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Patricia Ambrose Rubright Joins Mazanec, Raskin & Ryder Co., L.P.A.: Experienced Litigator Assumes Of Counsel Role in Firm’s Cleveland Office

patricia-rubright-borderMazanec, Raskin & Ryder Co., L.P.A. (MRR) is pleased to announce that Patricia Ambrose Rubright has joined the firm’s Cleveland office, where she will work Of Counsel in the Municipal Law Group. Ms. Rubright, who most recently served as Law Director for the City of Akron, Ohio, has over 35 years of experience in public sector law.

Ms. Rubright’s primary area of focus is on civil rights and the defense of public employers and employees in government liability matters. In the course of her career, she has litigated multiple civil rights cases involving all aspects of policing, including deadly force, in addition to major employment discrimination cases in both state and federal courts involving race, sex, disability, and age discrimination, and many other types of claims. She also provides advice and counseling regarding federal Equal Employment Opportunity laws such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and Title VII.

Prior to joining MRR, Ms. Rubright engaged in a life of public service with the City of Akron, first as an assistant prosecutor. Later, as assistant law director, she represented the city in litigation as well as directed both the Labor Relations Office and Personnel Department. Her career culminated in her role as the city’s Law Director. She earned her law degree from the University of Akron School of Law and her Bachelor of Science degree, graduating cum laude, from West Virginia University.

“Patricia is a highly respected attorney who is a great fit for our Municipal Law Group,” said MRR President and Managing Partner Joseph F. Nicholas, Jr. “We are delighted to be able to call on her knowledge and experience.”

MRR’s public sector, civil rights, and governmental liability attorneys represent counties, cities, villages, townships, boards of education, mental health agencies, children services boards and other social service agencies, park districts, and numerous other local and regional agencies. The team consists of attorneys who have practiced almost exclusively in the civil rights area for their entire careers, including several former assistant law directors and prosecutors, in addition to two attorneys who have consistently been named Best Lawyers in America for Civil Rights law. For more than 30 years, our firm has successfully represented virtually every type of public agency in cases involving allegations of civil rights violations, Section 1983 Claims, land use and zoning, police liability, general liability claims, child neglect and child abuse claims, employment matters, age discrimination, gender discrimination, and race discrimination.

MRR Article: Ohio Supreme Court Decides ‘What Constitutes a Medical Record in Personal Injury Suits’ in Griffith v. Aultman Hospital

Griffith v. Aultman Hospital, 2016-Ohio-1138

On March 23, 2016, the Ohio Supreme Court published its Slip Opinion in Griffith v. Aultman Hospital, a Decision which will have significance relative to the production of medical records in personal injury suits. Specifically, the case rules on what constitutes a medical record under Ohio law, which impacts how hospitals and other health care providers will respond to requests for medical records in the future.

The Plaintiff was Gena’a Griffith, whose father, Howard, was admitted to defendant Aultman Hospital on May 2, 2012 for surgery. Following surgery, Mr. Griffith was transferred from intensive care to a step-down unit to continue his recovery. In the step-down unit, Mr. Howard somehow became disconnected from his cardiac monitor, central line, and chest tube. He suffered severe brain damage and ultimately passed away on May 8, 2012.

On July 24, 2012, Plaintiff requested a copy of Mr. Griffith’s complete medical record. The hospital provided only some documents in response. Plaintiff filed two other requests for medical records, but alleged that the records she received were not complete and she subsequently filed suit. Specifically, Plaintiff claimed that the hospital had failed to produce any monitoring strips or nurse records from Mr. Griffith’s hospital stay. The hospital contended the rhythm strips did not meet the legal definition of medical records because the records were housed in a different location and the hospital was therefore not required to print them. Further, the hospital argued that the data produced from electronic monitoring equipment is not part of a patient’s medical record.

Before the Supreme Court of Ohio was the issue of what constitutes a “medical record” as the term is used in Ohio Revised Code Section 3701.74(A)(8). The Court reasoned that because the legislature did not specifically define “maintain” in R.C. 3701.74, the normal, common meaning would apply. The Court defined maintain as “to continue in possession of.”  The Court then held that contrary to the hospital’s assertion, the definition of “maintain does not depend on a managerial decision to keep or preserve the data in a discrete location or file.” The Court found that the physical location of patient data is not relevant in determining whether the data qualifies as a medical record. Instead the Court opined that the inquiry should focus on whether a healthcare provider made a decision to keep data that was generated in the process of the patient’s treatment and pertains to the patient’s medical history, diagnosis, prognosis, or medical condition.

With regard to whether the hospital met its burden in producing the entirety of Mr. Griffith’s medical records, the Court reasoned that if the rhythm strips were saved at the discretion of a physician before Mr. Griffith’s passing, the information would fall under the definition of “medical record” and would need to be produced. The Court ultimately remanded to the trial court on the factual issue of whether Mr. Griffith’s physicians recommended that the rhythm strips be saved in the course of treating Mr. Griffith.

Finally, the Court held that “the plain language of R.C. 3701.74 does not require a patient seeking a medical record [to] state a reason for doing so.” This holding overrules language from the lower court which limited the scope of R.C. 3701.74 to simply enabling a patient to obtain his file to find a second opinion or transfer to another medical provider. Rather, all that is required of a patient or patient’s representative is to submit a written request.

Overall, the Court’s conclusions in Griffith will place a greater burden on hospitals to maintain all medical records and be able to produce all such records upon request of a patient or patient’s representative. The practical effect of this decision from a defense attorney’s perspective is that it will become somewhat easier to obtain a full medical record in a personal injury case. Griffith dictates that hospitals provide all “data that was generated in the process of the patient’s treatment and pertains to the patient’s medical history, diagnosis, prognosis, or medical condition.” Defense attorneys, and their clients, will be able to not only obtain a full medical record, but will be able to do so without having to state a reason for their request.


 

MRR Article: Protecting Your Workplace (and You): Tips for Effective Workplace Harassment Investigations

By Neil S. Sarkar, Esq.

In a recent U.S. 6th Circuit Court of Appeals Case (which covers Ohio employers), an employer was found liable for sexual harassment for permitting male-on-male bottom slapping that the employer dismissed as mere “horseplay.” Unfortunately, it appears that when workplace harassment complaints were made, the employer’s investigation did not include taking any written statements from those interviewed, nor was a formal investigation report made. Worse still, no prior allegations of prior misconduct by the alleged harasser were investigated.  Flash forward: a workplace harassment lawsuit is filed. The employer tries to defend case on a theory that such conduct is “horseplay.” The U.S. 6th Circuit Court of Appeals affirmed a $300,000 jury verdict in favor of the male employee bottom-slapped by his co-worker.  This victim of “male-on-male” sexual harassment sued his employer for letting it happen. The employer’s own internal investigation in this case is telling.

This case reads as a cautionary tale for what happens when internal investigations of workplace harassment complaints are mishandled.  When reading this, it is my hope you employers are all saying to yourselves “I don’t want to be in that employer’s situation.”

With this in mind, here are some key points for properly investigating such complaints. Employers must always be prepared to deal proactively with workplace harassment complaints in all forms. Having a soundly drafted policy against workplace harassment is necessary, but not enough. Employers must have properly trained supervisors always ready to address any harassment complaint, and promptly and thoroughly investigate all allegations of harassment (whatever form it takes).

Some key tips:

  1. Promptly and Thoroughly Investigate. Always promptly and thoroughly investigate all complaints of alleged harassment, however silly or small any may seem; indeed, the above recent case reaffirms that sexual harassment can occur even when the conduct is directed towards members of the same gender.  Don’t put off investigating complaints until the situation gets out of control.  Immediately meet with the complaining party and take him or her seriously.  Assure him or her that you will strive to keep the investigation confidential, but do not guarantee the utmost confidentiality.  You will likely need to share the investigation results, including specific allegations, with the alleged harasser.  Find out who was involved; what happened and where; and if other witnesses were present.  Also, ask the complaining party to put his or her complaint in writing and sign the statement, if appropriate.

Then, under appropriate circumstances, meet with the alleged harasser.  Ask him or her the same questions you do the complaining party.  Explain the nature of the complaint and your legal duty to conduct a prompt and thorough investigation.  Indicate you will strive to keep the investigation confidential but utmost confidentiality cannot be guaranteed.  Also make sure he or she understands that any retaliation against the complaining party and/or alleged victim and/or other witnesses will result in discipline, up to and including immediate termination of employment.

Then, in appropriate situations, meet with each additional witness as soon as possible.  If feasible, interview each of them thoroughly, obtain written statements for each of them to sign, and advise them all to keep the incident and investigation confidential.

Please note that appropriate circumstances may certainly warrant changing the order of those you interview.  For example, you may have previously found the alleged harasser to have committed harassment, or the harassing conduct may be largely undisputed or egregious.  In those situations, after interviewing the victim, then consider interviewing the witnesses, and then the alleged harasser.  That way, in such situations like those above, this approach arms you as the investigator with as much information as possible before you sit down with the alleged harasser, who may most likely be the one to try and cover up possible harassment.

  1. Keep the alleged Harasser Separate from the alleged victim. You should always be sensitive to separating the complaining party from the alleged harasser while the investigation remains ongoing.  Otherwise, you could be sued not only for letting additional harassment happen, but also for retaliation.  This is because any reports of alleged harassment are deemed “legally protected activity” and once the employer is aware of this, the employer must not take adverse employment action against the employee, including allowing him or her be subject to any further negative treatment or harassment by the alleged harasser.  Separating the alleged victim from the alleged harasser makes this a non-issue.  Yet, to be clear, the person to be separated should be the alleged harasser – not the alleged victim.
  1. Ensure the investigation is always fair and unbiased. That is, do not conduct your investigation with pre-conceived notions of what the outcome should be based on what you’re suspecting.  Instead, interview all involved parties, keep detailed notes, and ask open-ended questions (including being sufficiently persistent and probing when necessary, lest you as an employer risk an argument that you were on notice of the harassment problem yet failed to conduct a sufficiently thorough investigation to bring the potential harassment to light).  Also, always focus on what the witnesses to the incident actually personally saw or heard.  And, coming back the requirement of conducting a thorough investigation, remember that when asking questions during the course of your investigation, you may always go back and talk to witnesses a second or third time if you wish.
  1. Be Mindful of Body Language and Past Circumstances. In making credibility assessments as to whether harassment did, in fact, occur, keep in mind the body language of the witness, whether anyone has a motive to lie and whether the account can or cannot be verified with independent witnesses or other evidence.  Also, determine if the alleged harasser has a past history of harassment or similar misconduct.  Regrettably, the latter factor was overlooked by the employer in the above 6th Circuit case.
  1. Take Appropriate Action. If you determine that harassment occurred, then consider the appropriate discipline to administer; the main factor should usually focus on what corrective action is needed to restore the alleged victim’s right to a harassment-free workplace.  Other factors may include the severity of the harassment; and whether it is the harasser’s first offense.
  1. Remember Your Ongoing Duty to Maintain a Harassment-Free Workplace. Finally, and perhaps most important, always remember that you as an employer have a continuing legal duty to provide a harassment-free work environment to your employees.  Never disregard any complaint, no matter how busy you are or how trivial it may sound.
  1. A Special Note to Public Sector Employers: Public employers must take additional considerations into account when conducting investigations.  Ohio Revised Code Section 9.84 allows any person appearing as a witness before a public official, board, etc. to be represented by an attorney.  For investigations of a more serious nature, public employees are entitled to notice that they are being questioned in the course of an investigation.  Under an Ohio Supreme Court case, In re Matter of Civil Service Charges & Specs. Against Piper, 88 Ohio St.3d 308 (2000), employees are entitled to a Piper notice which notifies them when and where the interview will be and that they have a right to have union or legal representation present at the interview.

During the investigative interview, a public employee cannot refuse to answer a question honestly unless the employee believes that the answer will incriminate him or her.  Public employees have a right to not be forced to either incriminate themselves under the U.S. Constitution or lose their jobs by refusing to tell the truth to their public employer.  Employee can be offered a Garrity warning (Garrity v. New Jersey, 385 U.S. 493 (1967)), which guarantees that anything they say in the investigative interview cannot be used against him/her in any criminal proceeding.  It is imperative that any information learned in the investigation pursuant to a Garrity warning not be made available to law enforcement so as to taint law enforcement’s ability to pursue the matter criminally.

For more information on workplace investigations or for form copies of a Piper notice and/or Garrity warning, please contact Neil Sarkar at nsarkar@mrrlaw.com,  Tami Hannon at thannon@mrrlaw.com, or Stacy Pollock at spollock@mrrlaw.com.


For questions or more information on “Protecting Your Workplace (and You): Tips for Effective Workplace Harassment Investigations,” contact:

Neil S. Sarkar  – MRR Cleveland
Phone: 440.287.8292
Fax: 440.248.8861
Email: nsarkar@mrrlaw.com

Law Enforcement Blog: Use of Force Policies and Procedures: Lessons from the Big Apple

By: Christina L. Vessels, Esq.

Last October, the Office of the Inspector General for the New York Police Department published a Report entitled “Police Use of Force in New York City: Findings and Recommendations on NYPD’s Policies and Practices.” The Report focuses on five aspects of use of force within the NYPD: (1) trends; (2) reporting; (3) de-escalation; (4) training; and (5) discipline.

There are several significant findings in this 62-page Report. Perhaps most notable is the Report’s conclusion that “NYPD’s current use-of-force policy is vague and imprecise, providing little guidance to individual officers on what actions constitute force.” The OIG’s recommendation is for NYPD to adopt a more precise use-of-force Patrol Guide procedure that includes greater clarity on what is meant by “force,” “excessive force,” and “deadly force.”

The Report also states that NYPD’s current procedure for documenting and reporting force incidents needs improvement. There is currently no centralized, uniform use-of-force reporting mechanism, and there are problems with the way officers are describing incidents of force after they occur. NYPD officers often fail to use sufficiently descriptive language that properly captures the specifics of an encounter. The Report suggests the creation of a new reporting form in which officers articulate the type, nature, and seriousness of resistance exhibited by the citizen that preceded and necessitated the use of force. Officers are also urged to reference whether other officers used force and the timing of the use of force.

These are just some highlights. You can find the Report in its entirety here: http://www.nyc.gov/html/oignypd/assets/downloads/pdf/oig_nypd_use_of_force_report_-_oct_1_2015.pdf

If an independent agency were to closely examine your Department’s use-of-force policy, what conclusions would it draw? How can your policy be improved?


For questions or more information on “Use of Force Policies and Procedures: Lessons from the Big Apple,” contact:

Christina L. Vessels  – MRR Lexington
Phone: 859.899.8515
Fax: 859.899.8498
Email: cvessels@mrrlaw.com

The Search of Cell Phones Incident to Arrest

By: Kyle B. Melling, Esq.

In Chimel v. California, 295 U.S. 752 (1969) the United States Supreme Court held that under the Fourth Amendment arresting officers may search a suspect who is under arrest as well as the area in the suspect’s immediate control for purposes of officer safety and to protect against the destruction of evidence. This search was limited to areas in which a suspect might gain possession of a weapon or destructible evidence. In 1973, the Supreme Court clarified that arresting officers were even permitted to open a crumpled pack of cigarettes found in a suspect’s pocket, as part of a “search incident to arrest.” U.S. v. Robinson 414 U.S. 218, (1973).

At the time of the Robinson decision, the physical objects in the area immediately surrounding a suspect were much different than they are today. In 1973, this area may have included the contents of a wallet, notes that an arrestee had in his or her pocket, or, as in the case of Robinson, a cigarette packet holding heroin capsules. Today however, arrestees may possess personal cell phones, laptop computers, tablets, and other electronic storage devices that contain a wealth of information in which a suspect may have a privacy interest. The Chimel decision and its progeny did not provide specific guidance about whether arresting officers may access the data on these electronic storage devices.

The United States Supreme Court recently addressed this issue in Riley v. California, 134 S.Ct. 2473 (2014). The Court held that digital information on a cell phone may not be searched without a warrant, absent exigent circumstances. In the opinion, Chief Justice John Roberts noted that the decision in Robinson was “based on technology nearly inconceivable just a few decades ago.”

Accordingly, since Robinson, the clearly established law still permits the arresting officers to examine the physical device to determine whether the phone is disguised as a weapon, and they may power the cell phone down or remove its battery to prevent remote deletion of data. However, arresting officers may not, absent exigent circumstances, access the data on the cell phone without a warrant.

The Supreme Court did recognize that case-specific exceptions may still justify a warrantless search of a cell phone, but only in a very limited sense. Specifically, the Court cited examples of instances of child abduction or potential bomb threats.

In light of the Court’s decision in Riley, unless there are exigent circumstances, officers that want to search the data from an arrestee’s cell phone must first obtain a search warrant. Failure to do so violates the Fourth Amendment and would also likely strip an officer of qualified immunity, subjecting the officer to liability under 42 U.S.C. §1983.


For questions or more information on “The Search of Cell Phones Incident to Arrest,” contact:

 

Kyle B. Melling  – MRR Cleveland
Phone: 440.287.8295
Fax: 440.248.8861
Email: kmelling@mrrlaw.com