Petras v. 3G Operating Co.

[Cite as Petras v. 3G Operating Co., 2021-Ohio-473.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

CHERYL A. PETRAS, : OPINION

Plaintiff-Appellant, :

CASE NO. 2020-L-084

- vs - :

3G OPERATING COMPANY, LLC d.b.a. :

WICKLIFFE COUNTRY PLACE,

:

Defendant-Appellee.

:

Civil Appeal from the Lake County Court of Common Pleas, Case No. 2019 CV 001239.

Judgment: Affirmed.

Frank Consolo, Consolo Law Firm Co., LPA, 627 West St. Clair Avenue, Cleveland, OH

44113 (For Plaintiff-Appellant).

Katie Lynn Zorc, Reminger Co., LPA, 101 West Prospect Avenue, Suite 1400,

Cleveland, OH 44115 (For Defendant-Appellee).

MATT LYNCH, J.

{¶1} Plaintiff-appellant, Cheryl A. Petras, appeals from the decision of the Lake

County Court of Common Pleas, granting summary judgment in favor of defendant-

appellee, 3G Operating Company, d.b.a. Wickliffe Country Place (“Wickliffe”). For the

following reasons, we affirm the decision of the lower court.

{¶2} On August 2, 2019, Petras filed a Complaint against Wickliffe. The

Complaint alleged that she was employed by Wickliffe, a nursing home facility, as a Shift

Supervisor Registered Nurse and was wrongfully discharged for her conduct relating to

the care of two patients, Jane Doe and Janet Roe. The Complaint alleged that firing her

for taking actions as a registered nurse engaged in the practice of nursing violates “clear

Ohio public policy that registered nurses not be interfered with, or prevented from,

engaging in the practice of nursing and providing nursing care to individuals as set forth

in R.C. Chapter 4723 and OAC Chapter 4723.”

{¶3} Wickliffe filed an Answer on September 6, 2019.

{¶4} On March 13, 2020, Wickliffe filed a Motion for Summary Judgment.

Wickliffe argued that Petras was properly terminated as an at-will employee and that the

public policy exception to the at-will employment doctrine did not apply. It contended that

the public policy cited in the Complaint, i.e., the policy that “registered nurses not be

interfered with,” is too general to satisfy the clarity element of a wrongful discharge for

public policy claim. It further argued that the jeopardy element was not satisfied because

there are alternative means of promoting public policy through federal and state regulation

of nursing homes and there was a legitimate business justification for Petras’ termination

due to her failure to follow Wickliffe’s policies and procedures.

{¶5} Pursuant to the deposition testimony, Petras worked as a second shift

Registered Nurse supervisor at Wickliffe Country Place, from April 2018 through January

8, 2019, when she was terminated. Petras testified that, in this position, she essentially

“ran the show” on the night shift, making rounds and assisting shift nurses. Her supervisor

was unit manager Danielle Lewis, who worked during the day. Petras testified that if she

needed assistance or there was a change in condition of a patient, she would contact

Lewis.

{¶6} Around December 2018, Wickliffe began utilizing a telemedicine program

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called TripleCare, which was used to consult with TripleCare doctors virtually after normal

business hours. Pursuant to the TripleCare policy adopted by Wickliffe, nurses were

generally required to utilize this program, rather than contact the patient’s personal

physician, during the hours of 6 p.m. to 7 a.m. on weekdays as well as during all weekend

hours. Petras attended a training meeting on TripleCare prior to its implementation and

received a handout outlining its policies for use, which stated the foregoing times and a

list of instances when TripleCare physicians should not be called, including for routine

labs, chronic pain, and skin tears, as well as reasons they should be called, including

fever, GI distress, and other symptoms of illness.

{¶7} On January 2, 2019, Petras was working with a chronically ill patient, Jane

Doe. Petras had collected blood cultures from her central line pursuant to the request of

Doe’s primary doctor, Dr. Balaiji. When Petras received the positive results from the lab,

indicating an infected central line, she called Dr. Balaiji directly, who said to get Doe to

the hospital immediately. She testified that although this occurred “after hours,” i.e.,

during the time of TripleCare use, she did not feel it appropriate to use TripleCare to

discuss a lab result and knew the patient needed treatment at a hospital. Petras believed

she did not contact Lewis until after Doe was sent to the hospital; Lewis confirmed she

was notified by a text message from Petras after the patient was sent out.

{¶8} Donna Fording, an LPN at Wickliffe, had assisted with training for

TripleCare. She testified that she spoke with Petras on the day following the January 2

incident and discussed that Petras had not used the telemedicine program properly and

reminded her she needed to notify the unit manager before calling the primary doctor.

{¶9} On January 4, 2019, Petras became aware that a patient, Janet Roe, had

not been taking her medication, eating, or drinking, and had loose stool and green vomit.

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She called Roe’s physician, Dr. Mehta, who stated that Roe needed to go to the hospital.

Petras believed she told Lewis about the circumstances after she made arrangements to

send Roe to the hospital. Lewis testified that she received the following message on

January 4: “Dr. Mehta wants to send [Janet Roe] to ER, not drinking or drinking all day

(sic), had green emesis on day shift, fever 101.2,” and Lewis responded “okay.”

{¶10} On January 7, 2019, Petras was called into the office of JoAnne Ginley, the

director of nursing. According to Petras, Ginley told her she would be suspended pending

investigation due to “violating protocol” and referenced sending patients out of the facility,

but was not more specific. Petras was subsequently notified via phone call that she was

fired. Petras did not believe she violated protocol and, in her affidavit, attested to taking

the actions she did because Doe and Roe were in urgent, life-threatening situations

requiring admission to a hospital.

{¶11} Ginley testified that Petras was terminated for “not following the procedure

for contacting TripleCare after hours and not contacting the unit manager” as to Doe and

not contacting the unit manager as to Roe. She testified that Petras had been present at

the TripleCare training and that nurses had been informed in the past that they should

contact their unit manager before sending a patient out of the facility. Lewis testified she

had been told about the policy of contacting the unit manager at her orientation and Ginley

stated that there was periodic training at Wickliffe on policy to notify the unit manager

before calling a doctor. No written policy regarding contacting the unit manager was

established. In an affidavit, Petras denied the existence of a policy that required her to

contact the unit manager if there was a medical problem with a resident under her care.

{¶12} Petras filed a Memorandum in Opposition on May 1, 2020, arguing all

elements were met for a claim of wrongful discharge in violation of public policy. She

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contended that multiple sections of the Revised Code demonstrate the public policy that

registered nurses should not be interfered with while providing care to their patients in

accordance with nursing standards. She further contended that the reason for her

termination was to keep the return to hospital rates low, which improperly places profits

above medical care.

{¶13} Wickliffe filed a Reply in Support on May 7, 2020.

{¶14} On June 23, 2020, the trial court issued a Judgment Entry granting

summary judgment in favor of Wickliffe. The court held that “the standards and

requirements for practice as a registered nurse” set forth in R.C. Chapter 4723 and Ohio

Adm.Code Chapter 4723 “do not demonstrate a clear public policy that an employer

cannot terminate a registered nurse based upon a decision he or she makes in the

practice of nursing” or that a nurse cannot be “interfered with or prevented from engaging

in the practice of nursing and providing nursing care to individuals.” It determined that

these sections do not demonstrate a public policy against terminating a nurse for failing

to follow the chain of command or instructions to utilize telemedicine. It found no

exception to Petras’ status as an at-will employee and that Wickliffe was entitled to

judgment as a matter of law.

{¶15} Petras timely appeals and raises the following assignment of error:

{¶16} “The trial court committed prejudicial error in granting the motion of

summary judgment of the Appellee, as a matter of law, based on its opinion that Petras

failed to establish the clarity element of her public policy wrongful discharge claim.”

{¶17} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated, (2)

“the moving party is entitled to judgment as a matter of law,” and (3) “it appears from the

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evidence * * * that reasonable minds can come to but one conclusion and that conclusion

is adverse to the party against whom the motion for summary judgment is made, that

party being entitled to have the evidence * * * construed most strongly in the party’s favor.”

{¶18} A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate court

to conduct an independent review of the evidence before the trial court without deference

to the trial court’s decision.” Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-

Ohio-5439, ¶ 27.

{¶19} “As a general proposition, an employment-at-will relationship can be

terminated by either side for any reason at any time.” Guardo v. University Hosp., Geauga

Med. Center, 11th Dist. Geauga No. 2014-G-3178, 2015-Ohio-1492, ¶ 20. However, “an

exception to the employment-at-will doctrine is justified where an employer has

discharged his employee in contravention of a ‘sufficiently clear public policy.’” Painter v.

Graley, 70 Ohio St.3d 377, 384, 639 N.E.2d 51 (1994).

{¶20} The elements necessary to demonstrate a claim for wrongful discharge in

violation of public policy are:

{¶21} “‘1. That clear public policy existed and was manifested in a state or federal

constitution, statute or administrative regulation, or in the common law (the clarity

element).

{¶22} “‘2. That dismissing employees under circumstances like those involved in

the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element).

{¶23} “‘3. The plaintiff’s dismissal was motivated by conduct related to

the public policy (the causation element).

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{¶24} “‘4. The employer lacked overriding legitimate business justification for the

dismissal (the overriding justification element).’” (Emphasis sic.) (Citation omitted.) Id. at

384, fn. 8; Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d

825, ¶ 12-16.

{¶25} “The clarity and jeopardy elements of the Painter test are issues of law for

the court’s determination; the causation and overriding-justification elements are

questions for determination by the fact-finder.” Dohme at ¶ 17.

{¶26} Here, the trial court found that the first element, the clarity element, was not

met and dismissed based on that element alone.

{¶27} The existence of a public policy is derived from specific sources, including

state statutes, administrative regulations, and the common law. Id. at ¶ 18. “[A] public

policy sufficient to overcome the presumption in favor of employment at will is not limited

to instances in which the statute expressly forbids termination, but may be discerned from

legislation generally, or from other sources of law.” Jacobs v. Highland Cty. Bd of

Commrs., 2014-Ohio-4194, 20 N.E.3d 300, ¶16 (4th Dist.), citing Painter, 70 Ohio St.3d

at 384, 639 N.E.2d 51. The court in Painter explained that, while a sufficiently clear public

policy exists where the General Assembly adopted a “specific statute forbidding an

employer from discharging or disciplining an employee,” other exceptions may be

recognized where the public policy “could be deemed to be ‘of equally serious import as

the violation of a statute.’” Id. at 382, citing Greeley v. Miami Valley Maintenance Contrs.,

Inc., 49 Ohio St.3d 228, 235, 551 N.E.2d 981 (1990). The public policy exception to the

at-will doctrine has been “narrowly applied.” McGlothen v. Fairborn, 2019-Ohio-141, 127

N.E.3d 527, ¶ 18 (2d Dist.).

{¶28} Petras cites several portions of the Ohio Revised Code and Ohio

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Administrative Code in support of her contention that there is a clear public policy that

registered nurses cannot be, in her characterization, “interfered with, or prevented from,

engaging in the practice of nursing and providing nursing care to individuals.” We will

briefly review the sections she cites in support of this asserted policy.

{¶29} Chapter 4723 of the Ohio Revised Code is entitled “Nurses” and includes

sections which address, inter alia, the Board of Nursing, licensing, tasks to be performed

by nurses, and discipline. R.C. 4723.01 defines a registered nurse as one who holds a

license that “authorizes the practice of nursing as a registered nurse,” which is “providing

to individuals and groups nursing care requiring specialized knowledge, judgment, and

skill derived from the principles of biological, physical, behavioral, social, and nursing

sciences.” R.C. 4723.01(A) and (B). Nursing care includes, in pertinent part, “[i]dentifying

patterns of human responses to * * * health problems amenable to a nursing regimen; * *

* [e]xecuting a nursing regimen through * * * nursing actions; * * * [a]ssessing health status

for the purpose of providing nursing care; * * * [and] administering medications,

treatments, and executing regimens” as authorized. R.C. 4723.01(B)(1)-(3) and (5).

{¶30} R.C. 4723.07 sets forth the powers of the Board of Nursing to establish

standards for nursing programs, licensure, and continuing education rules for the practice

of nursing, precautions to be taken by nurses, quality assurance standards for advanced

practice registered nurses, and allows it to adopt other rules as necessary. R.C. 4723.28

provides the circumstances under which sanctions may be imposed upon a nurse,

including denying, revoking, suspending, or placing restrictions on a nursing license.

{¶31} Ohio Adm.Code 4723-4-03 describes the standards for competent practice

of registered nursing, requiring that nurses maintain knowledge of duties of safe nursing

practice and demonstrate competence and accountability in all areas of practice including

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consistent performance of nursing and referral and consultation when a complication

arises. Ohio Adm.Code 4723-4-03(A)-(C). It allows a nurse to provide care beyond “basic

nursing preparation” when the nurse has obtained education and demonstrated skills as

to that type of care. Ohio Adm.Code 4723-4-03(D). It provides that registered nurses

shall, “in a timely manner, * * * [i]mplement any order for a patient unless the registered

nurse believes or should have reason to believe the order is” inaccurate, not properly

authorized, not current or valid, harmful, or contraindicated by other documented

information. Ohio Adm.Code 4723-4-03(E)(1). Similarly, the nurse shall “[c]larify any

order” for a patient the nurse believes meets the foregoing criteria. Ohio Adm.Code 4723-

4-03(E)(2). Finally, it states that a registered nurse “shall use acceptable standards of

safe nursing care as a basis for any observation, advice, instruction, teaching, or

evaluation and shall communicate information which is consistent with acceptable

standards of safe nursing care.” Ohio Adm.Code 4723-4-03(J).

{¶32} Ohio Adm.Code 4723-4-06, entitled “Standards of nursing practice

promoting patient safety,” provides that a nurse shall report and document nursing

assessments, observations, and care provided, shall report errors in or deviations for a

current valid order to the appropriate practitioner, and shall “implement measures to

promote a safe environment for each patient.” Ohio Adm.Code 4723-4-06(E), (F) and

(H).

{¶33} Ohio Adm.Code 4723-4-07(A) sets forth standards for applying the nursing

process, which include accurately and timely collecting and documenting data,

establishing nursing diagnoses and reporting the patient’s health to the health care team,

developing a nursing plan of care, implementing a nursing regimen and evaluating a

response to the nursing intervention.

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{¶34} The statutes and administrative code sections cited by Petras do not

specifically discuss interference with or prevention of providing nursing care. They

primarily address the regulation of the nursing practice and licensure, and what tasks and

treatments nurses are required or permitted to perform as a licensed nurse. These

generally demonstrate an intent to ensure patients receive proper treatment and that

unlicensed and unqualified nurses do not provide care rather than a policy against

“interference” with nurses. See Freie v. Ohio Bd. of Nursing, 10th Dist. Franklin No. 90AP-

336, 1990 WL 126288, *2 (Aug. 30, 1990) (“[w]e must assume that the statutes controlling

the nursing profession are meant to enforce the public policy of insuring that only the

competent and trustworthy provide nursing services in Ohio”).

{¶35} We are unaware of, and Petras does not cite to, any case law or statutory

interpretation or history that supports her understanding of the statute and its application

to create the claimed public policy. An asserted public policy should be clear and

supported by citations to specific authority. See Dohme, 130 Ohio St.3d 168, 2011-Ohio-

4609, 956 N.E.2d 825, at ¶ 21 (the plaintiff must cite a “specific statement of law in support

of his claim” that an applicable public policy existed); Dean v. Consol. Equities Realty #3,

L.L.C., 182 Ohio App.3d 725, 2009-Ohio-2480, 914 N.E.2d 1109, ¶ 12 (1st Dist.) (“the

public policy against the alleged conduct of [the defendant] is not manifested clearly

enough to warrant abrogating the at-will-employment doctrine”). While Petras cites to

many specific code sections, they simply do not provide support for her conclusion as to

what the applicable public policy is.

{¶36} In particular, Petras highlights the applicability of Ohio Adm.Code 4723-4-

03(E), emphasizing that it states a registered nurse shall implement an order unless the

nurse believes it is harmful to the patient or contraindicated by other documented

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information and shall clarify an order in such circumstances. Again, this appears to be a

direction included for the purpose of protecting the patient, allowing the nurse to provide

a check against a mistaken or errant order for medical treatment, rather than the policy

of preventing “interference” with conducting nursing duties. Further, while this provision

ensures that a nurse does not implement an order that is dangerous to the patient, at

issue here was not Petras’ conduct in carrying out “any order for a patient” but whether

she could be fired for failing to follow her employer’s policies.

{¶37} Petras also emphasizes that she was acting in accordance with R.C

4723.01(B)(5) by administering treatments authorized by Dr. Balaiji in regard to Jane Doe.

This does not demonstrate the alleged public policy regarding “interference” with her

duties; instead, it demonstrates only that she was not acting to provide treatment

unauthorized by the Revised Code. Further, it does not demonstrate any public policy

prohibiting her employer from creating additional rules to follow when providing such

treatments.

{¶38} Even if we were to determine that the authority cited did support a public

policy “that registered nurses not be interfered with or prevented from engaging in the

practice of nursing and providing nursing care” as Petras contends, we do not hold that

such policy is implicated simply because an employer created certain policies and

procedures that a nurse must follow in carrying out her duties as an employee. In other

words, requiring a nurse to consult with her superiors on action to be taken regarding a

patient and to utilize a certain procedure to discuss patient conditions with qualified

physicians does not interfere with her ability to give a patient care. It merely sets forth

procedures that must be followed in providing that care, neither of which are particularly

onerous. Where the public policy cited does not specifically apply to the facts of the case,

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the plaintiff fails to meet the clarity element. Strodtbeck v. Lake Hosp. Sys., Inc., 11th

Dist. Lake No. 2010-L-053, 2011-Ohio-2327, ¶ 31.

{¶39} Since Petras failed to meet the clarity element and failure to meet any

element results in the inapplicability of the public policy exception, the trial court properly

found the wrongful termination lawsuit must be dismissed on summary judgment. No

further consideration of the remaining elements is required. Guardo, 2015-Ohio-1492, at

¶ 48 (“[g]iven the outcome of our analysis as to [the] first element, it is not necessary to

address whether appellant’s summary judgment submission was sufficient to satisfy the

‘jeopardy’ and ‘overriding justification’ elements of her wrongful discharge claim”).

{¶40} The sole assignment of error is without merit.

{¶41} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, granting summary judgment in favor of Wickliffe, is affirmed. Costs to

be taxed against appellant.

MARY JANE TRAPP, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

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