Union retaliation or fair termination at Cayuga Medical Center? Judge now has case

ITHACA, N.Y. — A National Labor Relations Board hearing regarding two nurses who were fired from Cayuga Medical Center concluded Tuesday after weeks of testimony.

Administrative Law Judge Kimberly Sorg-Graves, who presided over the case, must now decide whether allegations that Cayuga Medical Center fired two nurses because they were union supporters are valid, or if the hospital was justified in terminating the nurses who violated blood transfusion policy and falsified documents.

The hearing initially began in January and intermittently continued until Tuesday at various locations in Ithaca. Dozens of witnesses testified in the trial, including the nurses involved, other nurses in the Intensive Care Unit and administrators. The sister of the patient who filed a complaint about the blood transfusion also testified. Due to health reasons, the patient did not testify.

A decision in this case could take months. After the last NLRB hearing involving Cayuga Medical Center, it took about five months for a decision to be released.

The hearing has been long and detailed, but below is a breakdown of important aspects of the case.

Where does this case start?

Though that’s probably the simplest question in this case, even it could have different answers depending on who you ask. For the nurses involved and 1199 SEIU United Healthcare Workers East, which brought the charges against Cayuga Medical Center, the case starts long before the blood transfusion and patient complaint. It starts with nurses’ efforts form a union at the hospital, beginning around 2015, and the hospital’s former retaliation against union organizers, as found by a judge in the last NLRB case.

The two nurses who were terminated were Anne Marshall, a vocal union advocate, and Loran Lamb, also a union supporter, but less vocal about it. Last year, a judge found that Cayuga Medical Center violated federal labor law by retaliating against nurses involved in forming a union. The decision, released in late October, stated that Marshall received an unlawful suspension, disciplinary warning, demotion and adverse performance evaluation.

However, Cayuga Medical Center is adamant that this case began when a patient complained to the hospital about a blood transfusion she received in September. The hospital investigated the patient’s concern and ultimately found enough cause to terminate Marshall and Lamb, administrators testified.

Cayuga Medical Center said the fact that the nurses involved in the complaint were union supporters made the hospital more careful with this case, Raymond Pascucci, the attorney who represented Cayuga Medical Center said.

Pascucci told the judge that the last thing they wanted “was to be in front of a serious patient complaint involving Ms. Marshall because CMC fully understood that any negative consequences resulting from this incident and patient complaint for Ms. Marshall would lead to an accusation that management was targeting her and retaliating against her due to her protected union activity.”

Blood transfusion policy

A central question in this case has been whether it was common practice for nurses to violate Cayuga Medical Center’s blood transfusion policy. While nurses have testified saying it is the case, administrators said they found no evidence that nurses violate the policy when investigating the patient complaint. First, it’s important to understand the policy.

When a doctor orders blood for a patient, a carrier brings the blood from the blood bank to the unit. It is then the responsibility of two nurses to make sure the correct blood is going to the correct patient. If a patient receives the wrong blood, it could be fatal. A medical director, who wrote the hospital’s policy, testified at length about why the policy is in place.

According to hospital policy, blood or blood products being used in a transfusion must be checked twice, first outside the room, and then again at the patient’s bedside. According to testimony, nurses will typically check the blood at the nurses’ station outside the room, and compare the patient’s name, date of birth, consent form, account number, the expiration date of the blood and other information. After doing that, the two nurses are then supposed to go into the patient’s room together and check additional information to verify the patient’s identity, like checking their wristband and verbally asking them their name and date of birth if they’re conscious.

While doing all the checks, the nurses must also sign off on a blood transfusion card to verify they have done the checks.

However, what some nurses have testified, including the two who were terminated, is that they do all the checks and sign off on everything at the nurses’ station before entering the room, and instead of both nurses doing the bedside check, just the primary nurse will enter to hang the blood and verify the patient’s identity. Nurses have said this way has become common practice, and have cited short staffing as a reason for just having one nurse enter the room.

The blood transfusion on Sept. 11, 2016

Cayuga Medical Center launched an investigation after a blood transfusion performed Sept. 11, 2016, by Marshall and Lamb.

The patient who received the transfusion had cancer and was very familiar with the process. She had received at least 10 blood transfusions prior to the transfusion on Sept. 11, according to Deb Raupers, vice president of patient care services at CMC, who testified Tuesday.

Typically, the patient wrote in a statement, the nurse would call for blood, give the patient Tylenol and Benadryl. When the blood would arrive, she said, two nurses would be in the room to scan her name band, ask her name and birth date and compare it to the paperwork. They would then read the numbers on the blood bag and compare it to the paperwork numbers, the patient said. If everything matched, then the nurses would start the blood.

However, when she received her transfusion on Sept. 11, according to her statement she said “Nurse calls, we wait. My sister and aunt were in the room. The nurse comes in hangs the bag and starts the blood. I looked at her and said ‘What about the protocol?’ And she said ‘Oh, we did that at the desk.’–and left the room. My sister, who is an RN in the state of Maine, ran over to the blood to check the numbers. I said ‘This isn’t how it’s ever been done.’”

The patient said in the complaint that she felt vulnerable in her bed that day and wanted the hospital to be aware of the breach in protocol.

Marshall and Lamb do not deny that they did not do the two-nurse bedside verification. However, Marshall testified that she did check the patient’s identity before hanging the blood.

Was it common practice to violate the policy?

There has been evidence on both sides of this question.

Early in the hearing, nurses testified saying it is common practice to perform the blood transfusion in the way that Lamb and Marshall did in September. Marshall and Lamb have also testified to that, and Marshall told the same thing to administrators when she was interviewed about the transfusion before she was terminated.

However, administrators who have testified during the hearing say they have found no evidence it is common practice.

Karen Ames, director of quality and patient safety at Cayuga Medical Center, led the investigation after the patient complaint. When interviewing other registered nurses in the Intensive Care Unit, Ames said, none told her they did not perform the two-RN bedside check. Ames also said there were no other complaints of nurses not performing a two-nurse check at the bedside.

Ames said she concluded that Marshall took it upon herself to “bypass a safeguard in place and disregard following protocol,” and that there’s no excuse for not following protocol when the consequences could be “catastrophic.”

At the end of the hearing Tuesday, Jessica Noto, field attorney for the NLRB, asked Raupers one last question based on her evaluation at Cayuga Medical Center. Noto asked her about a comment in her evaluation that said she did an exceptional job facing “labor organizing threats” at Cayuga Medical Center. And that she specifically handled the blood transfusion incident well.

Raupers initially said she did not recall that comment. But, when handed the document, she remembered.

When Pascucci further questioned Raupers on the evaluation, he asked her to read the end of the comment, which said she was able to separate the fact that an individual involved was a union organizer from the facts of the case.

Asked further about that, Raupers said she was able to separate union allegations completely from the investigation into the blood transfusion.

Raupers was ultimately responsible for determining the discipline for the nurses.

What happens next?

It could take several months for a decision. In the meantime, Marshall and Lamb have been reinstated to their positions after a federal judge granted an injunction.

U.S. District Judge Thomas McAvoy granted an injunction ordering Cayuga Medical Center to reinstate the two nurses pending a final administrative court decision on charges of unfair labor practices by the hospital.

The Tompkins County Workers’ Center has uploaded the full decision here.

Keep up to date on any documents released in this case on the NLRB case site here.

Attorneys on both sides of the case have 35 days to send briefs to the judge. The parties could also still choose to settle the case before a decision is made.

This case has been long and detailed. You can read more in-depth summaries of testimony and evidence presented throughout the hearing below.