By Josh Brokaw
Cayuga Medical Center’s second trial before a federal judge in less than a year began again on Monday, Feb. 27. Karen Ames, CMC’s chief patient safety officer, was on the stand for most of the afternoon, with a brief appearance by John Turner, CMC’s vice president of public relations.
This National Labor Relations Board [NLRB] trial is to determine whether Anne Marshall and Loran Lamb, two CMC nurses, were illegally fired by the hospital in October 2016 because of their union organizing activity. CMC management maintains that the two nurses were fired because of a blood transfusion incident, when the two nurses didn’t follow a protocol that they both be in the room to check the patient’s information against that on the blood bag.
For readers who would like to catch up on this trial, the place to start is still my story on the two nurses’ termination from October, along with daily updates from the first week of this trial.
The task before attorneys for the NLRB and for SEIU Local 1199, the union that’s been trying to organize CMC nurses since early 2015, is not to prove that the two nurses didn’t break a hospital policy – that’s been admitted – but that what they did was common practice. The NLRB and the union want to demonstrate that the hospital has not fired nurses for errors as egregious or more so, but instead used those incidents as learning opportunities. And, according to documents NLRB attorney Jessica Noto filed in federal court last week supporting the nurses’ back-to-work injunction, the NLRB believes that Ames and Turner “conducted an investigation with a predetermined outcome” to provide reason for firing the two nurses.
Here’s an excerpt from the NLRB argument in that injunction filing, based on three affidavits taken from CMC nurses who were questioned by Ames during the investigation:
… the RNs testified that they each informed Ames that ICU nurses perform the blood check for transfusions at the nurses’ station when it is busy on the unit. An RN also testified that she communicated to Ames that she normally checked blood for a transfusion at the nurses’ station and had only begun checking blood at patients’ bedsides that very day when she learned it was an issue to do otherwise. One of the RN’s stated that Ames responded to this information by asking, “So you check blood at the bedside?” The RN repeated to Ames that she had been doing the check at patients’ bedsides that day but had not always done so in the past. She attested that Ames repeated the question several more times, and that she gave the same answer each time. Eventually, she said “message received” to Ames and ended the conversation.
On the stand Monday, Ames said she “presented results of the investigation” to a “peer review” committee of nurses, but did not sit in on decision-making meetings when the two nurses were fired.
“My role has nothing to do with discipline,” Ames said.
Ames was asked by Noto and SEIU 1199 attorney Mimi Satter for her recollections of other investigations she had led, trying to determine how much of a special case it was that Ames conducted the investigation in question. Noto entered numerous exhibits into evidence based on other internal “incident reports” over recent years at the hospital,at least 50 of them. Noto would point Ames to a specific exhibit and ask her to read along as the attorney cited a line, then asked if Ames recalled the specifics of the incident. Mostly, Ames could not.
In some cases, Noto asked whether “anyone was terminated as a result of this particular incident?” and Ames pleaded ignorance. At other times, Noto asked whether Ames, who is not a nurse or doctor, knew what a particular drug is or what it does, or to agree with her that, say, medication improperly administered could cause harm. In some cases, Ames pleaded ignorance; at other points, she agreed with Noto’s statement. At one point, Noto asked “Do you remember this particular incident?” about five reports in a row and Ames said she could not in all cases.
By the end of more than three hours of questioning, Noto and Satter had prompted Ames to say she remembered specifics of about three incidents, in her almost seven years at CMC.
It was Ames’ testimony that she spends perhaps five hours a week on investigations, with her role focused more on “guidance” and “strategy.”
The NLRB and union attorneys pressed the question to Ames more than once why she was put on this particular investigation. All of the incident reports, Noto said and Ames agreed, were violations of “red rules,” rules in nursing that can’t be broken or serious harm will be caused.
“This incident with Ms. Marshall and Ms. Lamb was far more than a red rule investigation, so I was brought in for the investigation,” Ames said once. Satter later asked Ames to expand on the difference between this investigation and other red rule violations.
“Because with this involved was a total system failure,” Ames said. “This was a situation where we had a high-risk procedure that was being done, it posed a potential lethal situation to the patient, we had the red flag of the patient speaking up and saying ‘Wait a minute, this isn’t being done right,’ and we had falsification of a record. So this was not just a red rule violation, this was a total system process failure.”
“Did the patient suffer any harm?” Satter asked.
“No, the patient did not,” Ames said.
“And with the various incidents reports that we looked at, would you agree with me that multiple patients suffered harm?” Satter asked.
“In some of them,” Ames said.
“Yeah, patients got the wrong medication, correct?” Satter asked.
“They got the wrong dosage of medication?” Satter asked.
“Correct,” Ames said.
“The wrong patient was tested?”
“Medication or treatment was delayed by even hours or even days, correct?” Satter asked.
“Correct,” Ames said.
“Those are all serious, aren’t they?” Satter asked.
“They are serious,” Ames said.
We’ll take a look at Turner’s testimony later in this week; CMC’s top press man said some interesting things about rumor management procedure at Tompkins County’s only hospital.
This National Labor Relations Board [NLRB] trial began on January 9 and continued for four stop-and-start days before taking a six-week recess. The trial was held Monday at the Ithaca Tompkins airport’s administration building, where it will be held again on Tuesday, Feb. 28, and on Thursday, March 2, as well as March 6 & 7 of next week. The trial will be at the Tompkins County courthouse on March 1 & 2, then in King-Shaw Hall at Cornell’s Industrial Labor Relations school for the last three days of next week.
The hearings are open to the public, if anyone would like to watch this reporter’s recorder for a while and experience the excitement of a real federal hearing.