdict for appellant in the amount of $230, 304 in compensatory damages and $10, 000 in punitive damages. The jury answered jury instructions finding that appellant proved that she and Shoemaker "dealt with the same supervisors, were subject to the same standards, and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it, " that Shoemaker was treated better than appellant, and that OhioHealth did not articulate a legitimate, nondiscriminatory reason for appellant's termination. (Jury Instructions Question 1.) In ...

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