Ellen Simon, an attorney in Cleveland who authors the excellent blog, Ellen Simon’s Employee Rights Post, recently tried an age discrimination claim for plaintiff Gloria Parks (a phlebotomist) against Cleveland’s University Hospitals Case Medical Center.
Ms. Parks had worked for the hospital for 30 years when she was fired over a medical mistake involving herself and another much younger employee. The hospital fired Ms. Parks, but not the much younger employee.
The jury returned a verdict in favor of the plaintiff (Ms. Parks) for $450,000 for her economic loss and $450,000 for “other compensatory damages”, according to Ms. Simon’s blog article. Based on the limited information I have so far, it looks like the “other compensatory damages” was an award for emotional distress, The jury did not award punitive damages.
So the verdict totals $900,000, and Ms. Simon will file a request for attorneys’ fees‘ fees and expenses. While it is not clear from the article so far, I suspect the case was asserted for age discrimination under Ohio’s Fair Employment Practices Act (and not the federal ADEA).
Parks’ lawsuit charged that her termination stemmed from a patient identification incident in July of 2008, involving Parks and a younger co-worker in the pre-admission testing department where they both worked. The mix-up occurred when two patients with the identical name appeared at the department on the same morning to get their blood drawn. UH claimed that Parks failed to follow the proper patient identification policy, but witnesses testified that the policy was not enforced in the department and not properly followed by the employee who checked the patient in that day, pulled the wrong medical chart, and passed it off to Parks. The mistake was discovered and corrected before the patient left the department and the blood work was for both patients was properly processed without any error. Neither patient was harmed. After Parks was fired, the department changed its procedures in the department to require proof of identification at the time of check in with a driver’s license.
Parks claimed that Steve Diltz, who became her supervisor five months prior to the incident, had singled her out and treated her differently than her younger coworkers since his assignment to her department. Evidence presented at trial showed that Diltz seized on the identification incident as a means to ensure that Parks was fired, and that his decision to unjustly fire her was supported without question by University Hospitals human resources department as well as Diltz’s manager without any independent investigation. The incident resulted in a patient complaint, but the testimony of the patient revealed that it was a third employee involved with the patient — the department nurse — not Parks, who had upset the patient on the day in question. The nurse was never disciplined.
I do a lot of litigation involving medical care employees in hospitals, and there are several key facts from Ms. Parks’ case that strike me as important and recurring in this kind of litigation:
- Plaintiff alleges that a new supervisor comes on the scene and starts treating the nurse employee worse, based on some alleged discriminatory motive.
- Plaintiff alleges that the new supervisor is picking on the plaintiff and is “out to get” the plaintiff, so the supervisor is allegedly looking for some type of ammunition to use to justify firing the plaintiff.
- An actual or alleged medical mistake occurs. Sometimes an incident report is prepared, sometimes there are reports to regulatory authorities.
- Plaintiff gets fired over the medical mistake.
- Plaintiff alleges she was not at fault, someone else was at fault, or there is shared fault. Or plaintiff alleges there was no medical mistake at all.
- Plaintiff alleges that the policy or procedure relating to the medical mistake was poorly communicated, with inadequate training by the hospital, so that disciplinary action is unreasonably harsh under the circumstances. Or plaintiff alleges there was no policy or procedure at all which was violated.
- Plaintiff alleges that other employees have also violated the policy, either because of lack of information or general non-enforcement, and those other employees suffered no disciplinary action. Or plaintiff alleges that other employees handled the particular situation in the same way as plaintiff, to argue that there was no policy or procedure as the hospital alleged.
- Plaintiff alleges that the investigation was biased or incomplete or both, and that the supervisor with the alleged bias controlled the investigation and conducted it in an unreasonable manner.
- Plaintiff alleges that any review of the investigation by higher hospital officials was a superficial “rubber stamp”, lacking any real scrutiny of the validity of the investigation and disciplinary action.
- Arguably confirming the plaintiff’s contention that the hospital’s policy or procedure was poorly or inconsistently applied, the hospital later modified or corrected the procedure. Plaintiff alleges that the modification of the policy or procedure confirms that she was not at fault.
Fact patterns including some or all of these items above pop up pretty frequently in medical industry employment litigation. Ms. Simon says she is going to write a more detailed summary of the case soon, and I look forward to reading more about it.
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