(click to jump to the segment regarding Oles' fear of narcotic addition, then click the Back button to return to the presentation) 

THE COURT: Now the regular calendar I'll start moving. Is anybody here on Miller versus Community Medical Center?

MR. MILLER: Yes, your Honor.

MR. THIBAULT: Yes, your Honor.

THE COURT: Are the parties ready?Okay. Just I don't need all the -- I have my notes here. Okay.All right. Counsel and Mr. Miller, if you'd place your appearance on the record, please? Just give us your name, Mr. Miller, for the record, so we can identify your voice.

MR. MILLER: All right. David A. Miller.

MR. THIBAULT: Good morning, your Honor. Arthur R. Thibault, Jr., from Apruzzese, McDermott, Mastro & Murphy, on behalf of Community Medical Center and the St. Barnabas Health Care System.

THE COURT: So, like the trial's Monday?

MR. MILLER: Actually, no. I think we got a date in the first of December or something like that.

THE COURT: Oh, okay, okay. So, we have a little time then, huh?


THE COURT: Okay. Mr. Miller, I just have a couple of questions for you. In the brief filed by the hospital, they've indicated that you have acknowledged that you have failed to chart some of the patients' medication. Is that correct?

MR. MILLER: Correct.

THE COURT: Okay. So, that being the case, how do you overcome the hospital's right to discharge you for failure to chart the proper medication for patients?

MR. MILLER: These kind of things are inherent to the realities of a hospital staff nurse. They happen all the time. There has been no evidence presented by the hospital that they investigated anyone other than me.

THE COURT: Well, put that aside. Don't you think the hospital has a right to discharge a nurse who fails to properly chart medication given to patients, especially when that medication are narcotics?

MR. MILLER: Your Honor, I explained in my response to the defendant's motion for summary judgment that the errors that I was responsible for were meaningless and they happen all the time.

THE COURT: Are you saying to me that it is general policy in the hospital that when a narcotic is given to a patient the nurses do not track that, do not chart it? Is that what you're telling me?

MR. MILLER: Yes, it happens, yes.

THE COURT: Well, it's not a question of happens. But you're saying to me it happens so often that it's not a justification for discharging someone. Is that what you're saying to me?

MR. MILLER: Correct, yes. The actually have a printout --

THE COURT: That's scary, Mr. Miller.

MR. MILLER: Okay, your Honor. I presented evidence --

THE COURT: That's absolutely beyond my comprehension.

MR. MILLER: Okay. I'm telling you the truth. I also presented evidence in my response to the defendant's motion that like over a period of two years there were at least 30 instances when a vile containing either morphine or demerol --

THE COURT: Do you know of any other nurse has been discharged because of failure to chart patients?

MR. MILLER: I have never heard of anything and I have seen countless times. They actually have a printout at the hospital called -- it's a printout known as the Unreported Scheduled Medication printout. Now, this printout automatically generates when medications are not charted as being given and I've seen a thousand of them, at least, during my nine years at Community Medical Center. But this particular printout is not utilized by every unit of the hospital.

THE COURT: All right. So, let's just take -- let's just take the basis. Let's take the assumption that the hospital has a right to discharge a nurse who's not charting the patient. How do you overcome that? I mean, how do you overcome that being a pretext to your firing?

MR. MILLER: The hospital is maintaining that these were serious errors that endangered the patient and I've explained at length that they're not -- that they were not serious. I was the only --

THE COURT: The fact that I —

MR. MILLER: Pardon me?

 THE COURT: The fact that I got Percoset and it's not charted, you don't think that's serious?

MR. MILLER: That is not serious, your Honor, no.

THE COURT: I must —

MR. MILLER: And, pardon me, but, your Honor --

THE COURT: — live in a different world. I'm sorry. I must live in a different world.

MR. MILLER: Yes, your Honor. That--

THE COURT: I guess you're right.

MR. MILLER: Yes. Your feelings are not founded on any kind of logical -- pardon my, you know, saying this --


MR. MILLER: -- but they're not well-founded at all, your concerns.

THE COURT: Let's say you leave your -- your shift ends at 6:00.


THE COURT: And you didn't chart the fact that I received Percoset at 5:00. So, the next nurse that comes in at 6:15 looks at my chart. She goes and notices that the prescription called for me to get Percoset at 5:00. She looks at it, there's no indication I received Percoset. She then gives me another shot of Percoset.

MR. MILLER: Okay. All right. Now, I'm asking you what do you think that that is going to do? I know what it's going to do to you, but what do you think?

THE COURT: Well, I know what I'm worried about is that two days, four days, five months down the road I'm hooked on Percoset.

MR. MILLER: No, that's not that's not the case.

THE COURT: Well, why would you chart patients' medication at all?

MR. MILLER: Well, your Honor, it's not like I did these --

THE COURT: But there's a purpose for charting medication; right?

MR. MILLER: It's not like I did these things unintentionally -- excuse me. It's not like I intentionally omitted from the record.

THE COURT: Oh, I understand that.

MR. MILLER: All right. And I explained to you that, for example, the realities of staff nursing. I'll explain it again. I could be -- I could remove a narcotic from the narcotic cabinet and I walk down, you know, 50 feet down the hallway to administer it to the patient. Then I could be on my way back to the nurse's station to chart that medication. Meanwhile, I encounter another patient who is having chest pain, which was an indicator of a possible heart attack. I am hardly going to tell that patient that she has to wait until I can chart that Percoset. And we're constantly rearranging our priorities throughout the day.

THE COURT: Well, I — well, I agree with you, but---

MR. MILLER: These things happen.

THE COURT: I agree with you. Well, wait a minute. I agree with you, but in the record as presented, which is undisputed, you never even charted some of these prescriptions, never mind charting it one hour later, two hours later, three hours later.

MR. MILLER: Correct, yes. Did I do it intentionally? No. I forgot. But it didn't --


MR. MILLER: — it didn't affect the patients involved and I explained that, you know.

THE COURT: All right. So, if there's a series of patients on which you forgot to chart, doesn't that indicate that they have a right to say, you're not very attentive to your tasks and, therefore, we're going to discharge you?

 MR. MILLER: Your Honor, I have a documented history of sincere care for my patients and it's well known at the hospital. And I'll point it out to you that after this morphine theft, which, if you allow my case to come to trial, I will show a jury that it was orchestrated, that morphine theft that started this whole case going. After that morphine theft, the hospital deliberately -- I mean, the hospital investigated my nursing records and such an investigation could not have given any kind of support for or against my guilt regarding narcotics theft.

THE COURT: But they did do an investigation and they picked up the fact that you weren't properly charting your patients' medication.

MR. MILLER: Right. They investigated those because they knew that if they looked hard enough and they, you know, the records show that they conducted a detailed investigation. I mean, they moved mountains, apparently, in order to uncover these record keeping errors. Did they support narcotics theft on my part? No, they didn't.

THE COURT: You weren't fired for that.

MR. MILLER: In part I was, yes.


MR. MILLER: Yes, indeed.

THE COURT: Well, what does it say — what —

MR. MILLER: It was testified that I was fired in part because of morphine theft.

THE COURT: Wait a minute, wait a minute. What -- what does it say in your discharge, in your notice of discharge? Does it--

MR. MILLER: It says fired for substandard charting and there is no standard. There is no charting standard.

THE COURT: Well, wait a minute. But it's not for misuse of narcotics or stealing or theft of narcotics. They didn't discharge you for that.


THE COURT: That might have precipitated their initial investigation, but that wasn't the reason for your discharge. Correct?

MR. MILLER: Correct, yes. I was told

THE COURT: Why -- they gave you the opportunity for a peer review. Why didn't you take that opportunity?

MR. MILLER: A couple of things. One is that my termination letter said as per the attached policy regarding peer review. Now, there wasn't any kind of attached policy with my letter. I discussed that with--

THE COURT: You mean the letter that you received from the hospital?

MR. MILLER: The termination letter, yes. Now, I discussed that with my lawyer. He said, you know, don't worry about it; we are going to go right for reinstatement. But, your Honor, I explained to you I think I have very strong evidence that this morphine incident was staged, was orchestrated by the hospital. Now--

THE COURT: Well, let's assume that's true. But did you --

MR. MILLER: True, yes. Now, I find it rather doubtful that I can get an honest peer review. I also supplied documents to you. My termination letter was dated 16 of April. I supplied two termination notes dated 1 April, 15 days before my termination letter, that, you know, recommended that I was not to be rehired.


 MR. MILLER: You know, I doubt that the peer review would have been upheld by the hospital, number one. And in consideration of the very possible -- the strong possibility that the morphine thefts were orchestrated, you know, that the peer review would have been an honest peer review and --

THE COURT: That sounds sort of like a criminal matter, orchestrating a theft of morphine.

MR. MILLER: Your Honor, I told you that when this is through I'm going to file federal charges, I'm going to try to see if federal charges are brought against the hospital.

THE COURT: I don't know about it being federal. Okay. Thank you, Mr. Miller. Counsel, do you wish to ...

MR. THIBAULT: Your Honor, I really don't have much to say.

THE COURT: Well, he's what counsel--what Mr. Miller is saying to me. He says, well, he thinks he can get over the pretext issue by saying that historically the hospital has never sanctioned other nurses for mis-charting patients and he was one of the few that had happened, resulting in, at least, a jury appropriately making the determination as to whether he's overcome the pretext issue.

MR. THIBAULT: And it would go to a pretext argument assuming he's established a prima facie case. There's no evidence in this record that any nurse committed the errors that Mr. Miller committed in this particular case. And he doesn't have any evi --

THE COURT: Has any discovery developed other nurses being discharged because of --

MR. THIBAULT: No, your Honor.

THE COURT: — poor charting?



MR. THIBAULT: So, I mean, there's no evidence in this record that he was treated any differently than any other nurse that this may or may not have happened to.

THE COURT: But he says, though, to me, he says that's how -- it happens all the -- all the time and that the hospital has never sanctioned or has never disciplined other nurses for lack of charting.

MR. THIBAULT: Well, I mean, I don't know who he's referring to what he's referring to. I can't respond to that.

THE COURT: Well, I guess my question was did he submit any documentation to show the discipline of other -- or the lack of discipline of other nurses relative to the issue. I guess that's what my question is.

MR. THIBAULT: No, there's no evidence in the record as to that at issue.

THE COURT: All right, okay. Anything else, Counsel?

MR. THIBAULT: I really don't. I mean, nothing in this case established pretext. The reason for his discharge is that he was terminated for his charting errors. He hasn't established that that was a false reason, that that's pretext for retaliation and that's what this case boils down it. And absent any kind of evidence from Mr. Miller in this record that says that Community didn't act for a stated reason, we're entitled to summary judgment on this case.

THE COURT: Okay. Thank you very much. Yes, Mr. Miller?

MR. MILLER: I may have misheard what the attorney for the defendant just stated. But the investigator, the primary investigator for the hospital as I mentioned in, you know, papers submitted to you before, she didn't prepare a report. So, there's no evidence that she investigated any other nurse and found that their records were --

THE COURT: No. My question to him was have you established through documentation to the hospital by saying what you've -- your reasons for firing me was a pretext because, here, I have 15 nurses who are --who have been investigated for improper charting and neither of these 15 have been discharged. That's what my comment was. And counsel says to me, no, you have not raised that issue to them by way of that particular defense.

MR. MILLER: I can add one thing that

THE COURT: We're not going to add anything here, but –

MR. MILLER: Okay, okay.

THE COURT: Go ahead.

MR. MILLER: Pardon me?

THE COURT: No, go ahead.


THE COURT: I said we're not going to add anything now because the case is going to trial, if it gets that far, in another month or so. So, we're not -- discovery's over with.

MR. MILLER: If the issue is whether or not nurses have been disciplined, I'm aware of one other nurse who has been -- she was suspended. Apparently, the hospital has a set of guidelines that they use for documentation problems and this nurse received one or two days suspension. That's the only other case that I'm aware of. And now this was --

THE COURT: So, you're not aware

MR. MILLER: -- my first case in nine and a half years.

THE COURT: Okay, Mr. Miller. But you're not aware of any other case in which there was a charting error, a history of mis-charting, and they've showed me five patients where the history of mis-charting existed, and you're saying to me you're not aware of any other situation where at least there are that many mis-chartings where the nurse was retained or discharged. Is that what you're saying to me?

MR. MILLER: I don't know the specifics.

THE COURT: You don't know.

MR. MILLER: I don't know. These seven --actually, there weren't five, there were seven. Seven over a period of over two months, during which I made at least a thousand other medication entries into the patients' charts.

Like I said previously, these things are inherent to the reality of staff nursing. There had been no study, no evidence presented that nurses keep perfect records. It just doesn't happen.

THE COURT: Okay. Thank you.

Counsel, I will prepare a written opinion. I'll be able to get it out to you in the next couple of days .

And, Mr. Miller, I will write to you. I'm going to prepare a written opinion so that at least whatever happens, the Appellate Division will know my thought process. Okay? And you'll get that in the mail within a couple of days. Thank you for your presentation.

MR. THIBAULT: Thank you, your Honor.

THE COURT: The 21st, yes. I should be able to get it out Monday or Tuesday.

MR. THIBAULT: Great. Thank you. (Decision reserved.)



 I, PEGGY A. MASTRODICASA, the assigned transcriber, do hereby certify the foregoing Transcript of Proceedings on a duplicate of Tape No. EMO-366-03, Index No. from 0227 to 1045, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of the proceedings as recorded.


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