An Ohio jury recently awarded $2 million dollars to a nurse they felt had been defamed by a hospital that reported her to the State Board of Nursing (“BON”). Here’s the catch — Ohio law actually requires hospitals to report such conduct and grants immunity to such reports made in good faith. Things got worse for the hospital when the National Labor Relations Board (“NLRB”) ruled last week that the hospital’s termination of this same nurse, and the BON report, were illegally motivated by her union activities.
Background
Ann Wayt worked as a Registered Nurse at Affinity Medical Center in Massillon, Ohio. In more than 30 years, she had never been disciplined and actually won a prestigious nursing award in 2008. In 2012, she actively and visibly was involved in a campaign to unionize the nurses at the Hospital, which resulted in a narrow victory (100-96) for the union.
The day of the election, a nurse who worked as a “sitter” with one of Wayt’s patients the previous day complained that Wayt had not relieved her on time. The Hospital investigated Wayt’s care for the patient and concluded that she had (1) falsified documentation on the patient’s chart by stating that she had performed a “head-to-toe” assessment when she had not; (2) failed to perform her hourly rounds on the patient; and (3) had posted several inaccuracies in the patient’s chart.
Despite never actually interviewing Wayt, Hospital management concluded that she should be terminated but asked their Human Resources Department to review the decision. HR responded that this was a “a weak case for termination” and asked for additional information, including Wayt’s disciplinary history and a description of how similar situations had been handled in the past. Management never responded, choosing instead to revise its description of the events in question (with several inaccuracies) and proceed to terminate Wayt for “substandard patient care and falsification of patient documentation.” Management then filed a report with the Ohio BON asserting that the patient was “not observed for an unsafe period of time.”
BON Reporting Requirements
In Ohio (like Minnesota), if a hospital believes that a nurse’s behavior would result in discipline from the state Board of Nursing, the hospital must report that nurse to the BON. By law, the hospital will not be liable for damages because of the report, unless the report is submitted in “bad faith.”
Ohio Jury and NLRB Both Find the Hospital Broke the Law
Following her termination, Wayt sued, claiming among other things that the BON report defamed her. After a trial, the jury agreed and awarded her $800,000 in compensatory damages and $750,000 in punitive damages, while also ordering the Hospital to pay her attorney’s fees.
At the same time, the Hospital was facing Unfair Labor Practice charges stemming from the union election, one such charge being that Wayt’s termination and the BON report were retaliatory due to her involvement with the union. An Administrative Law Judge (“ALJ”) and ultimately the NLRB found that the hospital’s actions were in fact discriminatory and violated the National Labor Relations Act for the following reasons:
- The timing of the Hospital’s actions relative to the union election was suspect and the Hospital could not prove that their reasons were true;
- The Hospital did not conduct “an unbiased investigation, but [rather] an inquiry . . . that was focused on getting support for the decision it had already made . . .”; and
- Even if the Hospital’s reasons had been true, the hospital had hardly ever terminated a nurse and made a report to the BON in similar circumstances, namely “a first offense that had no bearing on the patient’s health.”
The NLRB ordered the Hospital to offer the Nurse reinstatement, make her whole for any loss of earnings or benefits, compensate her “for the adverse tax consequences, if any, of receiving a lump-sum backpay award,” formally withdraw the BON Complaint against the Nurse, and reimburse the Nurse for any legal fees that she may have incurred at the BON. See Affinity Medical Center, 362 NLRB No. 78 (April 30, 2015).
Bottom Line
Although making BON reports is mandatory, Minnesota health care employers must still conduct a legitimate investigation of the matter in order to be sure that their report is in good faith and subject to the immunity that the law provides.