EXECUTIVE SUMMARY
A nurse sued a hospital for putting her on sick leave in response to her comments about being suicidal and concerns expressed by colleagues. The hospital kept her out of work for 13 months.
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An appeals court sided with the hospital.
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The nurse’s lawyer says the hospital overreacted.
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The hospital’s lawyer claimed that there was reason to doubt the nurse’s ability to work.
When do an employee’s personal troubles threaten patient safety and justify limiting work duties? A certified registered nurse anesthetist (CRNA) recently sued a hospital after it put her on sick leave and demanded a psychiatrist approve her return to work, which was prompted by her statements suggesting suicidal thoughts and the concerns voiced by her coworkers.
The case went to an appeals court after initially being dismissed and, in the process, raised questions about how hospitals can protect patient safety without treating an employee unfairly. Peggy J. Barnum, CRNA, sued Ohio State University Medical Center (OSUMC) for putting her on sick leave and demanding that she first secure a fit-for-duty recommendation from a psychiatrist, and then sign a release letting the hospital talk to the psychiatrist, before it would agree to reinstate her. Hospital officials claimed that she had expressed suicidal thoughts at work and was so distracted that she could no longer care for patients safely. Barnum’s lawsuit accused the hospital of retaliation and of violating various First Amendment and disability-related rights. An appeals court recently sided with the hospital and affirmed a lower court’s dismissal of her claims.
Barnum was out of work for the next 13 months, says her lawyer Daniel H. Klos, JD, of Columbus, OH. He says the dispute began when Barnum was overheard by another CRNA saying something to the effect of, “Maybe I’d be better off if I wasn’t here. Maybe I should just put a gun to my head. Maybe I should just not be here.” Barnum was having marriage difficulties and other personal problems at the time. An anesthesiologist also reported concerns to administration and said he and several other surgeons and anesthesiologists thought Barnum was unable to concentrate on patients. During one surgery, the surgeon had to ask Barnum at least twice to raise a patient’s table. When she finally replied, the anesthesiologist claimed, Barnum said, “I’m worthless. What good does it do or what difference does it make? Why should I even be here? Maybe I should do everybody a favor and not be around.” The head CRNA and other CRNAs also reported their concerns.
Hospital administrators instructed Barnum to report to the emergency department (ED) for a suicide risk evaluation, which she did. A physician there released her and said she was not a threat to herself but that he could not determine whether she was fit for duty, Klos says. Her work history and reviews at the hospital were exemplary, Klos says. Nevertheless, the hospital put Barnum on sick leave and demanded a psychiatrist report saying she was fit for duty. Hospital officials also required Barnum to give her permission for them to talk to the psychiatrist and for the psychiatrist to release information about her. She produced the fit-for-duty report four months later, but the hospital still refused to reinstate her for another nine months, her lawyer says.
The Americans with Disabilities Act (ADA) requires an employer to provide reasonable accommodation to an employee with a disability, but Klos says OSUMC refused to accommodate her even as its leaders insisted she was disabled with suicidal thoughts. However, the appeals court ruled that requiring Barnum to undergo a psychiatric examination did not amount to labeling her as disabled and that it was reasonable for OSUMC to insist that it be allowed to talk to her psychiatrist before reinstating her.
HOSPITAL OVERREACTED?
Klos says the case raises questions about an employer’s ability to take actions such as requiring a psychological evaluation and suspending, reassigning, or dismissing an employee for statements that are unusual but have no bearing on the person’s duties in the workplace. Any statement Barnum made implying suicidal thoughts were taken too seriously and did not affect her performance, he says.
“They had one instance of one hearsay complaint by an employee who said, ‘I think she could use some time off for herself,’” Klos says. “Those are the exact facts that existed on the day she was ordered to the ED. That is not enough to justify an egregious violation of her privacy and her rights under the ADA.”
A spokesman for OSUMC declined to comment on the case because the litigation is pending, but in the oral arguments before the appeals court, Rory Callahan, JD, an attorney with the Ohio attorney general’s office, represented OSUMC and argued that the hospital’s actions were in response to more than just the comments overheard at work. The concerns of her coworkers raised legitimate questions about her ability to perform her duties, he said. An appeals court judge questioned why those concerns were not documented. Callahan responded that there was an incident reporting system at OSUMC, but comments were not documented.
“I would argue that OSU doesn’t have to wait for an accident to occur before they can report something,” Callahan argued.
Even though the hospital won the appeal, Klos notes that it spent significant time and money on the defense. He suggests that healthcare facilities must be far more cautious about responding to comments overheard in the workplace and that significant evidence is needed before intruding so significantly in an employee’s personal life and career.
“If a hospital reacted this way to every emotional comment at work from someone who’s going through a divorce, the Spanish Inquisition would be a cakewalk in comparison,” Klos says. “They had no documents to support this. They probably have six different records to document giving out an aspirin, but they have no incident reports, nothing written, just anecdotal reports that aren’t even documented, and they say that justifies sending her for a psych evaluation.”
The court records are available online at http://1.usa.gov/1TlsJft. The audio of the oral arguments before the appeals court is available online at http://1.usa.gov/1RNIwhQ.
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