Defamation Claim Partially Survives Dismissal in Suit by Former Ohio Hospital Employees

On Wednesday, Judges Edmund A. Sargus Jr. and Kimberly A. Jolson of the Southern District of Ohio partially denied Mount Carmel Health System’s motion to dismiss an allegation of defamation brought by nine former Mount Carmel employees. The court rejected some of the allegedly defamatory statements, but others were allowed to continue.

The complaint, filed last year in an Ohio county court against Mount Carmel, Trinity Health Corporation, and CEO of Mount Carmel Edward Lamb, stemmed from the aftermath of reports by staff members that detailed Dr. William S. Husel’s purported overdosing of fentanyl to patients during palliative extubation, which is the withdrawal of a tube that had been sustaining a person’s life paired with pain medication for comfort.

Through a system designed for employees to detail work-related concerns, two workers submitted voice reports regarding Husel’s prescribing of 1000 mcg of fentanyl to patients during palliative extubation, and one pharmacist filed a voice report regarding Husel’s prescribing of 2000 mcg of fentanyl to a patient with “a significant opioid tolerance,” the court explained. These reports resulted in Husel’s suspension in November 2018, and one month later, he was terminated.

“Mount Carmel fired Dr. Husel, put 20 staff on leave, contacted a homicide detective, and called the families of 26 patients to tell each of them that their loved ones had been given a ‘fatal’ dose of fentanyl (even though no such thing had occurred),” the complaint claimed, eventually detailing that additional staff members had been placed on leave.

The plaintiffs, Rebecca McNeil, Beth Macioce-Quinn, Earlene Romine, Edward Wright, Brandi Wells, Akeela Bowens, Chad Readout, Jessica Sheets, and Deron Lundy, sued under multiple causes of action, but the only one disputed by this motion was the defamation claim.

“Mount Carmel and Trinity each made numerous public statements … that were false and defamatory regarding the group (of plaintiffs), and that explicitly associated each member with events that Lamb, Mount Carmel and Trinity publicly announced involved the provision of ‘fatal,’ ‘potentially fatal’ and excessive doses of medication, to patients whose subsequent deaths were caused by these excessive dosages,” the plaintiffs alleged. “The false statements asserted that the medication had caused the deaths of 29 of the 35 patients and that 5 of those 29 patients might have recovered but for the actions taken by Dr. Husel and the group.”

The defendants argued that the allegations regarding their public statements “should be analyzed as group libel,” not individual defamation, as the plaintiffs postulated.

The court explained that defamation can only be sufficiently pleaded if, among other criteria, a plaintiff can establish that a statement was made “of and concerning” particular individuals. Analyzing the 20 statements by the defendants alleged to be defamatory, the court found that some of the statements did not implicate any of the plaintiffs, while some referenced at least one of them, warranting a partial survival of the defamation claim.

For example, a Jan. 14, 2019, video statement referenced “a small number of people” who made “poor decisions” and were placed on leave; the only plaintiff at the time who had been placed on leave was Romine, so the statement was made “of and concerning Plaintiff Romine, but none of the other Plaintiffs, and only Plaintiff Romine can build a defamation cause of action upon them.” On the other hand, one statement only mentioned the alleged conduct of Husel — who is not a plaintiff — thus rendering the statement not “of and concerning” the plaintiffs, according to the court.

The plaintiffs are represented by Graff & Associates LPA. The defendants are represented by Baker & Hostetler LLP and the Miller Law Firm.