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A TRAVESTY OF JUSTICE

Brian Gillan

Thanks to the Ohio Supreme Court and the Hamilton County Court of Appeals, Workers in Hamilton County Can Now Be Fired with Impunity If They Report Any of Several Illegal Activities Engaged in by Their Employer.

Thanks to a recent decision by the Ohio Supreme Court, workers in Hamilton County who witness their employer engaging in insurance fraud, immigration law infractions, the use of underage workers, payday lending law violations, or violations of the federal statute protecting the confidentiality of patient medical records, among other things, may now be fired by their employers without any legal recourse.

The decision was issued in the case McGowan v. Medpace, Case No. 2015-1756, and here are the facts. Dr. Mary McGowan is a nationally recognized physician and researcher who was hired into an executive position at Medpace, a billion-dollar local healthcare company. Shortly after she was hired, she became aware of fraudulent prescription writing practices and patient privacy and confidentiality violations. These concerned her so greatly that she held a meeting with her staff to advise that office practices must change to prevent further violations, and met with Medpace senior management to report those concerns. Rather than investigate her concerns, Medpace fired Dr. McGowan in retaliation for her good faith complaints of insurance fraud and violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

Dr. McGowan sued Medpace for, among other things, wrongful termination in violation of Ohio public policy. The jury unanimously concluded that Medpace’s retaliatory firing violated Ohio public policy and constituted a wrongful discharge. It awarded Dr. McGowan $300,000 in compensatory damages and $500,000 in punitive damages.

Despite the jury’s unanimous verdict, the First District Court of Appeals (the appellate court for Hamilton County) reversed the judgment based on a legal conclusion that is at odds with numerous other Ohio appellate courts and 25 years of Ohio Supreme Court precedent in this area.

Dr. McGowan asked the Ohio Supreme Court to review the case since it presented important legal issues for workers throughout Ohio, but especially in Hamilton County. The Supreme Court initially agreed to review the Court of Appeals’ decision. The parties filed lengthy briefs and argued the case to the Ohio Supreme Court on February 8, 2017. Then, a few weeks ago, the Supreme Court changed its mind and decided not to review the decision of the First District Court of Appeals after all. Such a decision is highly unusual. Even more unusual is the fact that the court gave no explanation for its decision.

As a result of the actions of the First District Court of Appeals and the Ohio Supreme Court, in Hamilton County it appears employees can now be fired for:

∙ Testifying truthfully, although unfavorably to their employer.
∙ Exercising their right to consult an attorney.
∙ Refusing to commit illegal acts, such as padding customer checks.
∙ Refusing to commit insurance fraud at their employer’s insistence.
∙ Reporting violations of HIPAA’s patient privacy and confidentiality provisions.
∙ Raising concerns about insurance fraud.

Elections have consequences. The voters of Ohio elect their judges, including Ohio Supreme Court justices. The current make-up of this court is decidedly anti-worker. The McGowan decision is just the latest example of that anti-worker sentiment. So the next time you think that your vote doesn’t matter, think again.

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