CORRUPT DEFEAT OF NEW JERSEY'S CONSCIENTIOUS EMPLOYEE PROTECTION ACT

CORRUPTION OF FORMER(RETIRED)
OCEAN COUNTY SUPERIOR COURT
 JUDGE EDWARD OLES

In this web site I make a claim of corruption of the New Jersey judiciary that reaches to the state supreme court. In order to either validate or reject my claim of corruption one must understand the simple law that is associated with my whistle blowing case, therefore for those who are unfamiliar with legal terms I will make an effort to educate in that regard.

Someone who files a lawsuit is known as the plaintiff, and the person who is being sued is known as the defendant.

Soon after a lawsuit is filed a period known as discovery begins that may last a year or more. During discovery both the plaintiff and the defendant assemble evidence in order to support their cases in court; some of this evidence is obtained via sworn depositions. At the end of discovery a defendant usually asks the pre-trial judge who is assigned to a litigation to dismiss a lawsuit on the grounds that it is legally unfounded; in response to this request by the defendant the plaintiff makes an effort to demonstrate to the pre-trial judge that he (the plaintiff) has established all the legal elements in order to present his case to a jury.

After examining the evidence the pre-trial judge will either grant the defendant's request (known as granting Summary Judgment in favor of defendant), or will allow a plaintiff's case to be presented to a jury because he (the plaintiff) has established the required legal elements; I will explain shortly the term legal element.
 

Ocean County(New Jersey) Superior Court Judge Edward Oles (hereinafter Oles) who lives on Frann Road, Toms River was the pre-trial judge who was assigned to my case, and he dismissed my case on the grounds that I had not established all the required legal elements in my case.

In order to be relevant evidence must tend to either establish or prevent the establishment of a legal element.

It is incorrect to state that judicial discretion allows judges to disregard clear and convincing relevant evidence. For example, discretion does not allow a judge to disregard tangible evidence that supports the establishment of a legal element.   

Judicial discretion also does not allow a judge to prejudicially treat relevant evidence. For example, suppose that the shape of a full moon is relevant to a litigation; discretion does not allow a judge to agree with a litigant that a full moon has the shape of a square. The aforementioned judicial agreement is prejudiced because it disregards the fact that contradicts it. 

If a well-connected party to a litigation benefits from judicial prejudice a rational observer could conclude judicial corruption. If a well-connected party to a litigation benfits from gross judicial prejudice judicial corruption cannot be credibly denied.

It is also incorrect to state that judicial discretion allows judges to disregard the clear and established intent of law. 

It is well established that the whistle blowing law in New Jersey was passed in order to benefit society via the conscientious actions of others. Case law that resulted from judicial decisions has established that the whistle blowing law must be liberally interpreted by judges in order to encourage conscientious whistle blowing that ultimately makes possible the achievment of the law's social goals. 

After reviewing this web site's pages and its links readers should be able to conclude if the judges who were associated with my case liberally interpreted the whistle blowing law, or deliberately defeated that law.  
       
When Oles dismissed my case he issued a written opinion in which he explained his decision, and that opinion is presented on this page.

Interrupting Oles' opinion throughout its presentation will be my explanations of Oles' statements and omissions. Some of my explanations will be accompanied by presentations of the same evidence via links that I presented to Oles before he dismissed my case.

I will present no evidence on this page that I did not present to Oles. It remains for the reader to decide if Oles was a corrupt judge who protected Community Medical Center (hereinafter CMC) regarding the violation of civil and/or criminal law. 

A uninterrupted copy of Oles' written opinion is also presented (
click
to read a photocopy of Oles' uninterrupted written opinion, then click the Back button to return to this presentation).  

Oles' written opinion begins:
    
       
Please accept this letter as a disposition of the Motion for Summary Judgment filed by the Defendants in the above-captioned matter.

In a 15-Count Complaint, the Plaintiff alleges that the Defendants retaliated against him by discharging him from employment after he had complained to the State Board of Health in November 2000 relative to the use of diapers for adult patients. The Complaint, in essence, alleges a violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. In addition, the Plaintiff alleges that his guarantee of due process under the 14th Amendment of the United States Constitution was violated, as well as his due process rights under the New Jersey Constitution.

Additional torts of interference with an advantageous business relationship was pled, as well as harassment; intentionally inflicting of emotional distress upon the Plaintiff; the negligent infliction of emotional distress; unjust work evaluation of the Plaintiff; wrongful discharge of the Plaintiff; breach of an implied employment contract; and defamation of character.

I am obligated to view the evidentiary material presented on Defendants' Summary Judgment Motion in a light most favorable to the Plaintiff. Brill v. Guardian Life Insurance Company of America, 142 N.J. 52U (1995).

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Explanation
Oles is stating his intention to give me the benefit of the doubt if my arguments and the defendants' arguments are equally credible regarding disputed facts. 

However Oles cites no case law whatsoever regarding the whistle blowing law, nor does he cite the well established legislative intent that the whistle blowing law be liberally interpreted in order to encourage and to protect conscientious whistleblowers.

Case law pertains to judicial decisions that establish precedent; judicial actions and positions cannot legitimately depart from precedent, and a rational reader of this page will later recognize that Oles did not mention well-established relevant case law because of his intention to depart from precedent.       

Oles' written opinion continues:

In the summer of 1991, the Plaintiff commenced his employment at Community Medical Center as a registered nurse. In June 2000, he was assigned to Unit 5C at the hospital. As part of the care that he was responsible for was the administration of medication, including narcotics to the various patients.
The hospital utilizes an inventory control machine for its nursing units floor stock of narcotics/drugs called a "Pyxis" machine. The narcotics are contained in a locked drawer and can only be accessed through the use of the computer. Each computer maintains a record of the drug withdrawn, the nurse who withdrew it, the patient for whom the drug is prescribed for, and the amount of the prescription. In order for Mr. Miller to perform his duties as a nurse in the administration of narcotics, he must first enter his personal identification code into the computer and then enter a secret password. Purportedly the secret password is known only to the individual nurse. Thus, Mr. Miller would be responsible and held accountable for all transactions in the computer done under his password.

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Explanation
A piece of evidence that I presented to Oles was a statement made under oath by one of my former nursing instructors; the statement demonstrated the ease of identity theft at CMC (
click to see that statement
, then click the  Back button to return to this presentation).

A photograph of the actual Pyxis narcotic cabinet was also presented to Oles in order to support my claim that a bystander could easily see the typed entry of a nurse's secret password (
click to see that photograph 
, then click the Back button to return).

Nevertheless, a victim of identity theft would according to Oles (and to CMC) be held accountable for the illegitimate use of his (the victim's) identity.

I presented detailed evidence to Oles that will also be presented herein that supported my claim that CMC arranged the theft of my identity that was then used to set me up for a theft of morphine that resulted in my immediate suspension, but Oles makes no mention in his written opinion of the evidence offered that supported my claim of set up, nor does Oles merely mention my claim of set up.     

Oles' written opinion continues:
  
In addition to the procedure for the removal of drugs for use by patients, the Defendant-Hospital required that narcotics administered to patients be charted in the patients records. The time that the medication was given, as well as the amount, are to be recorded simultaneously with the event.

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Explanation
I claim that Oles’ written opinion is completely irrelevant to my case, meaningless, deceiving, and knowingly false in some instances; in order to validate or refute my claim it is obviously necessary to understand the evidence,  but it is also necessary to understand the term legal element.

In order to win a trial a plaintiff must prove to a jury all of the legal elements that are associated with his case.

For example, in a whistle blowing litigation there are four legal elements that must be proven; if a plaintiff fails to prove merely one of the four he loses his case.

A defendant can successfully defend against a whistle blowing claim by demonstrating that a whistle blower has failed to establish at least one of the required legal elements.

The legal elements that are associated with the whistle blowing law (also called the Conscientious Employee Protection Act, also called CEPA (NJSA 34:19-1 et seq.)) can be found at the official New Jersey Judiciary web site
www.judiciary.state.nj.us/civil/charges/2.32.doc); the legal elements for CEPA found at that site are specified in what is known as Model Civil Jury Charges/ section 2.32.

I have also included a copy of the specific jury charge/legal elements for CEPA in this web site (
click in order to see those jury charges that are specific to this case, then click the Back button to return).

The legal elements that are specific to my case involve a licenced health care provider and an associated code of ethics, therefore the legal elements accordingly involve NJSA 34:19-2(f) and NJSA 34:19-3(c)(1).   

Oles’ statements in his written opinion must pertain in some way to  the legal elements that are associated with my case; statements that do not pertain to any of the legal elements of CEPA are irrelevant. I now identify and explain the legal elements of CEPA and how they were established at the time of Oles’ dismissal of my case; my explanations can be verified by visiting the official New Jersey judiciary web site.

LEGAL ELEMENT #1.

I had to demonstrate my qualifications to form a reasonable belief that the use of diapers on bedridden patients at CMC was improper care and a violation of the nursing code of ethics; allowing patients to lie for prolonged periods in their concealed wastes was presumably undisputed regarding a question of improper care, nevertheless section 3.5 of the Code of Ethics for Nurses states that:
 
"as an advocate for the patient, the nurse must be alert to and take appropriate action regarding any instance of incompetent, unethical, illegal, or impaired practice..that places the rights or the best interests of the patient in jeopardy" . 

(
click to see a copy of section 3.5 of the nursing code of ethics)

The only relevant issue in the context of reasonable belief was my qualified belief; no one else’s belief was relevant to this case.

However, I had to demonstrate that I was qualified to form a reasonable belief that applying diapers to bedridden patients who were known to be incontinent was detrimental to their welfare.

At the time of my diaper complaint auxiliary bed fabrics known as  chuxs were used at CMC that served two purposes:

1) in case of incontinence the chux in most instances prevented a complete change of bed sheets that would otherwise have been soiled;

2) bedridden patients need to be positioned or moved while they remain in bed, and the chuxs served as slings that precluded pushing or pulling a patient’s body that would harm fragile skin via friction with underlying bed sheets.

Based upon my ten year experience as a bedside staff nurse at CMC I knew that the application of diapers to motionless, bedridden patients was not only unnecessary but that such application concealed and enabled wastes to remain in prolonged contact with the skin that demonstrably caused the breakdown of that skin.

The evidence that supports my qualification for forming my reasonable belief includes the deposition testimony from one of my last nursing supervisors at CMC Jane Backus (click to see pages 9, 10, and 44 of Backus' deposition testimony, then click the Back button to return). 

Deposition testimony is made under oath outside a courtroom during the discovery period. During the depositions in my case the only people present were the two opposing lawyers and their clients, the person giving testimony, and a stenographer.

I also provided evidence to Oles that I was certified in critical care nursing; this certification is granted to registered nurses who work in an intensive care unit (ICU),  in a cardiac care unit (CCU), or in an Emergency Room (ER) who also demonstrate an advanced knowledge of pharmacology and the disease process (click to see a copy of my certification card, then click the Back button to return).

Therefore it would seem that the first legal element was established in my case.

LEGAL ELEMENT #2.

The next element that I had to establish was that I actually made a complaint to the New Jersey Department of Health and Senior Services.

A letter from the Department of Health and Senior Services dated 31 January 2003 confirms that my complaint about diaper abuse at CMC was made on 21 November 2000 (
click to see a copy of that letter, then click the Back button to return).

The second legal element was clearly established.

LEGAL ELEMENT #3.

The next element that I had to establish was that an adverse employment action was taken against me.

It is undisputed that I was first suspended immediately after the morphine thefts in this case (
click to see a letter written by a CMC security representative about my suspension).

It is also undisputed that I was fired for being a 'substandard record keeper' as a result of the investigation into the morphine theft (
click to see a copy of my termination letter).

Suspension and termination are presumably undisputed to be adverse employment actions.

The establishment of the third legal element involving adverse employment actions is not disputed.

LEGAL ELEMENT #4.

The adverse employment actions mentioned above can be shown to be retaliatory if a causal connection to the whistle blowing can be demonstrated to exist.

A causal connection can be rationally concluded if the adverse employment action is an employer’s response to a trivial offense, or is shown to be contrived*, or is shown to be discriminatory.

*In my case an effort was made to force my resignation from CMC after the set up for morphine theft. After my refusal to resign CMC conducted an irrelevant investigation of my nursing records and found the commonplace oversights that were used as an excuse to terminate me. 

In consideration of Oles’ stated intention to view the evidence "in a light most favorable to plaintiff"  a rational observer might presume that Oles in his written opinion at least mentions claimed evidence of a causal connection. Oles’ written opinion however contains no mention whatsoever of the evidence that supported my claim of causal connection


Oles' written opinion continues:  

In November 2000, the Plaintiff registered a complaint with the New Jersey Department of Health regarding the use of diapers on patients at the hospital. This notification of the complaint was given to a Nancy Wollen, an employee of the hospital. This was accomplished by way of a letter dated November 27, 2000.
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Explanation

Oles refers to Nancy Wollen as "an employee of the hospital", however Nancy Wollen was more than an employee of CMC; Nancy Wollen (hereinafter Wollen) was the executive director of CMC.

An argument that CMC tried to advance is that Wollen may have been aware prior to my suspension of my complaint to the Department of Health, but that she was not involved in the decision to suspend me.

I informed Wollen of my complaint to the Department of Health in a letter dated 27 November 2000 (
click to see a copy of that letter).

My complaint with the Department of Health was registered 21 November 2000. 

CMC nursing administrator Lauren Burke (hereinafter Burke) suspended me, but CMC claimed that Burke was unaware prior to my suspension (and termination) of my complaint to the Department of Health. 

In response to my 27 November letter to Wollen I was summoned to a meeting in Burke's office one week thereafter on Monday 4 December; the following day I sent a follow up letter to Burke, but I forgot that the month had changed and I mistakenly dated the letter 5 November. 

However that letter mistakenly dated 5 November was subsequently sent to the Human Resources Department at CMC where it was date-stamped 8 December 2000 and included in my personnel file (
click to see a copy of that letter that was  labeled D0103 by CMC's attorney in this litigation). 

The attorney for CMC sent a letter to me identifying enclosed materials as my personnel file containing pages labeled D0075-D0296 (
click to see a copy of that letter in order to verify that the the follow up letter mistakenly dated 5 November was included in my personnel file).

Burke testified that she was unaware until the first deposition in this case of my concern regarding the use of diapers (
click to see that transcript segment). 

Burke later testified at trial that until the first deposition  in this case she was unaware of my complaint to the Department of Health; the first deposition in this case occurred eleven months after I filed litigation (
click to see a photocopy segment of Burke's trial testimony). 

Presumably rational readers recognize Burke's obvious lie that she was unaware of my whistleblowing, because Burke's testimony is inconsistent with competent legal representation that would have determined Burke's knowledge of my complaint (whistleblowing)shortly after the filing of my litigation.  



Oles' written opinion continues:

On April 26, 2001, the Department of Health investigated the complaint and determined that the patient care provided by the Defendant-Hospital was appropriate.
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Explanation

The findings of the Department of Health were unquestionably irrelevant to this case; only my qualified belief was relevant to this case. Arguably Oles is defending CMC by making the irrelevant statement about the Department of Health's conclusion, and he is seemingly attempting to justify his obvious intended dismissal of my case.     

The Appellate Division court that reversed Oles' dismissal of my case made no mention of the Department of Health's conclusion for the reason that it was in fact irrelevant; that court's written opinion will be presented later on a subsequent page that addresses that court's actions. 


Oles' written opinion continues: 


In addition to the complaint to the State Board of Health, Mr. Miller also made various internal complaints to the administrators at the hospital. The internal complaints consists of his concern over the status of a bag-valve device stationed on nursing units; the fact that his nursing co-workers had poor understanding of physiology and pharmacology; that the nursing staff was poorly educated as well as his concern for the use of diapers on patients.

On January 7, 2001, a nurse by the name of Delia Caballero was working in the same unit 5C as that of the Plaintiff. She began to direct her attention to a patient designated as "Patient A". When she addressed the patient's record on the computer, she had noticed that at approximately 6:58 p.m. a 30 mg vial of morphine had been withdrawn for Patient A, even though the patient was not prescribed morphine. This discrepancy was reported to her supervisor and a subsequent investigation revealed that at approximately 6:54 p.m., a 2 mg syringe of morphine was removed from the narcotics drawer for a Patient B under the Plaintiffs secret password. Thus, between the period of 6:54 p.m. and 6:58 p.m. on January 7, 2001, there were two vials of morphine removed from the narcotics drawer for two patients using the Plaintiffs secret password. Neither of these two patients had a doctor's order for morphine.

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Explanation
Rational readers will recognize after reviewing the evidence of criminal set up that Oles at this point in his written opinion is beginning his attempted concealment on behalf of CMC of evidence regarding the commission of a crime.

Nurse Caballero discovered the morphine theft as a result of an action that was much more than merely directing her attention to Patient A; Caballero discovered the morphine theft as a result of performing an impractical, non-routine, and against-policy procedure coincidentally two hours after the morphine theft occurred that coincidentally involved one of her assigned patients. 

  
Oles also mentions my concern regarding the standby status of a piece of equipment known as a bag-valve device, a status that may be unchanged to this day (
click to read an explanation of the bag-valve device, then click the Back button to return to this presentation).  

Note: Readers who link to the explanation of the emergency bag-valve device will recognize the analogy of a combat soldier patrolling in enemy territory with a disassembled weapon; when bullets start flying easy tasks under normal conditions, for example assembling a rifle, presumably become difficult.  

Oles erroneously stated that two vials of morphine were stolen; in fact, one 30 mg vial of morphine was stolen along with one pre-filled 2 mg morphine syringe; however this errorenous statement by Oles is clearly unintentional.

Oles' written opinion continues:

The next morning, the Plaintiff was confronted with the discrepancy in the computer records and the fact that morphine had been removed from the narcotics drawer under his secret password. Plaintiff was unable to explain the discrepancy. As a result, the Plaintiff was suspended pending further investigation by the hospital.

The incidents of January 7, 2001 resulted in an investigation undertaken by the Administrator-Director of Critical Care, corporate security for the St. Barnabas Health Care System and investigators from the New Jersey Department of Law and Public Safety. This investigation revealed discrepancies in the medication records of five additional patients that were under Mr. Miller's care.
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Explanation
Oles is about to repeat the list of my admitted record keeping offenses that was used by CMC to justify my termination for the reason substandard record keeping; however, that list is irrelevant to this litigation because of the reason given by CMC for my termination, namely for being a substandard record keeper.

(
click to see a copy of my termination letter)

I repeat, the list of my record keeping offenses is irrelevant to this litigation. 

I was not terminated for making numerous and serious record keeping omissions, for assaulting my nursing supervisor, for setting fire to CMC, or for any other reason trumped up  after my termination; I was terminated because of my supposedly substandard charting practice.

Therefore t
he only relevant issue regarding record keeping in this case is the presence or absence of a record keeping standard

Only after I filed litigation did CMC attempt to portray my record keeping offenses  as serious and numerous.

Unless a charting standard exists to define substandard charting a rational person might conclude that my termination for being a substandard record keeper was a pretext (or excuse) for retaliation.

It is a fact that no tangible evidence of a charting standard has ever been produced by CMC although the existence of a charting standard was a significant fact in dispute at the time of Oles’ dismissal of my case; Oles makes no mention in his written opinion of that dispute or of the definition of a record keeping standard that in turn defined substandard.

According to CMC the unwritten record keeping standard is perfect charting; anything less than perfect is deemed substandard and presumably indicates termination for all nurses who fail to keep perfect records.

The investigation of my nursing records covered a two-month period during which I admittedly failed to make duplicate records regarding a total of seven narcotics (involving the anti-anxiety agents Xanax and Valium, and the pain killers Percocet and Darvocet) that I administered pursuant to physician orders; in all cases a single record existed regarding those narcotics.

Within the aforementioned two-month period I administered and recorded an estimated minimum 1000 medications during the course of performing my other nursing duties that required frequent adjustment of priorities.

Frequently a nurse had to stand in line to perform the electronic charting that was standard at CMC, and most nurses chose to continue patient care duties and to postpone charting until a later time; it is possible and reasonable that a nurse forgot to perform the charting that was postponed.

Frequently nurses at CMC had to deal with emergencies or help co-workers and postponed charting for those reasons.

Indeed, it was known that record keeping omissions regarding administered medications were commonplace at CMC, because a specific computer printout was utilized that listed unrecorded scheduled administrations of medications that were presumably administered; this printout was known as the Unreported Scheduled Meds list (
click to see CMC policy #M-03 that makes reference to the Unreported Scheduled Meds list).

Presumably a rare occurrence regarding unrecorded administered medications would not necessitate such a specialized printout as the Unreported Scheduled Meds list that was initially generated once per day at 3AM.

Returning day-shift nurses who recognized an unrecorded administered medication on the Unreported Scheduled Meds list would make a late entry regarding a previous day's administration.

A nurse however would not make a late entry regarding an administered medication unless she was aware that such an entry was needed; at the time of my suspension my unit did not employ the Unreported Scheduled Meds list. 

Presumably rational readers recognize inconsistency regarding the existence of the Unreported Scheduled Meds printout and CMC's claim that perfect record keeping (the clamed record keeping standard by CMC) is required in order to remain employed by CMC. 

I presented evidence to Oles that supported my claim that CMC could obtain evidence of substandard charting against any nurse.

I also presented evidence to Oles that the investigation of my nursing records was irrelevant to the detection of narcotic theft, and that such an investigation could not determine my guilt or innocence regarding narcotic theft.   

In order to recognize if CMC conducted a legitimate investigation of the morphine theft one first must understand record keeping at CMC at the time of my suspension.

Narcotic theft in hospital jargon is called drug diversion. Presumably nurses do not routinely steal heart medications, diuretics, or antibiotics that are all classified as being drugs; in the case of such thefts the security department would presumably not become involved unless the thefts occurred in significant quantities, therefore the term drug diversion clearly refers to the theft of narcotics.  

After the end of the 2000-2001 Christmas/New Year holiday season, and after the end of my shift a large quantity of morphine was removed without authorization from my nursing unit’s Pyxis medication cabinet (hereinafter Pyxis); this removal represented the criminal set up for morphine theft that forced my litigation against CMC.

Pyxis is a computerized medication cabinet that keeps automatic records of all medication removals that include narcotic removals. 
Pyxis records show that the aforementioned morphine removal was made by me.

A member of the security department at CMC responded to the unauthorized removal, and he categorized the removal as thefts (
click to see a copy of that security representative's incident report).

Jane Palaia was at that time the head of the CMC Human Resources Department, was at my suspension meeting following the morphine theft, and testified during her deposition that the only reason for my suspension was the
drug diversion (narcotic theft).

(
click to see a portion of Palaia's deposition transcript, then click the Back button to return).

A letter written by corporate security representative Brian McCarthy who responded to the CMC security department’s report of narcotic theft stated in a letter that the reason for my suspension was the drug diversion (narcotic theft)  (
click to see a copy of that letter).

The investigation conducted in response to the drug diversion presumably sought to determine either my guilt or innocence regarding morphine theft, or else it indirectly sought to determine my innocence of morphine theft by seeking the identity of the person who stole the morphine in question; however, this page will demonstrate that the investigation  was irrelevant to the detection of narcotic theft. 

CMC nursing administrator Burke indirectly testified during her deposition that the only way to verify narcotic administration to a patient is to ask a witness to the administration or to ask the patient if he received a narcotic (
click to see that transcript segment).


One of my former nursing supervisors Jane Backus (Nurse B) sent an email to me that supports my claim that records are not proof of administration (
click to see a copy of that email).

A dishonest nurse could remove a narcotic from Pyxis pursuant to physician orders, make an electronic charting entry into the patient’s record that the patient was given the narcotic, make a written entry into the nurse’s note that the patient was given the narcotic, and then keep the narcotic without actually giving it to the patient.

An honest nurse could make a narcotic removal from Pyxis pursuant to physician orders, actually give it to the patient, and forget because of the reality of hospital staff nursing at CMC to make a duplicate record of the administration. 

Rational readers can conclude that the absence of a duplicate record in this case is not evidence that the nurse stole a narcotic.

Rational readers can also presumably conclude that the presence of perfect nursing records does not preclude the possibility of narcotic theft.

Records cannot verify the administration to a patient of a medication or narcotic. 

An investigation of nursing records the content of which a nurse has complete control cannot conclude either guilt or innocence regarding narcotic theft. 

The irrelevant investigation conducted by CMC that directly lead to my termination was evidence of a causal connection between two legal elements; Oles did not have the discretion to disregard that evidence of causal connection.

Oles' written opinion continues:
 

On November 18, 2000, Patient C was prescribed the narcotic Diazepam 5 mg. to be given three times a day. This patient received 5 mg. of the drug at 6:00 p.m. on November 18, 2000 and received 5 mg. of the drug on November 19, 2000 at 10:00 a.m., 2:00 p.m. and 6:00 p.m., as per the instructions of the prescribing doctor. On November 20, 2000, the patient received the medication only at 6:00 p.m. The records, however, reflect that Mr. Miller withdrew Diazepam for this patient at 7:58 a.m. and no entry in the patient's record was made for any administration of the drug. Mr. Miller admitted that he failed to chart the patient's medical records with respect to the time when the drug was given to the patient, and in fact, the drug had been given to the patient more than two hours before its scheduled time.

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Explanation

Although my record keeping is irrelevant I must emphasize that my record keeping offenses were demonstrably meaningless.

For example, Oles states (above):
 
"
and in fact, the drug had been given to the patient more than two hours before its scheduled time". 

Oles seemingly expects the reader of his written opinion to be automatically shocked that I gave the first of three daily doses of diazepam to a patient two hours before its scheduled time; of course there is no reason to be shocked because of my action in this regard, because my action could not have adversely affected the patient in question. 

Note: In no instance was a patient given a duplicate dose of medication, nor did a patient suffer so much as a mild headache because of my record keeping failures.  

During oral argument regarding CMC's request to Oles to dismiss my case Oles attempted to suggest that my record keeping errors were serious; I then challenged him to provide a rationale for his suggestion, and he responded by expressing his fear of narcotic addiction that to knowledgeable nurses and physicians is an absurd suggestion (
click to see that transcript segment, then click the Back button to return).


Rational readers of Oles’ written opinion would look for mention of evidence therein of actual harm or of demonstrated potential harm to patients because of my record keeping practices or shortcomings; those readers will find no such mention because such evidence was not part of the record that resulted from discovery, nor does such evidence exist outside the record. 

Presumably CMC would have provided to Oles such evidence of harm to patients that he in turn would have included in his written opinion.

Yet both CMC and Oles attempted to pronounce my record keeping oversights to be serious (
click to see pertinent deposition testimony by the nursing administrator who fired me). 

Whenever a patient at CMC suffered adverse care the completion of an incident report was required (
click to see a copy of the policy that required such an incident report). 

An incident report was in turn presented to the associated physician.

CMC nursing administrator Burke claimed that my record keeping  oversights were serious record keeping offenses  that potentially jeopardized patients; presumably incident reports were presented to physicians regarding serious nursing failures that jeopardized their patients, however no such reports were in evidence prior to Oles’ dismissal of my case (or afterward).

Either the physicians were kept unaware that their patients suffered potentially serious record keeping oversights that were made by me, or the physicians were not informed because the oversights were in fact meaningless.
 
Rational readers are invited to conclude other possibilities for the absence in evidence of incident reports regarding supposedly serious record keeping oversights.

Besides having at CMC a documented above average knowledge of pharmacology and physiology I also have a degree from Rutgers College where I majored in chemistry.

My technical expertise can also be inferred as a result of my employment by AT&T Bell Labs where I worked for nine years during which time I earned a United States patent (
click to see the cover page of that patent). The training of a chemist requires an understanding of how chemical reactions occur, and I applied that training to understanding how medications (and narcotics) work. 

Oles' written opinion continues:
  

 

 

 

 

 

The investigation further revealed a discrepancy in charting of records for a patient designated as "Patient D". This patient was to receive Diazepam of 5 mg. to be given 30 minutes before an MRI was to be performed. At 8:31 a.m. the following morning, the Plaintiff withdrew the narcotics from Pyxis. However, Mr. Miller failed to chart the drug and the time of administration. The records reflect that the drug was withdrawn while the patient was at the MRI procedure and there was no indication as to whether or not the patient received the drug before the performance of the MRI.
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Explanation

Other than the word of Burke there is no record or evidence that the above patient was already at the MRI procedure at the time that I removed the narcotic diazepam from the Pyxis.

At the trial Burke repeated the allegation that I removed the diazepam (Valium) from Pyxis for Patient D while the patient was already  "in the MRI tube". 

The implication of Burke's statement (above) is that I removed the Valium with no intention of giving it to Patient D.  I asked Burke at trial if she had evidence to support her allegation; she responded that she had a record of a time stamp, but that she did not have that seemingly crucial evidence for production at trial (
click to see a photocopy of the transcript regarding my exchange with Burke regarding this issue).
 
Oles repeated an allegation against me regarding Patient D that was supported only by the word of Burke.       

Oles' written opinion continues:

There is a subsequent failure to chart the medical records of Patient D on January 1, 2001 with respect to the administering of Diazepam. In both instances, the Plaintiff admitted that he did not properly chart the patient's record.

The next discrepancy involves Patient E. This took place on or about November 12, 2000. The patient was prescribed a narcotic Alprazolam consisting of .25 mg. to be given at 6:00 a.m., 2:00 p.m. and 10:00 p.m. Mr. Miller charted Patient E's medical record that at 2:00 p.m. on November 12, 2000, the patient was given a .25 mg. tablet. However, the computer records for Pyxis reflected that the Plaintiff did not withdraw that drug until 4:15 p.m. This revealed an inconsistency between the charted records and the computer records.

***********************************************

Explanation

It was common for patients to be out of their rooms for testing at the time that schduled medications were to be administered. For example, the above Patient E was out of his room when 2PM medications were to be administered. When Patient E returned to his room at about 4PM I removed the narcotic alprazolam (Xanax) from the Pyxis; after giving the Xanax to this patient I entered into the computerized record keeping system that his 2PM scheduled medication had been administered; the time notation was automatically made by that record keeping system. 

CMC policy indicates that a 2PM scheduled medication can be given between 1PM and 3PM and that the record of administration be merely charted as GIVEN or NOT GIVEN; no other documenation is required in this instance (
click to see a copy of that policy).
 

(
click to see a copy of a patient record that demonstrates that exact times of administration are not recorded, for example see the entries at 10PM, 2PM, and 6AM). 


There was also no pharmacological rationale for recording an exact time of administration of the Xanax in question. Again, Oles seemingly expects the reader of his opinion to be shocked at my record keeping action regarding Patient E.


Oles' written opinion continues:

On November 13, 2002, there is an additional discrepancy with respect to the patient's medical records. The patient's medical records reflect that the Plaintiff gave the drug at 2:00 p.m., yet the computer records from Pyxis reflect the drug was not withdrawn until 4:45 p.m.

On December 30, 2000, the medical records of a patient designated as "Patient F" who was under the care of Mr. Miller, was given .25 mg. of a narcotic drug Alprazolam. This was administered to the patient at 5:00 p.m. on the date in question. The records further reflect that there did not exist a doctor's order or a prescription at the time for this particular narcotic.
***********************************************
Explanation

During her deposition Burke testified that I gave a narcotic to a patient without authorization from a physician (
click to see that transcript segment). 

The electronic recording of an administered medication was not possible unless a physician's order existed that made possible that recording (
click to see the recording that was impossible without a corresponding doctor's order, in this case a 5PM recording of alprazolam). 

The above explanation regarding the existence of a physician's order should have been sufficient to demonstrate that a physician order did in fact exist regarding my administration of alprazolam (Xanax) to Patient F. 

Nevertheless, I provided a copy of the physician order in question (regarding alprazolam for Patient F) to Oles who concealed that evidence (
click to see a copy of that order that was included on a DAILY ORDERS SUMMARY printout). 

The physician order in question shows:

1)  that one (#1) 0.25 mg tablet of alprazolam was to be given to
 Patient F every six hours (q6h) as needed (PRN) for anxiety;

2)  that the medication order became effective at 5PM on 30 December 2000;

3)  that the medication order expired at midnight on 6 January 2001; 

4)  and that the physician who authorized the administration of alprazolam is identified as PMSD (Prahbat Sinha, MD).   

Oles' written opinion continues: 

On December 31, 2000, the Patient F was prescribed a dosage of .50 mg. of a narcotic drug Alprazolam. It was to be given twice a day. The Pyxis records reflect that Mr. Miller withdrew two .25 mg. tablets of Alprazolam on December 31, 2000 at 2:42 p.m.; two tablets on January 1, 2001 at 11:04 a.m. and two tablets on January 6, 2001 at 11:00 a.m. A review of the patient's medical records does not reflect that the patient was administered the drugs. Once again, Mr. Miller acknowledged that he failed to chart the narcotic that had been given to the patient.

Finally, Patient G had been prescribed the narcotic drug "Percocef. The records reflect that on December 17, 2000, the Plaintiff withdrew two Percocet tablets for this patient. However, the patient's medical records do not indicate that the drug was administered to the patient.

On April 16, 2001, the Plaintiff was discharged by Community Medical Center through the actions of Lauren Burk, who is the Administrative Director of Critical Care. The reason for the discharge was the substandard nursing practices as it relates to the charting of narcotics. He was given the right to pursue a peer review of the hospital's decision to terminate, but Mr. Miller did not seek such review.
***********************************************
Explanation

Oles makes the irrelevant statement that I did not seek peer review; a check of the legal elements that are associated with this case will verify that the statement about peer review was irrelevant.

The offering of peer review did not negate or forgive the criminal set up for morphine theft. 

There were two investigations conducted in my case: one by Burke, and the other by security representative Brian McCarthy.

At the conclusion of Burke's investigation she sent to me a letter that called upon me to answer to allegations that resulted from her investigation into supposed morphine theft by me (
click to see a copy of that letter, then click the Back button to return). 

I responded in a letter that I would be happy to cooperate with my attorney present (
click to see a copy of that letter, then click the Back button to return).

Burke then responded in a letter that informed me that my attorney would not be allowed to attend a meeting at which I was to answer to allegations (
click to see a copy of that letter).

CMC summoned me to respond to allegations that resulted from an investigation of alleged morphine theft by me, and informed me that my attorney would not be permitted to be present.  

I was not going to discuss at CMC my suspension after being accused of morphine theft or discuss the results of the subsequent investigation without my lawyer being present. 

In the absence of the criminal set up in my case the offering of peer review would not have been necessary if CMC adhered to its own policy that will be explained.

In the CMC Employee Handbook there are written guidelines that specify a five-step disciplinary process prior to termination for documentation offenses (
click to see a copy of those guidelines). 

A perfect charting record keeping standard is inconsistent with the existence of the disciplinary guidelines mentioned above. 

A record keeping standard that requires perfection makes obsolete those guidelines mentioned above.

During her deposition Burke testified that I had never before been disciplined for making record keeping omissions (
click to see a trancript of that testimony, then click the Back button to return).
 
In my case CMC's own policy indicated a written reprimand rather than termination. 

The evidence of criminal set up for morphine theft will be reviewed on this page, and the offering of peer review does not negate or forgive that criminal set up. 

Oles was aware of the evidence of that criminal set up, yet he felt the need to mention that I did not seek peer review.

It could be credibly argued that Oles was implying that this litigation would not have been necessary if I had sought peer review; it could also be argued that Oles was setting up another pretext to dismiss my case.    

Oles' written opinion continues:    

The Plaintiffs performance evaluations were all positive prior to the discovery of these particular discrepancies. He was encouraged to participate in various nursing committees which would provide him with an opportunity to voice his concerns with respect to any internal complaint that he had a concern about.
***********************************************
Explanation

Whether or not CMC encouraged me to participate in various nursing committees is irrelevant to this litigation, and Oles' comment in this regard is not only irrelevant but can presumably be recognized by rational readers to be a blatant and shameful effort to defend CMC by arguably implying that my complaint to the Department of Health would not have been necessary if only I had joined a committee.    

Oles' written opinion continues:   

Plaintiff claims are based under the provisions of N.J.S.A. 34:19-3. He alleges that his notification to the State of Health about the improper use of diapers on patients is a protected activity under this statute.

To establish a cause of action under this statute, a plaintiff must show not only (1) that he reasonably believed that his employer's conduct was violating either a law or rule or regulation promulgated pursuant to law; (2) that he or she performed a whistle-blowing activity described in N.J.S.A. 34:19-3A, C(l) or C(3); (3) an adverse employment action was taken against him; and also that (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Kolb v. Burns, 320 N.J. Super. 467 (App. Div. 1999).

Assuming that the Plaintiff has established a whistle-blowing activity, the Plaintiff has failed to present any evidence in opposition to the Defendants' Motion for Summary Judgment which would support a finding of a causal connection between the whistle-blowing activities and his discharge.
***********************************************
Explanation

Oles just stated that I presented no evidence that would support a finding of a causal connection between my whistle blowing and my termination.

I will shortly review the same evidence of criminal set up for morphine theft that I provided to Oles. I now review the evidence of causal connection that I already presented on this page.

One. CMC did not adhere to its disciplinary guidelines (
click to see those guidelines) in my case after my first official citation (click to see Burke's testimony) in ten years for making record keeping omissions. 


Two. CMC conducted an irrelevant investigation of my nursing records after I was suspended for alleged morphine theft. The results of that irrelevant investigation directly lead to my termination for a reason unrelated to narcotic theft. It is not credible that Oles failed to recognize the seemingly peculiar fact that I was suspended after being accused of morphine theft yet terminated shortly thereafter for being a substandard record keeper. Indeed, Oles was unimpressed when I argued about the irrelevant investigation during oral arguments before him (click to see that transcript segment, then click the Back button to return).

Three
. I argued that CMC conducted its irrelevant investigation because it was known that record keeping omissions were commonplace at CMC, and that an investigation of nursing records would successfully hit any targeted nurse. 

Four. I argued that a record keeping standard did not exist at CMC, therefore that I was fired for a fabricated reason, namely for being a substandard record keeper. I especially argued that a standard of perfect record keeping was inconsistent with the Unreported Scheduled Meds printout.  

Oles' written opinion continues:

The Plaintiff has admitted that he failed to properly chart patient records with respect to the administration of drugs. He was not dismissed because of the alleged theft of drugs, but rather because of poor nursing practices that he readily admitted. There is absolutely no evidence in this case that Plaintiffs termination was a pretext by the hospital for a retaliatory action against him because of reporting certain matters to the Board of Health or, for that matter, internal complaints within the hospital. 
**********************************************
Explanation

Regarding his statement "there is absolutely no evidence"  (above) Oles is clearly a brazen liar. 

Oles was not qualified to judge my nursing performance regarding his statement "poor nursing practices" especially in consideration of his statement on record regarding a fear of narcotic addiction (
click to see the transcript of Oles' statement).   

Oles' written opinion continues:

The complaints to the Board of Health took place in November 2000. It is not until the events of January 2, 2001 unfolded that the hospital commenced an investigation concerning the record keeping of the Plaintiff. That investigation was completed on or about April 16, 2001. The Plaintiff was given the opportunity to discuss the concerns of the hospital, as well as to have a peer review of the allegations presented before him. The Plaintiff made a determination not to seek those particular remedies.    
 ************************************************************
Explanation

It is irrelevant that CMC gave me an opportunity to discuss its concerns; Oles omits mention that the purpose of this 'opportunity' was for me to answer to allegations that resulted from an investigation that was conducted in response to the morphine theft for which I was suspended (click to see the letter that extended to me this 'opportunity'). 


Oles also omits mention that CMC refused to allow my attorney to be present at a meeting at which I was to respond to allegations that resulted from an investigation of the morphine theft that caused my suspension (click to see the letter that informed me that my attorney could not be present).

The offering of peer review was irrelevant to Oles' decision to either dismiss my case or allow my case to be presented to a jury.

The offering of peer review did not negate or forgive the criminal set up for morphine theft.

Oles' written opinion continues: 

As previously noted, I find that the Plaintiff has failed to present any evidence either direct or circumstantial from which a reasonable fact finding can conclude that the Defendants' reasons for discharging him constituted either a post hoc fabrication or that the action was a pretext for his dismissal. This is because the Plaintiff himself admitted that he failed to properly chart the admission of drugs to the various patients.

 

 

 

 

 

 Therefore, Defendants' Motion for Summary Judgment is hereby granted.

 ***********************************************

I again remind readers that a photographic copy of Oles' written opinion can be examined by clicking
 
Readers of Oles' written opinion will find no mention of my claim that CMC set me up for the morphine theft that precipitated this litigation. 

________________________________________________
CRIMINAL RETALIATION BY COMMUNITY MEDICAL CENTER
 
I now present the same evidence of the criminal set up that I presented to Oles before he dismissed my case.   

During oral argument prior to his dismissal of my case I repeated my claim that CMC staged the criminal morphine theft and Oles, who was arguably taunting me, described the staging as a criminal offense (click to see that transcript segment).

Oles stated that the staging might not be a federal offense; he was wrong, because the staging involved the violation of the federal Identity Theft Act (USC Title 18/ section 1028). 

The staging also involved the violation of state law (NJSA 2C: 28-1, theft of identity)(NJSA 2C: 2-6/2C:5-2, conspiracy).

 ----------------------------------------------------------------------------------------
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

Method of discovery

The discovery of the morphine theft was the result of an impractical and non-routine procedure performed by CMC nurse Delia Caballero (hereinafter Caballero).

According to Pyxis records the morphine that was removed (stolen) was for the benefit of a patient identified as Patient A who coincidentally was assigned to Caballero who, also coincidentally, discovered the theft two hours after it occurred.

The computerized medical record keeping system at CMC at the time of the morphine theft was known as MIS. Patient records that included physician orders, lab results, x-ray/CT scan/MRI results, admission information, and medication-administration records were electronically recorded in MIS.

Pyxis was also computerized but only for the purpose of inventory control, and was not connected in any way to MIS. Recall that Pyxis is the computerized medication/narcotic cabinet that functions much like an automated teller machine.   

Important to my claim that CMC staged the morphine theft is the fact that physician medication orders could not be verified by obtaining information from Pyxis; the only information that could be obtained from Pyxis at the time of the morphine thefts were patient names, the names of medications (and narcotics), and the names of medications (and narcotics) that were removed on a patient’s behalf. 

(click to see a copy of the Pyxis activity summary that enabled Caballero to discover the morphine theft).

When a nurse gives a medication to a patient she must know:
 
a) the dosing schedule, for example the dosing schedule might be one dose every four hours;

b) the dose, for example the dose might be (two) 4 mg tablets, or (one) 10 mg tablet, etc.;

c) the route, for example in the case of injectable medications  the route can be subcutaneous or intramuscular or intravenous. 

The Pyxis activity summary that Caballero obtained that resulted in the discovery of the morphine theft could not have provided the dose, the dosing schedule, or the route of administration.      

Also, when a nurse gives a medication to a patient the physician's medication order must be verified and consulted; the Pyxis activity summary could not verify the existence of a physician's order that authorized the administration of a narcotic to a patient.

The Pyxis activity summary that Caballero obtained listed a morphine removal on behalf of Patient A that was not associated with a physician's order, and this clearly demonstrates that medications listed on an activity summary could include medications that were not associated with a physician order.

After my suspension CMC reported the morphine theft to state authorities (
click to see a copy of a letter written by CMC security representative McCarthy).

In the process of the state’s investigation Caballero made a notarized statement in which she described the circumstances surrounding her discovery of the theft (
click to see Caballero's statement).
 
Caballero stated that she obtained an activity summary as a prelude to obtaining a narcotic medication for one of her patients:

"
I went to the Med Pyxis and took an activity summary for this patient so I would know the medication and the last time it was given".  

Contrary to Caballero's statement the appearance of a narcotic on the Pyxis activity summary did not translate to its administration to a patient; this was the premise of Burke's harassing investigation of my nursing records, because in all instances regarding my record keeping oversights there was a Pyxis record of removal, yet Burke claimed that a Pyxis record of narcotic removal did not translate to its administration to a patient.       

Caballero also stated that:

"The patient's ordered pain medication was Darvocet N100".

Contrary to Caballero's statement Pyxis did not contain records of physicians' medication orders, therefore the appearance of Darvocet N100 on the Pyxis activity summary could not be presumed to be associated with a physician's order. 

The stolen morphine in question appeared on the activity summary that Caballero obtained, but it is a fact that the morphine was not associated with a physician's order.
 
(
click to see a blow up of a copy of the activity summary that Caballero obtained)
 
(
click to see an actual physician order that specifies the amount of medication to be administered, the dosing schedule, the date/time when the order becomes effective, the date/time when an order expires, and the identity of the physician who gave the order).

Therefore Caballero's statement regarding her reason for obtaining the activity summary is deceiving to those who are not familiar with nursing practices.

The information that Caballero needed in order to obtain a narcotic from Pyxis could be provided by an MIS terminal that was less than ten feet away from the location where she obtained the impractical activity summary.

Although impractical the Pyxis activity summary did indeed serve one purpose, and that purpose was the discovery of the morphine theft that lead to my suspension. 

On the other hand, the correct prelude of consulting MIS prior to removing a narcotic from Pyxis could not have resulted in that discovery because MIS at the time of the morphine theft did not keep records of narcotic removals from Pyxis. 

The procedure for removing on behalf of a patient any medication from Pyxis is specified by CMC policy #M-15-6 (click to see that policy).

Policy #M-15-6 specifies that the following be checked before removing a narcotic from Pyxis:
1) the Patient's Medical Care Plan;
2) the current order in the TDS.  

At the time of the morphine theft physician orders were not entered into Pyxis that was strictly used for inventory control, and TDS was not an acronym associated with Pyxis.

Policy #M-15-6 refers to TDS that was not a commonly-used acronym at CMC to indicate the system for storing electronic records; instead, MIS was the acronym used to denote the electronic record keeping system at CMC.

Policy #M-15-6 does not specify the obtaining of an activity summary as a prelude to removing a medication for a patient, but rather states that the proper prelude is to always consult the physician's order.

I emphasize again that the activity summary that Caballero obtained listed the illicit removal of morphine that was not associated with a physician order, therefore this fact in itself is evidence that items listed on the activity summary cannot be presumed to be associated with a physician order.    

To summarize, the discovery of the morphine theft that resulted in my immediate suspension was the result of an impractical, non-routine, and against-policy procedure.  

To repeat, readers of Oles’ written opinion will recognize that he makes no mention whatsoever that the discovery of the morphine theft was the result of an impractical, non-routine procedure that coincidentally involved a patient who was assigned to the nurse (Caballero) who carried out that non-routine procedure coincidentally two hours after the occurrence of the theft.

_______________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

Inconsistent stories regarding the discovery of theft

On the evening of the morphine theft a routine, policy-mandated narcotic inventory was not conducted.
 
At the end of each shift an on-coming nurse and an off-going nurse conducted an inventory of the stocked narcotics in Pyxis in order to ensure that the inventory was correct. 

If a Pyxis record indicated that there should be available ten tablets of a particular narcotic, the two nurses physically counted the narcotic tablets in a particular compartment of the Pyxis cabinet to ensure that the Pyxis record was correct. 

It was rare that the physical count did not agree with the Pyxis record.
 
After a narcotic inventory was performed the charge nurse (the supervisor of a nursing unit) examined an end-of-shift listing that shows the narcotics that were inventoried and the narcotics that were removed from Pyxis by the off-going shift (
click to see Burke's testimony about the end-of-shift report).

A segment of the actual listing of the narcotics inventoried and removed on the day of the morphine theft is provided (
click to see that segment); that segment shows the following:

a) a morning inventory of 2mg morphine syringes was conducted by Betty Peterson and Ivette Giordano at about 7AM (06:52:27), and that a total (Ttl) of three syringes remained in the inventory;

(note: standard twelve-hour shifts at CMC indicated that the evening narcotic inventory would be conducted at about 7PM)

b) a 30 mg vial of morphine was removed by David Miller at 18:58:13 (6:58 PM);

c) at the time of the removal of the 30 mg morphine vial by David Miller one vial was removed (Amt), and two (Ttl) 30 mg vials were left behind and remained in inventory;

d) an evening narcotic inventory was performed by Delia Caballero and Nancy Stetz at about 9:40PM (21:40:26);

e) one 2mg pre-filled morphine syringe (1 Amt) was stolen, but two (2 Ttl) were left behind and remained in inventory.


The above segment from the end-of-shift listing on the night of the morphine theft establishes important facts two of which are undeniably peculiar:

1) the evening narcotic inventory was conducted about two hours after the day shift went off duty, not at about 7PM that is the routine;
 
2) the person who stole a single vial of morphine theft behind two vials when the theft of one vial was certain to be discovered and when nothing prevented him from stealing all three vials;

3) the person who stole the morphine vial also stole a single 2mg morphine syringe (pre-filled cartridge and attached needle).

The theft of a single syringe rather than all three that were available to be stolen is undeniably peculiar, and also suggests that the thief needed a re-fill vehicle to use with the vial of morphine.
 
However nurses at CMC at that time had access to a plentiful supply of unmonitored disposable syringes that could have served as refill vehicles, therefore the theft of a single 2mg morphine syringe was needless.

CMC nursing administrator Burke testified that the morphine thefts were discovered as a result of performing a late narcotic inventory (click to see Burke's deposition transcript, then click the Back button to return). 

However Caballero made the discovery after 9PM by obtaining the non-routine and impractical activity summary. 

A narcotic inventory did not determine the narcotics that were removed from Pyxis by an off-going shift, however the end-of-shift listing obtained thereafter did include removal records that were examined by the charge nurse.

An examination of the Pyxis activity summary that resulted in the discovery of the morphine theft shows that Caballero discovered the theft prior to 9:30PM (21:30) since she removed the narcotic Darvocet at that time (
click to see the activity summary).
 
However Caballero was involved with conducting a late narcotic inventory at 9:40 PM (21:40:26), therefore she discovered the theft before an inventory was conducted (
click to see the time that Caballero conducted the inventory).

The obtaining of an activity summary was not associated with the conduction of a narcotic inventory, and the obtaining of an activity summary could not be credibly confused by any nurse at CMC with the conduction of a narcotic inventory.

Burke was one of the two people assigned to investigate the morphine theft, and it would seem unlikely that Burke would fail to determine an important fact about the way that the discovery of the theft occurred.

The other Saint Barnabas Health Care System employee who investigated the morphine theft was former policeman corporate security representative Brian McCarthy (hereinafter McCarthy).

Two days after the morphine theft McCarthy wrote a letter to a superior in which he, like Burke, stated that the morphine thefts were discovered as a result of performing a narcotic inventory, however he did not mention that the inventory was not done according to policy, and was done after 9PM and after I had gone off duty (
click to see a copy of that letter). 

Prior to the dismissal of my case by Oles I requested from CMC's attorney a copy of CMC's investigation report regarding the morphine theft; the attorney responded to me with a letter that included the requested report whose pages were labeled D0297-D0302 (
click to see a copy of that letter that identifies the six-page report). 

Caballero stated that she deliberately obtained the activity summary that resulted in the discovery of the morphine theft (click to read Caballero's statement), however a different story was told to the representative from the CMC security department who responded to the morphine theft.

The aforementioned security representative was told that the nurse was washing her hands and found sheet by mistake (
click to see page D0300 that was one of the six pages of the aforementioned report regarding CMC's investigation of the morphine theft).
 
An attempt was being made after the discovery of the theft to excuse the method by which the discovery was made, namely that the discovery occurred as a result of a mistake.

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

Guns

The representative from the security department at CMC who responded to the morphine incident categorized it on an incident report as a theft (click to see the incident report, refer to box #10 in the upper right-hand corner of the incident report).

At that time the security representative was told that he should know that I read gun magazines, and that I talk to the nurses about my gun collection; the implication to rational readers is that I was being portrayed not only as a morphine thief but that I was a potentially violent offender regarding the use of guns.

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

Fraudulent investigation by Burke

A rational reader could presume that CMC would conduct a credible investigation in response to the morphine theft that precipitated it.
 
In consideration that nurses have ready access to a large supply of narcotics it would seem that CMC would be eager to root out a narcotic thief.
 
A demonstration that CMC conducted a fraudulent investigation of the morphine theft would seem to support a claim that CMC staged the morphine theft.

Burke testified that her investigation focussed on examining the practice of a nurse and the existence of policy violations by a nurse (click to see a transcript segment).

(
click to see another transcript segment regarding Burke's testimony about her investigation)

Rational thought does not allow a correlation between narcotic theft and the violation of hospital policy except perhaps the policy that states that nurses may not steal narcotics.

I knew many bad nurses at CMC, yet I also would not expect a correlation to exist between narcotic theft and poor nursing performance.

Burke provided testimony regarding her efforts to detect narcotic theft that mainly focussed on record keeping (
click to see a transcript segment).
 
However, Burke also provided testimony that narcotic theft can only be verified by questioning a patient regarding narcotics that were supposedly given to him (click
to see Burke's contradictory testimony).
 
Burke also testified about investigating pharmacy technicians, but investigating pharmacy technicians who might have been re-stocking the Pyxis cabinet on my nursing unit earlier in the day could not determine the identity of the person who may have been seen exiting the medication room at the time of the morphine theft (
click to see a photo of the single door to the medication room that could be seen from any location at the nurse station).
 
A pharmacy technician who was stocking the Pyxis cabinet at 3PM could not help identify the person who stole the morphine in question at 7PM.

Burke also testified about looking for inconsistencies; an inconsistency according to Burke is the absence of a duplicate record in the MIS record keeping system corresponding to a Pyxis removal record.
 
I am in fact responsible for seven inconsistencies, yet I was not fired because of narcotic theft but rather for being a substandard record keeper (
click to see a copy of my termination letter).


Presented now is a review of what was not done as part of Burke’s investigation:

No written report
 


Burke testified that she conducted a formal investigation (
click to see that deposition transcript segment) and that she prepared no written report at the conclusion of that investigation (click to see that deposition transcript segment).
 
Other than her word, there is no evidence that she investigated the nursing records of anyone other than David Miller.


No drug testing 
 

Burke testified that I was not tested at the time of my suspension because I showed no signs of being impaired (click to see that deposition transcript).
 
Burke further testified that she was unaware that I could test positive for the presence of narcotics while simultaneously showing no signs of being impaired.

Written hospital policy mandated drug testing in certain situations, and presumably such testing is indicated when suspending a long-time, above-average nurse who is supected of stealing a large quantity of morphine (click to see the policy that required drug testing, the click the Back button to return).  

 

No interviews with the nurses who were present at the time of the theft

The Pyxis cabinet was located in the medication room of each nursing unit.

On my nursing unit there was only one door to the medication room, and it was locked from the outside by a punch-pad combination lock (
click to see a photo of the medication room door).
 
The morphine theft occurred at a time when there were two shifts of nurses on my unit, about ten nurses in a small area.
 
It is reasonable to expect that the nurses present at the time of the theft would have been questioned immediately after the discovery of the theft regarding the possible sighting of someone exiting the medication room at the time of the theft.
 
Burke makes no mention that she questioned anyone as part of her investigation (
click to read Burke's testimony about her investigation).

No inquiry regarding the ease of identity theft

Burke made no mention of an inquiry regarding the possibility that my identity was stolen and then used to steal the morphine in question.
 
Consider the possibility that in fact CMC staged the morphine theft after first arranging the theft of my identity; it is rational to expect CMC to avoid a suggestion that identity theft was either possible or easy.


No inquiry regarding my fitting the profile of a substance abuser

Burke did not consider my documented excellent and long-time reliability, and my documented above average performance (click to see deposition transcript segments by my last nursing  supervisor at CMC)(click to see Burke's deposition testimony that she ignored relevant questioning regarding my habits).


No inquiry of Pyxis removal records

Each time a nurse removed a narcotic from Pyxis a record was automatically made that not only included the nurse’s identity but the name of the narcotic.
 
If a nurse made frequent removals from Pyxis of a particular narcotic that pattern could be recognized, and Burke testified about that pattern that would be investigated (
click to see a transcript segment).

If a nurse was suspected of stealing narcotics she would be monitored regarding her Pyxis narcotic removals, and the associated patients would be discreetly questioned regarding their receipt of those narcotics.
 
Rational readers would want to know how often I made morphine removals from Pyxis prior to my suspension; rational readers would also expect an investigator of the morphine theft to want this information.
 
During discovery I requested the six-month Pyxis record of morphine removals immediately prior to the morphine theft for which I was suspended; however Burke made no investigation of those Pyxis records.
 
Pyxis records show that I removed a single dose of morphine in the five month period prior to the morphine theft that resulted in my suspension. 

Pyxis records show that the single morphine removal in question was made eight weeks prior to the theft (
click to see a record of morphine removals made from my nursing unit's Pyxis cabinet, some of the pages have been overlapped during photocopying, but no record has been deleted).
 
Between 30 July 2000 and 7 January 2001 (when the morphine theft occurred) I removed a single dose of morphine from Pyxis on 13 November 2000.

Presumably rational readers might question my sudden need to steal morphine shortly after my complaint was registered with the state Department of Health.

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

No attempt to determine the time when I went

off duty on the night of the morphine theft

The morphine thefts occurred several minutes before 7PM at the end of my shift. 

Burke seemingly would have wanted to know if I went off duty immediately thereafter, or if I lingered on the nursing unit for another half hour before going off duty at about 7:30PM.
 
My usual quitting time was usually no earlier than 7:30PM.

Lingering on the nursing unit after a theft of morphine that could be discovered at any moment was about as smart as stealing the morphine that would have been prominently advertised on the end-of-shift report.

Burke testified that she made no attempt to determine the time that I went off duty on the night of the morphine theft (
click to see that transcript segment).

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

I was known to be rational, yet I was suspended

despite the irrational nature of the morphine theft.

The morphine theft was certain to be discovered as soon as someone obtained an end-of-shift printout of the narcotics that were removed from Pyxis on the day of the theft. 

All the nurses knew that they could not conceal a narcotic removal from Pyxis (
click to see a transcript segment).
 

And the theft of a single 30 mg vial of morphine (
click, see Amt), when that theft was certain to be discovered, while leaving two vials behind (click, see Ttl) was undeniably irrational.

And the theft of a single 2mg morphine syringe (needle) suggested that the thief needed a re-fill vehicle for use with the vial of morphine, however nurses at CMC had access to a plentiful supply of unmonitored syringes that could have been used as re-fill vehicles.

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

"Performance matters"

At the conclusion of the investigation my performance at CMC was clearly the target of the investigation rather than my guilt or innocence of morphine theft (click to see a copy of a letter written by Burke).
 
(
click to see a letter written by McCarthy in which he references numerous policy violations when he supposedly should have been addressing guilt or innocence of narcotic theft)
 
At the conclusion of the investigation that was precipitated by morphine theft no mention is made by either Burke or McCarthy regarding my guilt or innocence of morphine theft that was supposedly the question to be answered.
 
Clearly,  my performance was the sole focus of the investigation, and it is reasonable to suggest that there was no interest, for obvious reasons, in my guilt or innocence of morphine theft.

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

"yes, I do believe he took the narcotics"

Burke stated her belief that I was guilty of the morphine theft because there was no other possible conclusion of her investigation (click to see a transcript segment).
 
It would not seem possible that Burke was unaware that her investigation was obviously irrelevant to the detection of narcotic theft.
 
Burke’s willingness to state a belief in my guilt of morphine theft in the complete absence of supporting evidence arguably indicates her desire to present her investigation as being legitimate, and that my termination was based partly on my guilt of morphine theft (
click to see Burke's testimony that I was terminated in part because of the morphine theft). 

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

                       Fraudulent investigation by McCarthy 

In response to my request CMC's attorney sent to me a copy of CMC's investigation report regarding the morphine theft that caused my immediate suspension (click to see a copy of the attorney's cover letter that identified the six-page investigation report that was labeled D0297-D0302).

The six-page report (
click to see that report) demonstrates that no legitimate effort was made to investigate the morphine theft:

page 1 provides Caballero's statement;

page 2 is blank except for signatures;

page 3 is the first of three pages of the incident report that was completed on the night of the morphine theft;

page 4 and 5 contains a narrative by the security representative who responded to the theft;

page 6 is a copy of the Pyxis activity summary that resulted in the discovery of the morphine theft.       

The investigation report provided to me by CMC's attorney shows that no legitimate investigation was conducted, and the report  should be sufficient evidence to support my claim that the investigation was a sham. 

Like Burke, McCarthy conducted a demonstrably fraudulent investigation.
 
At the end of his investigation McCarthy issued a two-page letter in which he detailed the findings of his investigation (
click to see that two-page report).

The investigation by McCarthy was precipitated by the morphine theft, however McCarthy made no mention whatsoever of his conclusion regarding my guilt or innocence of morphine theft, nor does he mention any conclusion regarding the investigation into narcotic theft.
 
Instead, McCarthy mentions only my policy violations none of which are explained or detailed, nor does he cite the actual policies that were violated.

The omissions from McCarthy’s report indicate that he too conducted a fraudulent investigation:

No interviews with the nurses who were present at the time of the theft;

No inquiry regarding the ease of identity theft;

No inquiry regarding my fitting the profile of a substance abuser;

No inquiry of Pyxis narcotic removal records;

No evidence that the nursing records of anyone other than David Miller were investigated;

No attempt to determine the time when I went off duty on the night of the morphine theft;

No drug testing.

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

Suspension precluded the only possible investigation of theft

Perfect nursing records involving narcotics cannot preclude the possibility of narcotic theft.
 
The only way to catch a nurse who is suspected of stealing narcotics is to monitor the narcotic removals by the nurse, and discreetly question the associated patient regarding his receipt of a recently removed narcotic.
 
Suspending me immediately after the morphine theft, in the complete absence of indicators that I needed to steal narcotics, precluded the only possible investigation of my guilt or innocence of narcotic theft; that preclusion was necessary because rational readers will recognize that a legitimate investigation would have exonerated me.

If readers recognize that CMC staged the morphine theft I invite them to make an educated guess regarding the identity of the person who illicitly removed the morphine in question on behalf of CMC.

It is a fact that the morphine was removed a few minutes before 7PM at a time when Caballero was present on my nursing unit and was just starting her shift.
 
Without presenting a copy of my personnel file I assure readers that it contained no mention of my gun collection, therefore the gun statement presented to the security representative on the night of the morphine theft had to have been provided by one of my nursing colleagues. 

________________________________________________
EVIDENCE THAT CMC STAGED THE MORPHINE THEFT

Fantastic denial of knowledge of theft

The corporate director of labor relations for the Saint Barnabas Health Care System is a man by the name of Arnold Manzo (hereinafter Manzo). Burke testified that Manzo was involved with the morphine incident from the beginning (click to see that transcript segment).

Manzo testified that Burke called him for advice, and that she did not tell him about morphine theft or narcotic theft but rather about suspicions that a nurse had made serious charting errors (
click to see a transcript of Manzo's testimony).

Manzo testified that he advised suspension of a nurse who was suspected of making record keeping errors. Rational readers of Manzo's deposition transcript presumably recognize that adverse employment actions are not taken against nurses who are merely suspected of making record keeping errors. 

Adverse employment actions are obviously not taken against a nurse in the absence of credible evidence of actual or potential harm to patients.

Manzo presumably expected rational readers of his testimony transcript to believe that Burke did not tell him about the sole reason for my suspension, namely alleged morphine theft.

Manzo testified that until the day of his deposition two years after the morphine theft and more than a year after I filed litigation that he had never been informed about morphine theft.

Apparently Saint Barnabas Health Care System lawyers nor anyone else had bothered to brief Manzo about the litigation that would compel him to travel out of his way to attend his deposition at which he testified that he had no prior knowledge of narcotic theft in this case.
 
Rational observers might conclude Manzo’s perceived need to distance himself from the criminal morphine theft in consideration that neither Burke or anyone else at CMC was likely to have had the authority to authorize that theft.

After Burke’s invitation to me to attend a meeting at which my performance matters and allegations against me were to be discussed (click to see a copy of that invitation), I responded that I would be happy to attend such a meeting with my lawyer by my side (click to see a copy of my letter).
 
Burke consulted the Director of Human Resources at CMC Jane Palaia who advised against allowing my lawyer at the aforementioned meeting (
click to see a transcript of testimony by Palaia). 

Palaia testified that the morphine theft was the sole reason for my suspension (
click).

Palaia also testified that Burke consulted Manzo regarding allowing the presence of my attorney, and that Manzo replied with a definite ‘no’ (
click).
 
Rational readers could presume that Manzo would have inquired about the necessity for a nurse to have his attorney present at a meeting, yet 
Manzo who was involved from the beginning in my case testified that he had no knowledge of narcotic theft until two years after that theft occurred.
 
And Burke testified that Manzo praised her investigation (
click to see a transcript segment), yet Manzo testified that he was unaware of the event that precipitated that investigation.

Manzo who is the corporate director of labor relations for the Saint Barnabas Health Care System supported in a letter my termination against policy for a fabricated reason (click to see a copy of that letter).

Manzo testified that he was aware of Employee Handbooks, but that he was unaware of disciplinary guidelines for various offenses contained therein (
click to see a transcript segment).
 
Manzo also supported a zero-tolerance policy for making record keeping omissions (
click to see that transcript segment). 

Manzo's zero-tolerance regarding record keeping omissions is consistent with his stated ignorance of Employee Handbook disciplinary guidelines, but it is inconsistent with the reality that is known by all nurses and doctors.  

***********************************************************

Presumably readers of this page recognize that Oles is a liar who was a corrupt judge who sold civil as well as criminal law.

Oles is now retired, and he has an annual retirement income from New Jersey in excess of $100,000; he also has completely paid health benefits as a result of his service as a judge that involved his corruption of the law for political puposes.

This litigation represents my first encounter with the legal system, and I naively reported the detailed evidence of Oles' corruption to a judicial oversight committee. 

The aforementioned oversight entity is known as the Advisory Committee for Judicial Conduct (hereinafter ACJC).

In response to my complaint regarding the evidence of Oles' demonstrable corruption I received a letter from the ACJC stating that no action would be taken against Oles (
click to see a copy of that letter).
 
The letter from the ACJC makes no specific reference to any of my provided evidence; this would seem to be an obvious ploy when evidence cannot be credibly refuted.

It would seem that only in the most corrupt state in the country could an oversight committee exist in order to cover up evidence of corruption.  

In consideration of the nightmare that a corrupt judiciary represents the existence of court rules seems an absurdity.

Nevertheless, the ACJC claims to especially enforce Rule 2:15-8(a)(6) that  prohibits conduct prejudicial to the administration of justice that brings the judicial office into disrepute. 

The aforementioned rule was recently cited by the ACJC regarding a New Jersey Supreme Court justice's supposedly unethical intervention in an incident that involved his son's high school football team; a shortcoming regarding ethics would seem insignificant compared to the demonstrable sale of civil and criminal law. 

Oles is a demonstrable liar who sold both civil and criminal law to a connected party regarding my case, and Oles was demonstrably prejudiced regarding both the evidence in my case and the legislative intent of the whistle blowing law that he completely ignored in his written opinion.
 
Presumably rational readers recognize that Oles brought the judicial office into disrepute, and rational readers also presumably recognize the corruption of the ACJC.
 

 

 

 

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