At issue is whether a nurse who reported suspected abuse to her employers is protected by state antiretaliation laws when her employer then sought to remove her, or whether that law only applies to employees who report suspected abuse to governmental authorities.
Patricia Hulsmeyer is a registered nurse who reported suspected abuse of an older patient being cared for at the facility where she worked. She spoke to the patient’s family after having filed her report with her employer. Sometime after reporting the incident, Hulsmeyer had a planned leave of absence for medical reasons and upon her return was called into her director’s office, where she says she was berated for having spoken to the patient’s family. Two days later, Hulsmeyer was told her employment would be terminated.
Hulsmeyer sued. A trial court ruled that Ohio’s whistleblower protections did not protect her because she had not reported the suspected abuse or neglect to the state Department of Health. AARP filed a friend-of-the-court brief in her appeal.
AARP’s brief, filed by attorneys with AARP Foundation Litigation, argues that under a variety of precedents in Ohio courts, Hulsmeyer’s actions were protected activity as defined by the state antiretaliation statute. The brief parses the history of the statute, its intent as well as its clear language, and reviews the cases that have interpreted that law. The brief also points out that it may be even more important to report suspected abuse to employers than to state authorities in order to remediate abuses immediately. “The message the trial court’s opinion sends to Ohio’s nurses and other health professionals is that they will not be protected from retaliation if they report suspected abuse or neglect to any of these persons or entities who, unlike the [State] Director of Health, are in a position to immediately investigate and take corrective action. That would truly be an absurd result,” argues the brief.
What’s at Stake
Residents in long term care facilities are among the most vulnerable as a result of some or all of the following: diminished capabilities to care for themselves, depending on others for their day-to-day decision making, and their isolation from family and friends. The history of this industry is replete with examples of abuse and neglect, leading to the enactment of laws on federal and state levels enhancing protection for residents. Governmental oversight authorities have historically been underfunded and overworked, and it is important that people dependent upon long term care facilities have all available tools to protect themselves, including the statutory protections for those who report abuse and neglect.
Hulsmeyer v. Hospice of Southwest Ohio is before the Court of Appeals for the First Appellate District Court for Hamilton County in Ohio.