from the Franklin County Court of Common Pleas No. 13CV-1273
Youell & Galeano, Ltd., Merl H. Wayman, and James S.
Mowery, Jr., for appellant.
& Hostetler LLP, David A. Whitcomb, and Lindsey
D'Andrea, for appellees.
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.
FACTS AND PROCEDURAL HISTORY
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
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
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"
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
(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.  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 ...