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Court Rules Nurse Does Not Hold ‘Position of Trust’ That Would Bar Her From Intervention Program

For First Offense Theft of Drugs from Hospital Where She Was Employed

2009-0825.  State v. Massien, Slip Opinion No. 2010-Ohio-1864.
Summit App. No. 24369, 2009-Ohio-1521.  Certified question answered in the negative, and judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O’Donnell, and Lanzinger, JJ., concur.
Cupp, J., concurs in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1864.pdf

Video clip View oral argument video of this case.

(May 5, 2010) The Supreme Court of Ohio ruled today that a nurse employed in a hospital, who steals drugs in the course of her employment, does not occupy a “position of trust” and is not categorically ineligible for Intervention in Lieu of Conviction (ILC).

The Court’s 6-0 decision, authored by Justice Maureen O’Connor, affirmed a ruling by the 9th District Court of Appeals.

R.C. 2951.041 allows Ohio trial courts, at their discretion, to refer a first-time offender charged with a qualifying offense who meets certain requirements to a period of rehabilitation if the court has reason to believe that drug or alcohol usage was a factor leading to the offense. If the defendant successfully completes the intervention plan, the trial court dismisses the proceedings against the offender without a finding of guilt and may seal the records relating to the offense. Among other requirements, to be eligible for ILC, an offender must qualify for community control sanctions (rather than a prison sentence) under R.C. 2929.13(B)(2)(b). A separate statutory provision, R.C. 2929.13(B)(1) lists several findings that disqualify an offender from eligibility for sentencing under R.C. 2929.13(B)(2)(b) and, therefore, for placement in an ILC program.  One of these findings, set forth in R.C. 2929.13(B)(1)(d), bars from eligibility an offender who “held a public office or position of trust and [whose] offense related to that office or position.”

In this case nurse Sally Massien was charged with taking drugs from the Akron hospital where she was employed.  As a first-time offender, she requested ILC. The trial court granted Massien’s request over the objection of the Summit County prosecutor’s office. The prosecutor appealed, arguing that because Massien was entrusted with special access to drugs as a nurse, and had abused that trust by taking drugs illegally in the course of her employment, she violated a “position of trust,” and was therefore barred from participation in an ILC program. On review, the 9th District Court of Appeals affirmed the trial court’s judgment that Massien did not occupy a position of trust for purposes of the sentencing statute, and the trial court had not erred in finding her eligible for ILC.

The 9th District subsequently certified that its decision in this case was in conflict with State v. France, a 2006 decision in which the 10th District Court of Appeals held that a nurse who stole drugs in the course of her employment at a hospital had abused a position of trust and was ineligible for ILC. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the Court in today’s decision, Justice O’Connor noted that a number of Ohio’s district courts have interpreted the phrase “position of trust,” as used in R.C. 2929.13(B)(1)(d), and have reached conflicting results.  While some districts have construed that language narrowly to apply only to government officials and public servants, other courts have construed it more broadly to apply to virtually any public or private individual whose offense involved a breach of trust.

Justice O’Connor wrote: “By including the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d) without limitation, the General Assembly evidenced its intent not to limit its application to public officials.  However, we do not believe that the legislature intended the phrase to apply to all individuals who breach any private expectation of trust.”  After reviewing the specific statutory language at issue, and analyzing it in context with eight parallel provisions of R.C. 2929.13(B)(1) that each identify a specific aggravating circumstance that justifies a sentence of imprisonment rather than community control, she wrote:  “Each sentencing factor crafted by the legislature applies to a narrow aggravating circumstance that may justify the imposition of a prison sentence rather than the preferred community control for fourth- and fifth-degree felonies. ...  Given the narrow application of the sentencing factors identified in R.C. 2929.13(B)(1) and (B)(1)(d), ...  we believe that the General Assembly intended a limited application of the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d).  Limiting the application of the section to private individuals who occupy a special relationship of trust and confidence equivalent to a fiduciary relationship and whose offense relates to that fiduciary relationship prevents the disqualification of persons who are not clearly meant to be excluded from ILC.”

Applying this standard, the court considered whether Massien occupied a special relationship of trust and confidence equivalent to a fiduciary relationship as a result of her employment as a nurse.  In analyzing the relationship of a nurse with a hospital employer, Justice O’Connor quoted earlier court decisions defining a fiduciary as “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.”   She wrote: “Nurses are persons of ‘superior knowledge and skill,’ who have a duty to their patients to employ the degree of care, skill, and diligence that a nurse of ordinary care should employ in like circumstances.  ... However, the duty of care imposed by law on a nurse toward his or her patients does not create a fiduciary relationship between the nurse and his or her employer-hospital. Further, a nurse’s job duties are not sufficiently discretionary to transform the relationship with his or her employer-hospital into a fiduciary relationship.”

“A nurse occupies a necessary and important supportive role in caring for patients and administering medication.  However, as is illustrated by the respective duties of nurses and physicians, discretion relating to the diagnosis and treatment of a patient is statutorily in the hands of the physician, not the nurse.  A nurse employed by a hospital does not occupy a position of discretion and, therefore, does not occupy a fiduciary relationship. Because a nurse is not a fiduciary by virtue of his or her employment with a hospital, he or she does not occupy a ‘position of trust’ for the purpose of R.C. 2929.13(B)(1)(d). Therefore, a nurse who steals drugs from the hospital in which he or she is employed is not categorically ineligible for ILC by virtue of his or her employment.”

Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger. 

Justice Robert R. Cupp concurred with the majority judgment, but entered a separate opinion stating that in his view the “position of trust” language relied upon by the state in this case applies only to public officials, public servants and those holding public positions of trust. He wrote: “R.C. 2929.13(B)(1)(d)  addresses three situations. It is the first category that is at issue in this case:  offenders who ‘held a public office or position of trust and the offense related to that office or position.’  The statute uses the phrase ‘a public office or position of trust,’ indicating that the ‘office’ and the ‘position of trust’ are both of a public nature. In this regard, the article ‘a’ operates as a grammatical signal that both ‘office’ and ‘position of trust’ are parallel terms modified by ‘public.’ ... I do not believe that positions of trust held by private individuals which positions are not in the nature of a public trust are included within the first category listed in R.C. 2929.13(B)(1)(d).”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.

Karen H. Brouse, 330.928.7878, for Sally Massien.

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