Lemay v. Univ. of Toledo Med. Ctr. , 2018 Ohio 1311 ( 2018 )

[Cite as Lemay v. Univ. of Toledo Med. Ctr., 2018-Ohio-1311.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Melanie Lemay et al., :
Plaintiffs-Appellants, :
v. : No. 17AP-640
(Ct. of Cl. No. 2016-00860)
University of Toledo Medical Center, :
(REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on April 5, 2018
On brief: Vesper Williams, for appellants. Argued: Vesper
Williams.
On brief: Michael DeWine, Attorney General, Randall W.
Knutti, Lee Ann Rabe, and Howard H. Harcha, IV, for
appellee. Argued: Howard H. Harcha, IV.
APPEAL from the Court of Claims of Ohio
TYACK, J.
{¶ 1} Plaintiff-appellant, Melanie Lemay, appeals from the August 4, 2017
judgment of the Court of Claims of Ohio granting summary judgment in favor of defendant-
appellee, University of Toledo Medical Center ("UTMC"). For the reasons that follow, we
affirm in part and reverse in part the judgment of the Court of Claims.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} This case involves Lemay's termination from UTMC on September 12, 2012,
following the accidental disposal of a kidney meant for transplant. On August 10, 2012, a
medical team was in the midst of a kidney transplant between a brother and a sister.
Doctors had removed the brother's donor kidney and placed it in a bin for cooling. Lemay
No. 17AP-640 2
was a circulating nurse assigned to relieve Judith Moore in the operating room while Moore
took her lunch break.
{¶ 3} After Moore returned from her break, she did not ask Lemay for a status
report, and Lemay did not volunteer one because she believed that it was Moore's
responsibility to come to Lemay to ask for an update. Lemay then left the operating room
for a brief period to retrieve a certain type of suture. When Lemay returned, she saw Moore
cleaning off the sterile prep table used to clean the donor kidney. Lemay resumed charting
on the computer. While Lemay was charting, Moore removed items from the operating
room and accidentally disposed of the donor kidney.
{¶ 4} Lemay and Moore were placed on administrative leave pending an
investigation of the incident. Moore resigned. The UTMC live donor program was
temporarily suspended.
{¶ 5} After a pre-disciplinary hearing on September 11, 2012, the hearing officer
recommended termination of employment for Lemay. UTMC's Chancellor and Executive
Vice President for Health Affairs terminated Lemay's employment on September 12, 2012.
The letter of termination stated in part:
It has been determined that you have violated the Ohio
Revised Code § 124.34(A) by failing to provide good behavior
and efficient service. Specifically, you exhibited gross neglect
of your duties as an OR Staff Nurse.
(Sept. 12, 2012 Letter at Ex. No. 5 to Aff. of Lisa Simpson.)
{¶ 6} Lemay filed a grievance with her union on September 24, 2012. Lemay
informed her union representative that she would not attend a hearing without her attorney
being present, and apparently a hearing took place without her presence because she
asserts that she never received notice, the opportunity to refute the allegations, or the
opportunity to present witnesses. After a hearing on August 26, 2013, the grievance was
denied and the termination was upheld.
{¶ 7} Lemay filed suit alleging wrongful termination and defamation. In her
wrongful termination claim, Lemay alleged that she was terminated without just cause, and
that UTMC did not follow its own policy when they terminated her. She also claimed that
the reasons for the termination were false and were based on false statements. The
No. 17AP-640 3
defamation claim was based on a series of articles that appeared in the Toledo Blade about
the incident. Lemay claimed that the articles contained defamatory information provided
to the Toledo Blade by UTMC agents. Lemay's husband also filed a claim for loss of
consortium.
{¶ 8} UTMC filed a motion for summary judgment claiming that the Court of
Claims lacked subject-matter jurisdiction to enforce or interpret the collective bargaining
agreement. UTMC also argued that Lemay had failed to identify any false statements; that
the comments she claimed were defamatory were actually constitutionally protected
opinions, or that they were absolutely or qualifiedly privileged. UTMC also claimed that
because the accidental disposal of a kidney during a transplant procedure was a matter of
public concern, Lemay was required to prove actual injury or actual malice to prevail on her
defamation claim.
{¶ 9} The Court of Claims granted the motion for summary judgment on August 4,
2017. The court determined that there was no genuine issue of material fact that Lemay's
employment was governed by a collective bargaining agreement that contained a provision
for binding arbitration. The court then concluded that it had no jurisdiction to enforce the
agreement or to interpret it and that it lacked jurisdiction over the wrongful termination
claim.
{¶ 10} With respect to the defamation claim, the Court of Claims found that Lemay
had failed to identify the specific statements and information presented at the pre-
disciplinary hearing and to the Toledo Blade that were false. The court further determined
that any allegedly false statements made at the pre-disciplinary hearing, the hearing
officer's report, and the termination letter were absolutely privileged as part of a quasi-
judicial proceeding. The Court of Claims then looked at the issue of qualified privilege. It
found no genuine issue of material fact that the information given to the Toledo Blade was
made in good faith; was limited in scope to the investigation about the kidney disposal; and
was for the purpose of providing information to the public about a situation in the
community that was of compelling interest because a viable kidney was disposed of as
medical waste during a live donor procedure. The court found that Lemay had failed to
identify any particular statements published by the Toledo Blade that were false or were
No. 17AP-640 4
not covered under qualified privilege. The Court of Claims further found that Lemay failed
to establish actual malice or special damages.
{¶ 11} Lemay filed a timely notice of appeal from the decision of the Court of Claims.
II. ASSIGNMENTS OF ERROR
{¶ 12} Lemay has provided a single, uninterrupted assignment of error. To aid in
understanding, we have supplied numbers and separated Lemay's various assertions:
[I.] Appellant states that the Court of Claims abused its
discretion by making findings of fact as stated in the Courts
JUDGMENT ENTRY and DECISION (hereinafter referred as
"JE") of issues that are in dispute by the parties. Those facts
found are opinions in dispute and not based on the evidence
presented and not facts proven. Appellant states that the trial
court abused its discretion by finding at page one of the JE
that " . . . Ms Lemay also failed to log into the computer
system" when the facts presented show that Ms Lemay tried
to log in but the computer would not let her and that this had
been an ongoing problem;
[II.] and on page two of the JE that " . . . Ms Lemay's
employment with UTMC was governed by the CBA with
UTMC." when the facts presented show that the CAB was not
in effect, was not signed and not a valid agreement controlling
Ms Lemay's employment and providing union representation;
[III.] and on page 6 of the JE that "The Court believes that
verification in this manner is improper because Ms Lemay
cannot personally swear to the legal arguments made by her
counsel when the complaint was verified by her Affidavit on
page 15 of PLAINTIFF'S VERIFIED MEMORANDUM IN
OPPOSITION TO THE UNIVERSITY OF TOLEDO'S
MOTION FOR SUMMARY JUDGMENT ("memorandum")
and by Ms Lemay's EXHIBIT AFFIDAVIT also attached
thereto;
[IV.] and on page 8 of the JE ". . . it appears that despite any
allegations of the CBA's expiration, Ms. Lemay still received
representation from her union." when the facts presented
show that the Union only presented the grievance Ms. Lemay
prepared and then did nothing further to advance her claims,
the union is not an attorney that could represent her and that
she requested to have an attorney represent her that was not
allowed;
No. 17AP-640 5
[V.] and on page 9 of the JE ". . . Plaintiffs have failed to
identify the specific statements and information presented at
the hearing (what hearing) and to the Toledo Blade which
were false." when Ms. Lemay attached to her memorandum at
Exhibit A, her termination letter stating that she ". . . failed to
exhibit good behavior and efficient service and specifically
exhibit gross neglect of duties as an OR staff nurse." which is
an opinion and not facts and are denied by Ms. Lemay through
out her Memorandum and in her Exhibit Affidavit attached to
her memorandum and by the statements made to the Toledo
Blade by UTMC agents as stated in the four articles attached
to the Memorandum at Exhibit C when the totality of the
articles as read are false and inflammatory toward M. Lemay
and are opinions and not facts proven at a hearing with Ms.
Lemay represented by an attorney;
[VI.] and that the Court reasoned that Ms. Lemay was a
member of a bargaining unit represented by a union and that
she initially filed a grievance after her termination and that
Ms. Lemay eventually abandoned her grievance prior to
arbitration. However these facts are in dispute and Plaintiff
states that they are not true.
[VII.] Further, on page 8 of the JE the Court states that ". . .
this Court does not have jurisdiction over Lemay's wrongful
termination claim" and then granting Defendant's motion for
summary judgment when it could have dismissed for lack of
jurisdiction.
Ms. Lemay asks that this Court review all the pleading rather
than repeating all that was stated therein again.
(Sic passim.)
III. STANDARD OF REVIEW
{¶ 13} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the
following circumstances: (1) no genuine issue of material fact remains to be litigated, (2)
the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence
most strongly in favor of the nonmoving party, reasonable minds can come to but one
conclusion, that conclusion being adverse to the nonmoving party. Harless v. Willis Day
Warehousing Co., 54 Ohio St. 2d 64, 66 (1978). "When seeking summary judgment on
grounds that the non-moving party cannot prove its case, the moving party bears the initial
No. 17AP-640 6
burden of informing the trial court of the basis for the motion and identifying those portions
of the record that demonstrate the absence of a genuine issue of material fact on an essential
element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32,
2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996). Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial. Dresher at 293. The nonmoving party may not rest
on the mere allegations and denials in the pleadings but, instead, must point to or submit
some evidentiary material that shows a genuine dispute over the material facts exists.
Henkle v. Henkle, 75 Ohio App. 3d 732, 735 (12th Dist.1991).
{¶ 14} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an appellate
court reviews a trial court's disposition of a summary judgment motion, it applies the same
standard as the trial court and conducts an independent review, without deference to the
trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One
Columbus, N.A., 83 Ohio App. 3d 103, 107 (10th Dist.1992).
IV. ANALYSIS
{¶ 15} For ease of discussion, we elect to address some assignments of error out of
order and to group the wrongful termination arguments together. Assignments of error
one, two, four, six, and seven are all related to the wrongful termination claim.
V. COLLECTIVE BARGAINING AGREEMENT AND JURISDICTION
{¶ 16} In her second assignment of error, Lemay asserts that a genuine issue of
material fact exists as to whether her employment was governed by a collective bargaining
agreement. UTMC claims that Lemay's employment was governed by a public collective
bargaining agreement, and Lemay contends that the collective bargaining agreement had
lapsed, was no longer in effect, had not been signed, and was not a valid agreement.
{¶ 17} Attached to UTMC's motion for summary judgment is a copy of the collective
bargaining agreement between the University of Toledo and Lemay's union, Local No. 2415
and Ohio Council No. 8 American Federation of State, County and Municipal Employees
AFL-CIO. The cover page states the contract is effective "7/1/2009 - 6/30/2012." (Aff. Of
Lisa Simpson at Ex. No. 1.) The signature page is unsigned and undated but contains the
No. 17AP-640 7
notation "Signatures On File." Id. at 58. A signed copy of a contract extension between the
parties was also attached to UTMC's motion for summary judgment and extended the
existing provisions of the CBA through June 30, 2013. (Aff. of Lisa Simpson at Ex. No. 2.)
The extension covered the time period of the alleged conduct that led to Lemay's
termination. In addition, Lemay filed a grievance under the collective bargaining
agreement after she was placed on administrative leave and terminated.
{¶ 18} Based on the unrefuted evidence, we can find no error in the determination
that Lemay's employment with UTMC was governed by the collective bargaining
agreement. The second assignment of error is overruled.
{¶ 19} In her fourth and sixth assignments of error, Lemay contends that the union
failed to properly advance her grievance, that she was denied the opportunity to have her
lawyer represent her during the grievance process, and that she did not abandon her
grievance. Having found Lemay's employment to be governed by a collective bargaining
agreement, we must consider whether the Court of Claims has subject-matter jurisdiction
over her wrongful termination claim.
{¶ 20} R.C. 4117.09(B)(1) requires a public employees collective bargaining
agreement to contain specific language restricting where a party to a collective bargaining
agreement may bring suit. That provision provides:
The agreement shall contain a provision that:
(1) Provides for a grievance procedure which may culminate
with final and binding arbitration of unresolved grievances,
and disputed interpretations of agreements, and which is
valid and enforceable under its terms when entered into in
accordance with this chapter. No publication thereof is
required to make it effective. A party to the agreement may
bring suits for violation of agreements or the enforcement of
an award by an arbitrator in the court of common pleas of any
county wherein a party resides or transacts business.
{¶ 21} Thus, the statute requires the collective bargaining agreement to contain a
two-step procedure: a grievance procedure with arbitration first, and ultimately, the right
to file suit in the common pleas court. R.C. 4117.09 grants exclusive jurisdiction to the
courts of common pleas over actions governing a collective bargaining agreement. Moore
v. Youngstown State Univ., 63 Ohio App. 3d 238 (10th Dist.1989).
No. 17AP-640 8
{¶ 22} The collective bargaining agreement provided to the Court of Claims in
conjunction with the motion for summary judgment contains the provision required by
R.C. 4117.09(B)(1) and provides for final and binding arbitration. Thus, any claims Lemay
has concerning the union's alleged lack of representation cannot be brought in the Court of
Claims. The Court of Claims lacks subject-matter jurisdiction over her claims of alleged
violations of the collective bargaining agreement.
{¶ 23} With respect to Lemay's alleged wrongful termination, R.C. 4117.10(A)
provides, in pertinent part, that a collective bargaining agreement between a public
employer and the bargaining unit "governs the wages, hours, and terms and conditions of
public employment covered by the agreement." That section further provides that "[i]f the
agreement provides for a final and binding arbitration of grievances, public employers,
employees, and employee organizations are subject solely to that grievance procedure."
{¶ 24} "R.C. 4117.10(A) recognizes that arbitration provides the exclusive remedy for
violations of an employee's employment rights." Gudin v. W. Reserve Psychiatric Hosp.,
10th Dist. No. 00AP-912 (June 14, 2001). "Under R.C. 4117.10(A), if an agreement provides
for final and binding arbitration as an exclusive remedy, the agreement prevails."
Thompson v. Dept. of Mental Retardation & Dev. Disabilities, 5th Dist. No. 09CA00041,
2009-Ohio-6558, ¶ 15.
{¶ 25} The collective bargaining agreement contained a provision for final and
binding arbitration as an exclusive remedy. Lemay's wrongful termination claim is based
on allegations that UTMC lacked just cause to terminate her employment. Lemay's
employment was governed by a collective bargaining agreement and the Court of Claims
lacks jurisdiction to enforce such an agreement. Her claim cannot be brought in the Court
of Claims because the wrongful termination claim concerns the terms and conditions of her
employment.
{¶ 26} Therefore, the fourth and sixth assignments of error must be overruled
because the Court of Claims lacked subject-matter jurisdiction over the wrongful
termination claim.
{¶ 27} In her seventh assignment of error, Lemay argues that the Court of Claims
erred in granting summary judgment with respect to the wrongful termination claim
instead of dismissing the claim for lack of jurisdiction. We agree. Because the Court of
No. 17AP-640 9
Claims lacked subject-matter jurisdiction over the claim, it could not grant judgment in
favor of UTMC, and instead, the claim must be dismissed. The seventh assignment of error
is sustained, and we shall remand the matter for the Court of Claims to dismiss the claim.
{¶ 28} In her first assignment of error, Lemay appears to argue that a genuine issue
of material fact exists concerning her alleged failure to login to the computer system when
she took over for Nurse Moore who went on a lunch break. Lemay contends that she tried
to login to the computer system, but the computer would not allow her to do so, and this
had been an ongoing problem.
{¶ 29} While there may be a factual dispute over Lemay's alleged failure to login to
the computer system, it is not a material factual dispute because this issue is one that
concerns the conditions of Lemay's employment and is governed by the collective
bargaining agreement. The Court of Claims lacks jurisdiction over this claim.
{¶ 30} The first assignment of error is overruled.
{¶ 31} In sum, the Court of Claims lacked subject-matter jurisdiction over the
wrongful termination claim, and must dismiss the claim.
VI. EVIDENCE CONSIDERED BY THE COURT
{¶ 32} In her third assignment of error, Lemay appears to be arguing that the Court
of Claims erred in finding that Lemay attempted to personally swear to and verify the legal
arguments made by her counsel in the memorandum in opposition to the motion for
summary judgment. She also appears to be arguing that the Court of Claims improperly
refused to consider her evidence that she submitted in opposition to the motion for
summary judgment. (See Oct. 10, 2017 Lemay Brief at 3-4.)
{¶ 33} The Court of Claims determined that Lemay's memorandum in opposition to
the motion for summary judgment contained unauthenticated materials that did not
conform to the dictates of Civ.R. 56(C). Civ.R. 56(C) provides, in pertinent part, that:
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated in
this rule.
No. 17AP-640 10
{¶ 34} Nevertheless, in the interests of justice, the Court of Claims considered all of
Lemay's evidence in formulating its decision. (Aug. 4, 2017 Decision at 7.) The third
assignment of error is overruled.
VII. DEFAMATION CLAIM
{¶ 35} In her fifth assignment of error, Lemay takes issue with the Court of Claims'
determination that she failed to identify the specific statements and information presented
at the pre-disciplinary hearing and to the Toledo Blade that were false. Lemay contends
that she did identify specific statements that were false, namely the termination letter and
statements made by UTMC agents in the four articles published by the Toledo Blade.
{¶ 36} The termination letter was the culmination of a disciplinary process that
began when Lemay was placed on administrative leave after the incident. Lemay then
participated in a pre-disciplinary hearing before a hearing officer pursuant to the collective
bargaining agreement where she was present and represented by Randy Desposito,
AFSCME Local 2415 President, Mary Villegas, Local 2415 Chief Steward, and Mr. Steve
Kowalik, AFSCME Ohio Council 8. (Aff. of Lisa Simpson at Ex. No. 3; UTMC Mot. for
Summary Jgmt.) The hearing officer took testimony and admitted exhibits at the hearing.
Lemay testified at the hearing. The hearing officer issued a six-page report and
recommendation, finding that the evidence presented substantiated the allegations against
Lemay and recommending termination. The report and recommendation was sent to Dr.
Jeffery Gold, Chancellor and EVP - Health Affairs Appointing Authority, who then issued
the letter of termination on September 12, 2012.
{¶ 37} UTMC argued before the Court of Claims and on appeal that the pre-
disciplinary hearing was a quasi-judicial proceeding, and, as a result, the hearing officer's
report and recommendation and Dr. Gold's letter of termination were absolutely privileged
against defamation claims because they were part of and reasonably related to a quasi-
judicial proceeding.
{¶ 38} "[A] statement in a judicial or quasi-judicial proceeding is absolutely
privileged and may not form the basis for a defamation action as long as the allegedly
defamatory statement is reasonably related to the proceedings." Savoy v. Univ. of Akron,
10th Dist. No. 13AP-696, 2014-Ohio-3043, ¶ 19; Doe v. Mt. Vernon City Sch. Dist. Bd. of
No. 17AP-640 11
Edn., S.D.Ohio No. 2:08-cv-575 (Apr. 6, 2010), citing Hecht v. Levin, 66 Ohio St. 3d 458,
460 (1993), citing Surace v. Wuliger, 25 Ohio St. 3d 229 (1986), syllabus.
{¶ 39} In determining whether a proceeding is quasi-judicial, the Supreme Court of
Ohio has indicated the most common test is whether the function under consideration
involves the exercise of discretion and involves notice and the right to a hearing. M.J. Kelley
Co. v. Cleveland, 32 Ohio St. 2d 150, 153 (1972); TBC Westlake v. Hamilton Cty. Bd. of
Revision, 81 Ohio St. 3d 58, 62 (1998). The Supreme Court has further indicated that quasi-
judicial proceedings require notice, hearing, and the opportunity for introduction of
evidence. Union Title Co. v. State Bd. of Edn., 51 Ohio St. 3d 189, 191 (1990). "When there
is no requirement for notice, hearing, or an opportunity to present evidence, the
proceedings are not quasi-judicial." State ex rel. Mun. Constr. Equip. Operators' Labor
Council v. Cleveland, 141 Ohio St. 3d 113, 2014-Ohio-4364, ¶ 36, citing M.J. Kelley Co., at
paragraph two of the syllabus ("proceedings of administrative officers and agencies are not
quasi-judicial where there is no requirement for notice, hearing, and the opportunity for
introduction of evidence."). Elec. Classroom of Tomorrow v. Ohio State Bd. of Edn., 10th
Dist. No. 17AP-510, 2018-Ohio-716, ¶ 20.
{¶ 40} Here, Lemay participated in a hearing in accordance with her collective
bargaining agreement that culminated in her termination by Dr. Gold. In Elec. Classroom
of Tomorrow, the State Board of Education made a final determination after considering a
report and recommendation made by a hearing officer designated by the board. This court
determined that the board of education proceedings including the final vote and
determination were quasi-judicial in nature. The same logic applies here to the disciplinary
proceedings against Lemay. Lemay has not presented any evidence to dispute that the
letter was not reasonably related to her disciplinary proceeding. Therefore, the termination
letter noting the concurrence with the hearing officer's report is absolutely privileged.
{¶ 41} With respect to the Toledo Blade articles, exhibit C attached to Lemay's
memorandum in opposition to the University of Toledo's motion for summary judgment
contains copies of the four Toledo Blade articles that Lemay claims contain defamatory
statements made by agents of UTMC.
{¶ 42} The first article is dated August 28, 2012 and is headed "3rd suspended in
kidney error." We can find no statements in that article attributable to agents of UTMC
No. 17AP-640 12
that reference Lemay, and Lemay has not set forth what specifically in that article she
alleges is false.
{¶ 43} The second article is dated August 31, 2012, and is headed "Doctor loses
director title after botched transplant." With respect to Lemay the article states: "Three
UTMC employees have been suspended with pay for their involvement in a surgery this
month that went awry when a viable kidney was thrown away into a pool of other medical
waste instead of being transplanted into the donor's sister. * * * Two nurses involved in the
surgery, Melanie Lemay, a full-time employee, and Judith Moore, a part-time employee,
also have been suspended with pay pending the results of a multiagency investigation."
{¶ 44} Again, we can detect nothing false in the statements that reference Lemay,
and Lemay has not stated what specifically in that article is false and attributable to an agent
of UTMC.
{¶ 45} The third article is undated in the copy before us, but is headed "Fault found
earlier with UTMC transplant program." The article discusses problems with the live
kidney donor program over the past decade. The article states that: "Additionally, two
people involved in the Aug. 10 transplant attempt at the hospital in which a kidney was
thrown away faced disciplinary action in the past, the Blade has learned." The article also
stated:
Ms. Lemay's personnel file with the university shows several
disciplinary actions over the past decade. She received a
written or oral warning Feb. 17, 2010, after she was
"inappropriate to all staff and borderline harassing to some
staff" seven times between Jan. 22, 2010 and Feb. 4, 2010.
"Statements were that you were ranting, hysterical, yelling,
extremely upset, crying/crying heavily/crying uncontrollably,
irate, talking very loudly and agitated," university records
said.
She last was on paid administrative leave in September, 2006,
for an unspecified action.
On Jan. 17, 2002, she signed an agreement to avoid a three-
day suspension for making repeated demeaning and
slanderous statements about management, as well as placing
a harassing telephone call to a lead nurse.
No. 17AP-640 13
{¶ 46} The article identifies the information on which it rests as Lemay's personnel
file. Lemay has not produced any evidence that the information in her personnel file is
false.
{¶ 47} The fourth article is dated September 27, 2012 and is headed, "UTMC review
finds nurse failed to follow procedures in botched kidney transplant." The article states in
pertinent part:
On Monday, UTMC said it had fired Melanie Lemay, a 30-year
employee and full-time registered nurse who was the 'RN
circulator' in the operating room at the time of the incident.
The article quoted UTMC President Lloyd Jacobs as saying:
The two nurses who are no longer employed by the hospital
failed to follow just such procedures * * *.
We did not terminate them or allow them to retire in lieu of
termination because they made a mistake, Dr. Jacobs said.
We terminated them because they violated policy.
The article quotes from the pre-disciplinary report that:
She neglected her duty, Mr. Klep wrote, because she did not
update Ms. Moore when she returned.
From the vantage point of Ms. Lemay in the [operating room]
suite, she could have not helped but notice that Nurse Moore
was removing items prior to the closing of the patient, Mr.
Klep said.
As circulating nurse, it was Ms. Lemay's duty to stop or halt
Ms. Moore from taking items out of the O.R.
{¶ 48} The article then quoted Dr. Martin Levy, a Texas transplant surgeon hired by
UTMC to review the kidney transplant program. The article states:
Dr. Levy, in his report, did not single out Ms. Lemay, but said
he was "baffled that no other team member saw [Ms. Moore]
dismantle the slush machine and remove the contents from
the room."
{¶ 49} The quotation from the pre-disciplinary report is absolutely privileged as
discussed above. Additionally, Lemay concedes that the statements she alleges are
No. 17AP-640 14
defamatory are opinions rather than facts. She states that the "totality of the articles as read
are false and inflammatory towards M. Lemay and are opinions and not facts proven at a
hearing with Ms. Lemay represented by an attorney." (Lemay Brief at 5.)
{¶ 50} Expressions of opinion are immune from liability under the Ohio
Constitution as a valid exercise of freedom of the press. Vail v. Plain-Dealer Publishing
Co., 72 Ohio St. 3d 279, 280 (1995). The Ohio Constitution's separate and independent
protection for opinions is not limited in application to allegedly defamatory statements
made by media defendants, but also applies to non-media defendants. Wampler v.
Higgins, 93 Ohio St. 3d 111 (2001), syllabus. Lemay has conceded that the statement by the
university president is one of opinion, and as discussed previously, the pre-disciplinary
report is absolutely privileged as part of a quasi-judicial proceeding.
{¶ 51} Lemay has failed to identify specific false statements in some of the articles,
and the statements she does allege are defamatory statements made by agents of UTMC are
either constitutionally protected opinions or privileged as part of quasi-judicial
proceedings. The fifth assignment of error is overruled.
VIII. CONCLUSION
{¶ 52} Based on the foregoing, assignments of error one, two, three, four, five, and
six are overruled. Assignment of error seven is sustained. The judgment of the Court of
Claims of Ohio is sustained in part and reversed in part and remanded for further
proceedings in accordance with law consistent with this decision.
Judgment affirmed in part, reversed in part;
case remanded.
KLATT and SADLER JJ., concur.
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