By Josh Brokaw

josh.brokaw@truthsayers.org

The second federal case in less than a year against Cayuga Medical Center for alleged labor law violations wrapped up on Tuesday, April 4. The trial started on January 9 and took 16 days of testimony broken up over four multiple-day stints.

After a three week break in this National Labor Relations Board hearing, it resumed on Monday, April 3 – the same day fired nurse Anne Marshall went back to work under a federal injunction. Cayuga Medical presented its last two witnesses over two days: Karen Ames, chief patient safety officer, and Deb Raupers, vice president of patient services.

Ames was the manager who performed much of the in-house investigation into a September 11, 2016 incident that led to the firing of intensive care unit nurses Marshall and Loran Lamb in October 2016. Raupers was the administrator who decided they should be terminated after a patient complained they had not followed a protocol that requires two nurses check a patient’s identification at bedside before giving a blood transfusion. The NLRB and SEIU Local 1199 is arguing the nurses were singled out for termination because of Marshall’s visible union organizing activity, efforts that were at the center of the first federal judge’s ruling that Cayuga Medical violated labor law, issued last October.

Throughout the testimony of Ames and Raupers, little new information came up regarding the facts of the case – both sides have stuck to their stories since Truthsayers first reported the nurses’ firings last October. Cayuga Medical attorney Raymond Pascucci played audio recordings of meetings with Marshall and Lamb where the two nurses were told, individually, of their choice to either resign – thus keeping some benefits – or be terminated. The recordings largely aligned with the recollections of the two nurses in their own testimony in early March.

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Much of Ames’ and Raupers’ testimonies were concerned with the procedure of their investigation. Ames said that after the patient complained that she had not had two nurses check her blood, herself and Raupers went to the ICU and called safety “huddles,” where they asked the nurses for help in their investigation.

“I need to know if you are not doing it at bedside or witnessed anyone else who is not,” Ames said she asked the ICU nurses. “The response was nobody had any information about the two RN check not being done at the bedside.”

“At that point we had confirmation with the patient who had multiple transfusions throughout the organization at that point, she was able to clearly say this is the only time two RNs didn’t come through,” Ames said about her report’s conclusions. “We looked through all transfusion records. We looked through incident reports. We were not able to get any concrete information[the two RN check] was not common practice … Our only conclusion was it was a common practice across the organization and these two nurses had made the choice to set aside that common practice.”

Ames and Raupers emphasized the Cayuga Medical argument that the two nurses committed an unforgivable error when they skipped the bedside check and then signed their names to the transfusion card.

Even if there were unsafe staffing ratios in the ICU on September 11, both argued, policy exists to be followed for exactly those situations. And staffing was not unsafe that night, they said: there were four nurses working, one on-call, and an unassigned charge nurse for eight patients.

“That is never an excuse to bypass a safety practice meant to safeguard the patient,” Ames said. “Any given time the environment changes, the busier you are, that’s when it’s most important to slow yourself down and follow these safeguards.”

“I just can’t believe in critical care someone would not do a safety protocol,” Raupers said. “If the patient is advocating for themselves and asking for clarification it is our duty to explore that more.”

On cross-examination, Ames confirmed that a nurse in her office had suggested that random blood transfusions be observed covertly as part of the investigation, to see whether or not nurses were complying with the policy. Ames told the nurse not to carry out that plan on September 30, five days before the nurses were fired.

Raupers was asked by Pascucci if her knowledge that Marshall was active in the union effort made it more important, or easier, to investigate the case.

“If anything it’s kind of just the opposite,” Raupers said. “It made it difficult because you don’t want to take that into consideration. This is around clinical practice, the care given in the practice environment. It has nothing to do with a person or their beliefs.”

That was the right answer for the hospital to avoid blame under federal labor law: any evidence of unfair punishment against an employee because of organizing activity is illegal. Cayuga Medical wants to prove that the nurses were fired solely because their violation was a fireable offense. The hospital wants Judge Kimberly Soag Graves to give weight to their argument that nurses knew the policy, and that it was so important that Marshall and Lamb had to be fired for breaking it, and that any other nurses would be treated the same way.

There has been little that could be called explicit evidence of Cayuga Medical administrators taking biased actions in this trial. No recordings or emails or minutes to meetings have emerged that say hospital administrators were out to get Marshall or any other pro-union nurse. So it was understandable that Raupers seemed a bit disconcerted on the stand during cross-examination when NLRB attorney Jessica Noto confronted her with a document that could be read as harboring that kind of bias. The document was the evaluation of Raupers’ own work for 2016.

“You were commended this year for doing an exceptional job with the – quote – labor organizing threats we faced this year, correct?” Noto asked.

“I have never heard that phrased that way,” Raupers said. “Not that I recall.”

“You don’t recall – quote – Deb specifically handled the issue of the blood transfusion well in the context of the labor organizing threats?” Noto continued.

“I don’t remember it,’’ Raupers replied. Noto handed her the document.

“Honest to God I didn’t remember hearing those words,” Raupers said, reading the evaluation. “Now that I see them written … ”

Pascucci asked Raupers to read the portion of the evaluation to do with union organizing in full.

“Deb did an exceptional job dealing with the labor organizing threat we faced this year,” Raupers read. “She handled herself in a professional manner under very trying circumstances. She specifically handled the issue of the blood transfusion well. She was able to separate the fact the individual was a union organizer from the facts of the case and recommend the appropriate course of action and discipline in this case.”

“Do you think this was true?” Pascucci asked.

“Yes,” Raupers replied. “I separated union allegations completely from the clinical investigation of this case.”

Both Cayuga Medical and the NLRB and SEIU 1199 attorneys have 35 days to get their written briefs to Judge Soag Graves before she starts working on her decision. In the last Cayuga Medical case, the judge took five months to issue his ruling, one that is now being appealed by the hospital.

Do you have stories about your care at Cayuga Medical Center – or any other upstate New York health care provider? Send them to josh.brokaw@truthsayers.org.

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