[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
McGowan v. Medpace, Inc., Slip Opinion No. 2017-Ohio-1340.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2017-OHIO-1340
             MCGOWAN, APPELLANT, v. MEDPACE, INC., APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as McGowan v. Medpace, Inc., Slip Opinion No.
                                   2017-Ohio-1340.]
Appeal dismissed as having been improvidently accepted.
    (No. 2015-1756—Submitted February 8, 2017—Decided April 12, 2017.)
              APPEAL from the Court of Appeals for Hamilton County,
                  Nos. C-140634 and C-140652, 2015-Ohio-3743.
                                   _______________
        {¶ 1} This cause is dismissed as having been improvidently accepted.
        {¶ 2} The court orders that the opinion of the court of appeals may not be
cited as authority except by the parties inter se.
        O’CONNOR, C.J., and O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
        BRUNNER, J., concurs in part and dissents in part, with an opinion.
        O’NEILL, J., dissents, with an opinion joined by BRUNNER, J.
        CANNON, J., dissents.
                             SUPREME COURT OF OHIO




       TIMOTHY P. CANNON, J., of the Eleventh District Court of Appeals, sitting
for FISCHER, J.
       JENNIFER L. BRUNNER, J., of the Tenth District Court of Appeals, sitting for
DEWINE, J.
                                _______________
       BRUNNER, J., concurring in part and dissenting in part.
       {¶ 3} I join the majority’s holding that the opinion of the court of appeals
may not be cited as authority except by the parties inter se. I write separately to
note that the court’s limitation on the authority of the court of appeals’ opinion in
this case should render dubious further reliance on the First District Court of
Appeals’ earlier opinions in Hale v. Volunteers of Am., 158 Ohio App.3d 415, 2004-
Ohio-4508, 816 N.E.2d 259 (1st Dist.), and Dean v. Consol. Equities Realty #3,
L.L.C., 182 Ohio App.3d 725, 2009-Ohio-2480, 914 N.E.2d 1109 (1st Dist.), which
the appellate court expressly followed.
       {¶ 4} The appellate court recognized that the employment-at-will doctrine
is a common-law doctrine and that the termination of an employee “generally does
not give rise to an action for damages.” 2015-Ohio-3743, 42 N.E.3d 256, ¶ 14. It
then noted that this court’s decision in Greeley v. Miami Valley Maintenance
Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), created a judicially
recognized “exception to this employment-at-will doctrine” when there is a
violation of a clearly expressed public policy. 2015-Ohio-3743 at ¶ 15.
       {¶ 5} The appellate court went on to state that with respect to claims for
wrongful discharge in violation of public policy,


       absent a narrow interpretation of the types of public policy
       applicable to these claims, the exception becomes the rule. With the
       continued and ongoing explosion in statutes, governmental
       regulations, and policies found under the Ohio Revised Code and




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                                 January Term, 2017




       the Ohio Administrative Code, as well as federal laws and
       regulations, if exceptions to the at-will-employment doctrine are not
       narrowly construed, the so-called “exceptions” will speedily and
       overwhelmingly undermine and eliminate the concept of at-will
       employment in this state. The employment-at-will doctrine is, as
       conceded by all parties herein, the starting point for an employment-
       law analysis for this type of claim. This doctrine has remained
       untouched by the legislature since its inception, and is effectively
       one of Ohio’s most basic “public policies” on employment issues.
       * * * Such a change in basic Ohio public policy should be left to the
       legislature, not this court.


(Emphasis added.) Id. at ¶ 22.
       {¶ 6} With this reasoning, the appellate court essentially states that
exceptions, such as the one described in Greeley, to judicially created common-law
doctrines such as the employment-at-will doctrine should be created only by the
legislature. And for this reason, the appellate court relied on its two previous
decisions in Hale and Dean rather than follow Greeley.
       {¶ 7} Hale and Dean require that the public policy upon which the
exception to the employment-at-will doctrine is based must (1) impose an
affirmative duty on an employee to report a violation, (2) prohibit an employer from
retaliating against an employee who has reported a violation, or (3) protect the
public’s health and safety. Hale, 158 Ohio App.3d 415, 2004-Ohio-4508, 816
N.E.2d 259, at ¶ 46; Dean, 182 Ohio App.3d 725, 2009-Ohio-2480, 914 N.E.2d
1109, at ¶ 11-12. Finding no such language in the insurance-fraud statute, the
appellate court narrowed Greeley, relying on Hale and Dean as “longstanding case
law” even though they were decided 14 and 19 years after this court decided
Greeley. 2015-Ohio-3743 at ¶ 22. This court’s holding that the opinion of the court




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                             SUPREME COURT OF OHIO




of appeals in this case may not be cited as authority except by the parties inter se
should cast doubt on the authority of the First District’s opinions in Hale and Dean.
                                 _______________
       O’NEILL, J., dissenting.
       {¶ 8} In her verified complaint, appellant, Mary McGowan, M.D., alleges
that after she was hired as an executive director by appellee, Medpace, Inc., she
became aware of fraudulent prescription-writing practices and patient-privacy and
confidentiality violations. Those activities concerned her so greatly that she held a
meeting with her staff to advise them that office practices would have to change to
prevent further violations, and she shared her concerns with Medpace’s chief
executive officer (“CEO”) and its general counsel.
       {¶ 9} McGowan alleges that she was repeatedly asked to sign prescription
renewals for incorrect amounts and it was explained to her that her predecessor had
always done this to save patients money. McGowan refused to sign the renewals
and explained that that practice was insurance fraud.
       {¶ 10} McGowan further alleges that she noticed that the charts for patients
participating in two different studies were combined and that the charts included
the patients’ full names, rather than just their initials, as is customary in medical
studies. McGowan thought this was a clear violation of the patients’ privacy rights,
because the studies were being conducted by two different entities, and McGowan
did not think it was right that study monitors could see all of the patients’ personal
information, as opposed to just their initials.       McGowan also noticed that
Medpace’s practice of leaving patient charts open on tables outside the exam rooms
had the potential of exposing confidential patient information to anyone walking
by and was another clear violation of state and federal patient-privacy laws.
       {¶ 11} McGowan held a staff meeting and stated that she would not be
filling prescriptions for incorrect amounts of medication. She also told the staff to
separate the charts for the patients being seen in a private practice from the charts




                                          4
                                January Term, 2017




for the participants in Medpace’s medical studies and to dispose of old charts in
order to conform to state and federal patient-privacy laws. Shortly after the staff
meeting and after she brought her concerns to Medpace’s CEO and general counsel,
McGowan was removed from her supervisory role at Medpace and was terminated.
       {¶ 12} McGowan filed a complaint alleging that her employment was
terminated in retaliation for her good-faith complaints about insurance fraud under
Ohio law and about violations of the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), Pub.L. No. 104-191, 110 Stat. 1936,
codified as amended in various sections of Titles 18, 26, 29, and 42 of the United
States Code.
       {¶ 13} Following a nine-day trial, a jury unanimously concluded that
McGowan’s termination was retaliatory and constituted a wrongful discharge for
which she is entitled to damages. Notwithstanding the jury’s unanimous verdict,
the First District Court of Appeals reversed the judgment and found that Medpace
was entitled to a directed verdict based on the erroneous legal conclusion that
McGowan’s wrongful-discharge claim was not based on sufficiently clear public
policy. The court of appeals concluded that neither R.C. 2913.47 (the Ohio
insurance-fraud statute) nor HIPAA imposes an affirmative duty on employees to
report a violation, expressly prohibits employer retaliation, or protects public health
and safety. 2015-Ohio-3743 at ¶ 23, 25-27. This is nonsense.
       {¶ 14} Ohio law is clear that “public policy warrants an exception to the
employment-at-will doctrine when an employee is discharged or disciplined for a
reason which is prohibited by statute.” Greeley v. Miami Valley Maint. Contrs., 49
Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraph one of the syllabus. A motion
for a directed verdict should be granted when, “construing the evidence most
strongly in favor of the party opposing the motion, the trial court finds that
reasonable minds could come to only one conclusion and that conclusion is adverse
to such party.” Limited Stores, Inc. v. Pan Am. World Airways, Inc., 65 Ohio St.3d




                                          5
                            SUPREME COURT OF OHIO




66, 73, 600 N.E.2d 1027 (1992), citing Civ.R. 50(A)(4). Instead of applying the
law of this court and affirming the jury verdict that was reached based on that law,
the court of appeals applied its own case law as set forth in Hale v. Volunteers of
Am., 158 Ohio App.3d 415, 2004-Ohio-4508, 816 N.E.2d 259 (1st Dist.), and Dean
v. Consol. Equities Realty #3, L.L.C., 182 Ohio App.3d 725, 2009-Ohio-2480, 914
N.E.2d 1109 (1st Dist.), to conclude that McGowan’s claim failed as a matter of
law. 2015-Ohio-3743 at ¶ 17-19, 27. In plain terms, the court of appeals found
that no facts alleged in the complaint could form the basis for recovery. This
complaint in simple terms alleged a firing for resisting HIPAA violations and a
pattern of organized insurance fraud. The appellate court misapplied the law of
Ohio and Civ.R. 50 in this case.
       {¶ 15} Dismissing this case as improvidently allowed and restricting the
precedential value of this erroneous appellate decision does nothing to preserve the
law as established in Greely. Likewise, it deprives McGowan of the jury verdict in
her favor and the damages awarded by the jury. I dissent.
       BRUNNER, J., concurs in the foregoing opinion.
                                   _______________
       Freking, Myers & Reul, L.L.C., Randolph H. Freking, and Brian P. Gillan,
for appellant.
       Thompson Hine, L.L.P., Deborah S. Brenneman, and George B.
Musekamp, for appellee.
       The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, urging
reversal for amicus curiae, Ohio Employment Lawyers Association.
                                   _______________




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