Cleveland jury awards $900,000 against hospital in age discrimination case

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).

Here are the keys facts from Ms. Simon’s arti­cle, which in turn is based on an arti­cle in 19ActionNews.com (there is also an arti­cle by the Cleve­land Plain Deal­er about the verdict):

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:

  1. Plain­tiff alleges that a new super­vi­sor comes on the scene and starts treat­ing the nurse employ­ee worse, based on some alleged dis­crim­i­na­to­ry motive.
  2. 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.
  3. An actu­al or alleged med­ical mis­take occurs. Some­times an inci­dent report is pre­pared, some­times there are reports to reg­u­la­to­ry authorities.
  4. Plain­tiff gets fired over the med­ical mistake.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

Drew M. Capuder
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