CORRUPT DEFEAT OF NEW JERSEY'S CONSCIENTIOUS EMPLOYEE PROTECTION ACT

Preliminary Statement

This litigation does not arise out of plaintiff’s failure to chart properly in patients' medical records, however plaintiff readily acknowledges that he unintentionally failed to make seven record keeping entries during the course of eight weeks. This litigation does not arise because plaintiff removed narcotics without a physician's order, namely a 30mg vial of morphine and a 2mg morphine syringe, which were removed under his PIN on 7 January 2001 which resulted in his immediate suspension, because such actions were never taken by him. This litigation arises because of the retaliation taken against plaintiff by his employer Community Medical Center and the Saint Barnabas Health Care System after his registration of a complaint with the NJ State Board of Health and Senior Services about the application of diapers to patients at Community Medical Center.

STATEMENT OF FACTS

Plaintiff David Miller began his employment as a staff nurse at Community Medical Center in Toms River, NJ on 11 June 1991.

On 21 November 2000 plaintiff registered a complaint with the New Jersey State Board of Health and Senior Services (1a) regarding the application of diapers to bedridden patients at Community Medical Center (hereinafter Community) who were known to be incontinent and in many cases were also mentally-impaired. Plaintiff registered the complaint about diaper use after making two written requests over the course of a year that this issue be addressed (2a).

In a letter dated Monday 27 November 2000 plaintiff notified the Executive Director of Community, Nancy Wollen, that he had registered a complaint with the State Board of Health (3a); notification of the complaint was also copied to four Community nursing administrators who were immediately subordinate to Community nursing administrator Lauren Burke (hereinafter Burke), as well as to a nurse whose specialty is skin care and the treatment of wounds.

Plaintiff was summoned the following week on Monday 4 December 2000 to a meeting in Burke’s office in order to discuss his concern about the use of diapers and to be instructed to follow proper channels when bringing his issues to the fore (80a). The only other attendants at the meeting on 4 December were plaintiff's two immediate supervisors Sherry Margolies and Christine Dodds (81a/12:23-25, 82a/13:1-14).

When staff nurses at Community need to administer a narcotic to a patient, the narcotic is obtained from a computerized medication cabinet known as Pyxis which is kept in a locked medication room on each nursing unit. The Pyxis cabinet keeps an automatic record of the nurse who made a narcotic removal, the patient for whom the narcotic was removed, the time and date of the removal, and the name and amount of the narcotic that was removed. In order to gain access to the Pyxis cabinet a nurse in January 2001 entered by way of a keypad a PIN that was unique to her; that PIN has been replaced by a fingerprint-recognition system (4a). The keypad-entry of a PIN was easily seen by someone who was standing nearby which was a common occurrence (4a).

According to Pyxis records, on 7 January 2001 at 6:54PM and at 6:58PM a 2mg morphine syringe and a 30mg morphine vial respectively were stolen from the Pyxis cabinet under plaintiff's PIN. Pyxis records show that two 2mg morphine syringes and two 30 mg morphine vials were left behind after the theft of a single 2mg syringe and a single 30mg vial.

A policy-mandated narcotic inventory/count was not conducted on the evening of the morphine incident under plaintiff's PIN (6a/103:11-15). When a narcotic inventory/count is conducted at the end of a shift, a Pyxis printout of the shift's narcotic usage is obtained and is examined by the charge nurse (6a/103:2-6, 7a/16:6-10) who supervises the conduct of the nursing unit.

At 9PM on 7 January 2001 Community staff nurse Delia Caballero (hereinafter Caballero) obtained a Pyxis summary (9a) for one of her patients who has been designated for confidentiality reasons as Patient A. As a result of obtaining the Pyxis summary for Patient A, the morphine thefts under plaintiff's PIN were discovered (10a). At that time an incident report by the security representative who responded to the discovered morphine thefts was informed that plaintiff read gun magazines and spoke to the nursing staff about a gun collection (11a).

Shortly after reporting for duty at 7AM on 8 January 2001, plaintiff was summoned to a meeting attended by Burke, Dodds, Community Director of Human Resources Jane Palaia, Community pharmacist Peter Chiodo, and an unidentified security representative. At this meeting plaintiff was confronted with the morphine thefts that were made under his PIN. When plaintiff could not explain the morphine thefts under his PIN he was suspended by Burke pending investigation of the incident which turned out to be an investigation of his nursing records (12a/11:2-25, 13a/12:1-9).

Plaintiff was summoned by Burke to respond to unknown allegations in a letter dated 26 February 2001 (14a). Plaintiff responded that he would be happy to cooperate with Burke's investigation with his lawyer in attendance (15a). Plaintiff was then informed by Burke that his lawyer would not be allowed to be present at a meeting at which he was to respond to unknown allegations that resulted from an investigation into alleged morphine theft by him (16a). Plaintiff strongly suspected that the morphine incident under his PIN was orchestrated by the defendants, and did not present at Community to respond to unknown allegations without his attorney, and he was terminated from Community shortly thereafter (17a) for substandard charting of dispensed narcotics.

Plaintiff demanded reinstatement in a letter dated 20 April 2001 (18a); a letter dated 18 May 2001 from Corporate Director of Labor Relations for the Saint Barnabas Health Care System Arnold Manzo (hereinafter Manzo) stated that plaintiff's termination status was unchanged (19a).

Plaintiff filed a 15-Count Complaint against Community Medical Center and the Saint Barnabas Health Care System in July 2001 (20a-27a). Thereafter defendants filed a Motion to Partially Dismiss in October 2001.

In January 2002 trial court Judge Edward Oles dismissed with prejudice the First, Sixth, Seventh, Eighth, Ninth, Tenth, and Twelfth Counts of the Complaint, and dismissed with prejudice shortly thereafter the Fifth and Fourteenth Counts. In February 2002 defendants filed their ANSWER and AFFIRMATIVE DEFENSES (46a). On 24 October 2003, plaintiff did not oppose dismissal with prejudice of Counts Two, Three, Eleven, Thirteen, and Fifteen. In a decision dated 27 October 2003 (54a-55a) Judge Oles granted defendants’ motion for Summary Judgment regarding the remaining Counts One and Four of the Complaint, which addressed the violation of the Conscientious Employee Protection Act (CEPA), on the grounds that plaintiff did not establish pretext for his termination and did not establish a causal link between his whistle-blowing and his termination (Trial Court Opinion, 56a-63a). 

 

LEGAL STANDARD

Rule 4:46-2 provides that Summary Judgment is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgement or order as a matter of law. Summary Judgment can be defeated by the opposing party when material and substantial facts in dispute are presented; those material and substantial facts in dispute appear in the following pages. Model Civil Jury Charges section 2.32 provides the four legal elements that must be proven by a preponderance of the evidence regarding a claim of Conscientious Employee Protection Act (CEPA) violation.

LEGAL ARGUMENT

POINT ONE

PLAINTIFF HAS ESTABLISHED A PRIMA FACIE CASE

OF A CEPA VIOLATION, THEREFORE THE FIRST

AND FOURTH COUNTS OF PLAINTIFF’S COMPLAINT

MUST BE RETAINED


The Legal Standard under CEPA

In order to prevail in a CEPA violation claim, plaintiff must prove by a preponderance of the evidence each of four legal elements.

First Element

The first element is established by plaintiff’s reasonable belief as a certified health care professional (NJSA 34:19-3a) that the application of diapers to bedridden, mentally-impaired individuals at Community who were known to be incontinent is a violation of Provision 3.5 of the Code of Nursing Ethics and constitutes improper quality of patient care (NJSA 34:19-3a). The application of diapers to incontinent, bedridden patients serves no purpose except to conceal wastes, and will result in skin excoriation at least and infection at most because of the prolonged concealment of wastes (2a/third paragraph).

Second Element

 

In order to establish the second element, plaintiff must show that Burke, who first suspended him then terminated him, was aware of his complaint to the State Board of Health (1a). The following summarizes how plaintiff establishes the second element. A full explanation of each item follows at the end of the summary associated with Element Four.

 

    1. INCONSISTENT TESTIMONY BY COMMUNITY NURSING ADMINISTRATOR NICHOLAS WHO FIRST TESTIFIED THAT SHE RECEIVED THE LETTER DATED 27 NOVEMBER, WHICH NOTIFIED COMMUNITY THAT PLAINTIFF HAD REGISTERED A COMPLAINT WITH THE BOARD OF HEALTH, AND DISCUSSED THIS LETTER WITH BURKE, AND THEN LATER TESTIFIED THAT SHE TOO WAS UNAWARE OF PLAINTIFF’S COMPLAINT
    2. INCREDIBLE TESTIMONY BY BURKE THAT SHE WAS NOT AWARE OF PLAINTIFF’S BOARD OF HEALTH COMPLAINT UNTIL THE FIRST DEPOSITION IN THIS CASE ELEVEN MONTHS AFTER PLAINTIFF’S LEGAL COMPLAINT WAS SERVED TO DEFENDANTS. A MAJOR DEFENSE BY DEFENDANTS REGARDING THE ESTABLISHMENT OF A LEGAL ELEMENT OF CEPA IS THAT BURKE WAS NOT AWARE OF PLAINTIFF’S BOARD OF HEALTH COMPLAINT, YET IT IS INDIRECTLY CLAIMED THAT SHE WAS NEVER QUESTIONED PRIOR TO THE FIRST DEPOSITION ABOUT HER KNOWLEDGE OF PLAINTIFF’S COMPLAINT. DEFENDANTS DO NOT DISPUTE THAT COMMUNITY EXECUTIVE DIRECTOR NANCY WOLLEN KNEW OF PLAINTIFF’S COMPLAINT TO THE BOARD OF HEALTH (21a/paragraph 7, 47a/paragraph 7), YET IT IS INDIRECTLY CLAIMED THAT THE LINES OF COMMUNICATION AT COMMUNITY DID NOT INCLUDE BURKE WHO IS THE ADMINISTRATOR-DIRECTOR (59a) OF THE CRITICAL CARE AREA AND WHO IS COMMUNITY’S PRIMARY REPRESENTATIVE IN THIS CASE BEING PRESENT FOR ALL DEPOSITIONS.
    3. A MEETING WAS HELD IN BURKE’S OFFICE 4 DECEMBER ONE WEEK AFTER NOTIFICATION OF COMMUNITY OF PLAINTIFF’S BOARD OF HEALTH COMPLAINT. A LETTER THAT FOLLOWED UP THIS MEETING IMPEACHES BURKE’S TESTIMONY THAT SHE WAS UNAWARE OF PLAINTIFF’S COMPLAINT; THIS LETTER REFERS TO INSTRUCTION GIVEN TO PLAINTIFF THAT HE FOLLOW PROPER CHANNELS IN THE FUTURE WHEN BRINGING HIS CONCERNS TO THE FORE.
    4. INCONSISTENT TESTIMONY BY COMMUNITY NURSING ADMINISTRATOR DODDS WHO DENIED BEING PRESENT AT THE MEETING IN BURKE’S OFFICE ONE WEEK AFTER NOTIFICATION OF COMMUNITY OF PLAINTIFF’S BOARD OF HEALTH COMPLAINT; THIS TESTIMONY WAS REFUTED BY A FORMER COMMUNITY NURSING ADMINISTRATOR WHO WAS PRESENT AT THE MEETING.

      THIRD ELEMENT

      There is no dispute that plaintiff was first suspended after the morphine incident and then terminated.

      FOURTH ELEMENT

      Plaintiff must prove that there was a causal link between his complaint to the State Board of Health and the retaliation. Plaintiff must adduce tangible support for his belief that the action taken against him was retaliatory; the following summarizes how plaintiff establishes this fourth and last element. A full explanation of each item follows the summary.

    5. AN ATTEMPT WAS MADE TO TERMINATE PLAINTIFF AGAINST POLICY (98a/31:2-12, 100a/33:11-14, 102a/35:9-14)) AFTER HIS SECOND REQUEST THAT THE ISSUE OF DIAPER USAGE AT COMMUNITY BE ADDRESSED (96a-97a). Because of an innocuous lunchtime resting habit on the floor (102a/35:9-25, 103a/36:1-3) behind a closed door of a vacant patient room which was on a vacant nursing unit (100a/33:10-14), an attempt was made to terminate plaintiff against policy three weeks after his second request that the issue of diaper usage at Community be addressed (2a). Burke’s testimony regarding this episode is particularly convoluted (98a-103a).
    6. PLAINTIFF’S DOCUMENTED NURSING PERFORMANCE WAS ABOVE AVERAGE (105a-107a). One of his last performance evaluations (108a-120a) stated that: ‘David shows great caring for his patients and their families’; ‘always helps his co-workers often without being asked’; ‘David devotes all of his time to his patients’; ‘very caring compassionate and attentive’; ‘David has at times called from home to check on his patients or follow-up on a patient care issue’.
    7. SUSPENSION AGAINST POLICY AFTER THE MORPHINE INCIDENT, DESPITE THE COMPLETE ABSENCE OF INDICATORS THAT PLAINTIFF NEEDED TO STEAL MORPHINE(170a/65:2-17) AND DESPITE THE EASE OF IDENTITY THEFT (4a), IN ORDER TO PRECLUDE THE ONLY LEGITIMATE INVESTIGATION OF PLAINTIFF’S ALLEGED MORPHINE THEFT; THIS IS CONSISTENT WITH ORCHESTRATION OF THE MORPHINE INCIDENT.
    8. IRRELEVANT AND HARASSING INVESTIGATION OF PLAINTIFF’S NURSING RECORDS, WHICH WAS NOT SET FORTH BY POLICY, WHICH WAS THE SOLE INVESTIGATION CONDUCTED AFTER THE MORPHINE INCIDENT; THIS IS CONSISTENT WITH ORCHESTRATION OF THE MORPHINE INCIDENT
    9. FRAUDULENT INVESTIGATION AFTER MORPHINE INCIDENT THAT OMITTED RELEVANT QUESTIONING, DRUG TESTING, AND A WRITTEN REPORT; THIS IS CONSISTENT WITH ORCHESTRATION OF THE MORPHINE INCIDENT.
    10. BURKE FALSELY ACCUSED PLAINTIFF OF WITHDRAWING A NARCOTIC WITHOUT A PHYSICIAN’S ORDER, AND SHE FALSELY ACCUSED HIM REGARDING HIS FAILURE TO MAKE NEEDLESS SPECIAL TIME NOTATIONS REGARDING ADMINISTERED MEDICATIONS; THESE FALSE ALLEGATIONS ARE CERTAINLY CONSISTENT WITH RETALIATION, AND ARE ALSO CONSISTENT WITH ORCHESTRATION OF THE MORPHINE INCIDENT.
    11. UNEQUAL TREATMENT OF PLAINTIFF REGARDING POLICY VIOLATIONS BY OTHER NURSES AT COMMUNITY WHO WERE NOT TERMINATED
    12. ALLEGED ORCHESTRATION OF THE MORPHINE INCIDENT UNDER PLAINTIFF’S PIN THAT REQUIRED TWO VIOLATIONS OF HOSPITAL POLICY; THE MORPHINE INCIDENT WAS DISCOVERED AS A RESULT OF A HIGHLY IRREGULAR ACTION WHICH WAS ALSO A POLICY VIOLATION.
    13. SECURITY INCIDENT REPORT AFTER THE MORPHINE INCIDENT THAT PLAINTIFF READS GUN MAGAZINES AND TALKS TO THE STAFF ABOUT A GUN COLLECTION; THIS INCIDENT REPORT IS CONSISTENT WITH AN ORCHESTRATION OF THE MORPHINE INCIDENT.
    14. DEMONSTRABLE PERJURY BY BURKE REGARDING THE DISCOVERY OF THE MORPHINE INCIDENT; THIS PERJURY IS OF COURSE CONSISTENT WITH AN ORCHESTRATION OF THE MORPHINE INCIDENT.
    15. ALLEGED ORCHESTRATION OF THE MORPHINE INCIDENT TO SUGGEST THAT THE THIEF NEEDED A SINGLE 2mg MORPHINE SYRINGE FOR A RE-FILL DEVICE
    16. DEMONSTRABLE PERJURY BY CORPORATE DIRECTOR MANZO WHO ALLEGEDLY ADVISED PLAINTIFF’S SUSPENSION WITHIN HOURS OF THE MORPHINE INCIDENT BECAUSE OF SUSPECTED CHARTING ERRORS; THIS TESTIMONY IS CONSISTENT WITH ORCHESTRATION OF THE MORPHINE INCIDENT.
    17. INCREDIBLE TESTIMONY BY CORPORATE DIRECTOR MANZO WHO DENIED KNOWLEDGE OF THE MORPHINE INCIDENT UNTIL THE DAY OF HIS DEPOSITION TWO YEARS AFTER THE FACT DESPITE HIS ALLEGED PRAISE OF BURKE’S INVESTIGATION REGARDING THE MORPHINE INCIDENT; THIS TESTIMONY IS OF COURSE CONSISTENT WITH AN ORCHESTRATION OF THE MORPHINE INCIDENT.

Items 1-18 from the above are further explained as follows:

    1. Nicholas first testified that she received letters dated 5 August 2000 and 27 November 2000 from plaintiff that addressed his concern about diaper usage at Community (68a/16:2-25, 69a/17:1-2); the letter dated 27 November (3a) noted plaintiff’s registration of his complaint to the Board of Health; Nicholas then testified that she discussed these letters with Burke and that she and Burke met with plaintiff, after delivery of the 5 August letter, in order to discuss his concern (73a/21:22-25). Finally, when questioned by Community’s lawyer, Nicholas testified that she was unaware that plaintiff had registered a complaint with the Board of Health (75a/23:7-10) even though this was the subject of the 27 November letter which was sent to her by plaintiff and which she previously testified that she had received and discussed with Burke. Regarding the alleged meeting of Burke, Nicholas, and plaintiff, the letter dated 27 November 2000 states that the complaint to the Board of Health was made because no one at Community responded to plaintiff’s repeated requests that the issue of diaper use be addressed (3a); there was no meeting of plaintiff, Burke, and Nicholas regarding his concern about diaper usage at Community. And although Burke testified that she was unaware prior to the first deposition of plaintiff’s concern about diaper usage at Community (64a/44:6-23), Nicholas testified, falsely, that this concern was discussed with Burke at a meeting with plaintiff, and that this discussion was off/on (74a/22:2-11).
    2. It is indirectly claimed that defendants’ MOTION TO DISMISS in October 2001 and defendants’ ANSWER/AFFIRMATIVE DEFENSES in February 2002 were prepared without questioning Burke regarding her knowledge of plaintiff’s Board of Health complaint, yet a major defense is that Burke was not aware of plaintiff’s Board of Health complaint, and yet this major defense was not supposedly verified until after the first deposition in this case on 31 July 2002 (64a/44:6-23, 65a/45:14-19).
    3. A letter (80a), mistakenly dated 5 November, was written to follow-up a meeting in Burke’s office which was precipitated by plaintiff’s letter of the previous week dated 27 November 2000 which noted his complaint to the State Board of Health(3a). According to testimony by former Community nursing administrator Sherry Margolies, this meeting was held approximately one month prior to the morphine incident of 7 January under plaintiff’s PIN, and was attended by plaintiff and Community nursing administrators Burke, Margolies, and Dodds (81a/12:23-25, 82a/13:1-14, 83a/14:8-12). That the letter mistakenly dated 5 November 2000 (80a) is correctly dated 5 December 2000 and therefore impeaches Burke’s testimony that she was unaware of plaintiff’s complaint to the State Board of Health, is supported by: a) references made in the letter dated 5 November to ‘our conversation yesterday’ and to ‘our meeting yesterday’, therefore clearly the meeting was held on the 4th b) staffing records indicate that a meeting attendant, Sherry Margolies, was on duty 4 December but was not on duty 4 November (85a-88a) c) plaintiff had a fixed work schedule which was Saturday, Sunday, and Monday. Burke and meeting attendant Christine Dodds did not work on weekends except on occasion; the meeting on the 4th was held on a Monday. d) the 4th of November 2000 was a Saturday, whereas the 4th of December 2000 was a Monday. e) it is clear that diaper-use was the primary topic of the meeting on the 4th (80a), and it is also clear that plaintiff was instructed to go through proper channels when bringing his concerns to the fore; the 27 November letter of the previous week (3a) which supposedly did not follow proper channels, was addressed to the Executive Director of Community Nancy Wollen and informed her that plaintiff had registered a complaint with the State Board of Health. f) the letter mistakenly dated 5 November (80a), which was addressed to Burke, is stamped by Community Human Resources Department as having been received on 8 December 2000, yet Burke testified that she was unaware of such a letter(66a/46:2-11). g) references in the letter mistakenly dated 5 November 2000 (80a) are made to ACEIs and to plaintiff’s request for the name of the authority who can effect a positive change in the educational policy at Community; those references in turn clearly refer to statements that were made in plaintiff’s undisputed letter (21a/paragraph 7, 47a/paragraph 7) of the previous week dated 27 November (3a).
    4. Community nursing administrator Christine Dodds repeatedly and adamantly denied being present at the meeting held on the 4th in Lauren Burke’s office (95a/36:3-7); her testimony was refuted by former Community nursing administrator Sherry Margolies (81a/12:23-25, 82a/13:6-7). Obviously, Dodds’ being absent from the meeting on the 4th was a requisite to avoid testifying about the reason for that meeting.
    5. No further explanation is needed.
    6. No further explanation is needed.
    7. Plaintiff was suspended according to a policy that refers to an action taken by an associate (146a), however Burke was forced to admit that she was unaware of any action taken by plaintiff that warranted his suspension (147a/70:5-9). Pyxis records show that plaintiff had withdrawn a single dose of morphine in the five months prior to the morphine incident, and that this withdrawal was made eight weeks prior to the incident (165a-169a); the examination of these Pyxis records can certainly detect suspicious activity, and is indeed a policy-mandated method for detecting narcotic theft; of course, plaintiff’s history of making morphine removals clearly shows no unusual activity; of course this method of detecting narcotic theft was not employed by Burke as part of her investigation (12a-13a). When a nurse removes a narcotic from the Pyxis cabinet, she makes a subsequent entry into the patient record that the patient received the narcotic. Because a staff nurse has complete control of the content of her nursing records, perfect records could not rule out narcotic theft (122a/60:12-24, 123a/86:2-8); a nurse could easily keep for herself a withdrawn narcotic while making an entry into the patient record that he received it. Because Pyxis records are automatically kept for each narcotic withdrawal, an inference cannot be made that a corresponding omission from the patient record is an attempt to conceal the theft of the narcotic. As any staff nurse knows, occasional omissions from the patient record regarding administered medications are inherent to staff nursing because of the numerous variables that exist to influence charting behavior under circumstances in which the physical care of the patients is the first priority; record keeping omissions occur not because of deliberate neglect but because of the assignment of priorities by the nurse; given a choice between ensuring that the physical needs of the patient are met and making a record keeping entry that may never be seen by anyone, the choice of many nurses is clear; because of the choice of many nurses, the nurse eventually forgets to make an occasional record keeping entry. Burke testified that the only way to confirm narcotic theft is by asking the patient about his receipt of a withdrawn narcotic (123a/ 86:2-8). A nurse who was suspected of narcotic theft would be discreetly monitored regarding her narcotic removals, and the associated patient would be discreetly questioned thereafter regarding his receipt of a narcotic. Plaintiff was not given the opportunity to demonstrate his innocence regarding narcotic theft because of his immediate suspension against policy.
    8. The previous argument (Item 7) reasonably establishes that an investigation of nursing records cannot detect narcotic theft; but such an investigation can detect performance matters (14a) and policy violations that were addressed by Burke. The logic that exposes Burke’s transparent efforts at harassment regarding her irrelevant investigation is ignored by Judge Oles who states that there is absolutely no evidence of retaliation in this case (62a). Burke’s sole investigative effort in this case was the irrelevant investigation of nursing records the content of which a nurse has complete control (12a/11:2-25, 13a/12:1-9).
    9. Burke’s investigation did not include relevant questioning about the ease of identity theft (4a) and the observation of someone exiting the clearly visible medication room door (177a) around the time of the morphine incident. At the conclusion of Burke’s investigation, a written report was not prepared which ensured that the investigation could not be impeached(144a/92:1-24). Relevant questions about plaintiff were not asked, for example, about his work performance or whether he showed signs of substance abuse. Policy-mandated (145a) drug testing was not required prior to suspending plaintiff even though he was accused of morphine theft. Burke testified that such testing is only requested when an employee shows signs of being under the influence (143a/88:11-25). Burke incredibly testified that she was unaware that drug testing of a person could return positive results for the presence of narcotics even though he showed no signs of being under the influence. Burke’s absurd testimony (12a/11:22-25, 13a/12:1- 25) regarding her fraudulent and irrelevant efforts could not fool a savvy staff nurse; it is an undisputed fact that two morphine removals were illicitly made under plaintiff’s PIN shortly before 7PM on 7 January 2001, and none of Burke’s efforts (13a) were relevant to determining the identity of the person responsible for this undisputed fact. A fraudulent investigation in which no credible effort is made to find the person who made the illicit morphine removals under plaintiff’s PIN is obviously consistent with an orchestration scenario.
    10. Burke falsely accused plaintiff of withdrawing on 30 December a Xanax tablet (a narcotic) without a physician’s order, and she cited a computerized entry into the patient record that plaintiff had withdrawn the Xanax (149a), however such an entry could not have been made unless a physician’s order existed. Nevertheless, plaintiff provided a hard copy of the physician order in question (150a). Judge Oles repeated this false allegation against plaintiff about the absence of a physician order (60a). Burke also makes unfounded allegations, which were then repeated by Judge Oles (60a-61a), that plaintiff did not make needless special time notations, which were not required by policy M-03 (132a) or by educated nursing practice, regarding administered medications; these false allegations were relayed by Burke to a state investigator (154a-155a/first paragraph) who became involved in this case because of the morphine incident that was allegedly orchestrated by defendants. Although the issue is supposedly plaintiff’s guilt or innocence regarding narcotic theft, these false allegations about special time notations are made by defendants and by Judge Oles. Retaliation is clear. The ignoring of retaliation by Judge Oles is also clear. Of course, it is arguable that the major false allegation against plaintiff is the theft of a large quantity of morphine under his PIN for which he was in part terminated (156a/72:2-6, 144a/92:21-23). Burke testified that plaintiff was logically guilty of the morphine incident (12a/11:10-14) because there was no other alternative as a result of her investigation; yet there was not a single aspect of her investigation that could have detected narcotic theft. Of course, there were no morphine thefts either before or after the morphine incident (164a/101:14-17).
    11. Defendants have made adherence to policy an issue in this case. Nursing unit 2D Pyxis records (124a-127a) show that during the year 2000 twenty patients received 30mg vials of morphine or of Demerol for Patient Controlled Analgesia (PCA), yet records indicate that only two of those vials by a single nurse were wasted at the end of therapy as mandated by policy M-15-6 (130a); at the end of therapy there is always an excess narcotic remaining and this can be an appreciable amount which can be close to the original volume, therefore these excess narcotics were unaccounted for. Similar records for 1999 show the same behavior regarding the non-adherence to policy (124a-127a). These proven policy violations, which refute false statement by defendants (183a/13:17-19), regarding the end-of-therapy PCA narcotic vials demonstrate that record keeping omissions and/or errors can be discovered if that is the goal; it also demonstrates that there is no basis to claim that nurses at Community keep perfect records. Plaintiff received records from the NJ Attorney General's office that show that his supervisor Sherry Margolies removed a Valium tablet for one of plaintiff’s patients (Patient C) but did not make the corresponding entry into the patient record nor did she destroy the Valium as required by policy if she did not give it to the patient (135a-137a); defendants falsely stated that no such evidence existed(183a/13:17). According to testimony by Corporate Director Manzo this single error/policy violation by Margolies could be grounds for termination (138a/22:22-25, 139a/23:1-6), however no policy exists that mandates the termination of a nurse after she makes one, or two, or seven record-keeping errors (141a). Burke testified (156a/72:9-12) that a single record keeping error is permitted before termination is warranted, however no such policy exists; further, this testimony contradicts existing policy (141a). Regarding the absence of a policy that mandates termination after a nurse makes a single charting error, Corporate Director of Labor Relations Manzo testified that he was not aware of penalty guidelines for specific offenses (140a/19:7-15) an example of which are penalty guidelines for charting problems which are clearly specified in the Employee Handbook (141a); Corporate Director of Labor Relations Manzo did however testify that he is at least aware that employees are provided with such a handbook (140a/19:7-11). Plaintiff has never disputed that he made seven record keeping omissions during the course of eight weeks, yet defendants, in an apparent effort to show that these omissions were serious offenses worthy of serious repercussion, needlessly itemized the demonstrably meaningless omissions for Judge Oles who in turn repeated the needless itemization in his written opinion (56a-63a) while ignoring plaintiff’s reasoned argument.
    12. The discovery of the morphine incident by Caballero was effected by a violation of hospital policy M-15-6 (128a), namely by obtaining a Pyxis summary for Patient A (9a) as a prelude to withdrawing a narcotic for him (10a) from the Pyxis; policy M-15-6 (128a) mandates that a physician’s order be verified before such a withdrawal. Before a Pyxis narcotic withdrawal is made, the dosing schedule must also be known. A Pyxis summary for a patient cannot verify the existence of a physician order nor can it provide information about the dosing schedule. The MIS system can provide verification of the physician order and information about the dosing schedule, however a check of the MIS system could not have resulted in the allegedly required discovery of the morphine incident. At the time that Caballero decided to obtain the Pyxis summary for Patient A, she was ten feet distant from two MIS terminals (10a). It is unquestionable that the only utility of the Pyxis summary for Patient A that Caballero obtained as a result of her highly irregular action was to discover the morphine incident two hours after the illicit removal; of course, this highly irregular action is consistent with an orchestration of the morphine incident. On the evening of the morphine incident a policy-mandated narcotic inventory/count was not done (6a/103:11-15). After the inventory/count is done, a printout of the shift's narcotic usage is examined by the charge nurse ((6a/103:2-6, 7a/16:6-10) who supervises the conduct of the nursing unit. This violation of policy enabled the day shift nurses including plaintiff to go off duty before the discovery of the morphine thefts under his PIN; this precluded immediate investigation of the thefts before anyone present at the time of the thefts went off duty. An immediate investigation before the day shift went off duty would have included questioning of the day shift and the night shift nurses who were both present at the time of the thefts, and a question would be asked regarding anyone’s observation of someone exiting the clearly visible medication room door(177a) at the time of the thefts; the medication room door is at the nursing station which in turn was crowded with nurses at the time of the thefts due to the change of shift; Caballero, who discovered the morphine incident, was starting her night shift. Clearly, it is consistent with an orchestration scenario that it was in defendants’ best interest that this questioning did not occur, and indeed it never occurred. In an apparent effort to negate plaintiff’s allegation that the inventory/count was deliberately not conducted, defendants have stated that the responsibility of ensuring the end-of-shift narcotic inventory/count belonged to all the nurses, however it was plaintiff’s nine-year experience at Community that the charge nurse had the responsibility to delegate the inventory/count; otherwise, all the nurses on the evening of the morphine thefts were negligent in their responsibility to ensure that the inventory/count was done; perhaps they, like plaintiff, did not ensure that the inventory/count was done because it was not their responsibility. Nevertheless, it cannot be credibly argued that all the nurses were responsible for ensuring that the charge nurse reviewed the shift’s usage of narcotics (6a-7a).
    13. After the discovery of the morphine thefts under plaintiff’s PIN, a clear attempt to further smear his name was made as evidenced by a security representative’s incident report in which it is stated that he was told that plaintiff reads gun magazines and that he talks to the nurses about a gun collection (11a); of course, it can be credibly argued that the implication of this notice by night-shift nursing administrator Christine Reynolds was that plaintiff was a potential threat, yet plaintiff’s compassion was documented (108a-120a).
    14. Burke was the primary investigator in this case and she testified that the morphine thefts were discovered as a result of a late narcotic inventory/count being conducted (6a/103:11-15), however Caballero’s statement (10a) indicates that the discovery of the morphine thefts was as a result of obtaining the Pyxis summary. An inventory/count, which is a legitimate procedure done at the end of each shift, is not the same as obtaining a Pyxis summary for a patient which is neither a practical or legitimate procedure regarding the withdrawal of a narcotic for a patient. Burke's testimony regarding the discovery of the morphine incident under plaintiff’s PIN is a clear attempt to conceal the true circumstances regarding the discovery of the thefts. In his letter in support of Summary Judgment, Judge Oles ignores this perjury by Burke(56a-63a).
    15. Demonstrable evidence exists that the morphine thefts were orchestrated to suggest that the thief needed a re-fill vehicle for use with the 30mg vial of morphine, namely the theft of a single 2mg morphine syringe. The morphine thefts were certain to be discovered as supported by testimony by Burke(6a-7a). There were three 30mg morphine vials and three 2mg morphine syringes available to the thief, yet she only removed a single vial and a single 2mg syringe; there was nothing to prevent the theft of all three morphine vials and all three 2mg morphine syringes. Further, anyone with access to the Pyxis cabinet to steal the morphine also had access to a readily available supply of unmonitored plastic safety syringes which could easily be used as a re-fill vehicle. The theft of the single 2mg syringe was therefore needless; it cannot be credibly argued that the thief wanted merely an additional 2mg of morphine, and it cannot be credibly argued that she needed a re-fill vehicle. The theft of the single 2mg morphine syringe was an obvious and juvenile attempt to suggest that the thief wanted a re-fill vehicle. Judge Oles ignored the unquestionably peculiar circumstance surrounding the morphine thefts (58a-59a).
    16. Corporate director Arnold Manzo testified that he advised plaintiff’s suspension because of a number of suspected , unknown yet serious (160a/10:22) charting errors (159a/9:1-11) despite the nonexistence of a policy that warrants the suspension of a nurse because it is suspected that she made charting errors (141a). Further, it is consistent with the facts of this case that the Corporate Director of Labor Relations for the Saint Barnabas Health Care System, who is based in northern New Jersey far distant from Community, allegedly gave this advice, because of suspected charting errors, between 9PM Sunday 7 January which was the time of the discovery of the morphine incident, and well before the arranged 8AM suspension meeting on 8 January 2001. Disregarding the absurdity of Manzo’s testimony regarding suspected charting errors, Burke could not not have known about charting errors, suspected or confirmed, prior to plaintiff’s suspension. Burke testified that she could not conduct essential questioning (123a/86:2-8) of the patients who were associated with plaintiff’s charting errors because they had already been discharged from the hospital (161a/27:21-25). One of plaintiff’s charting errors was made on Saturday 6 January 2001 (154a/Patient F) therefore it is reasoned that Burke did not know about plaintiff's charting errors prior to that date. The narcotic inventory/count was not done on Sunday 7 January 2001 at the end of the day shift as mandated by policy therefore it is reasonable to assume that Burke's investigation was not in progress before the discovery of the morphine incident at 9PM Sunday 7 January 2001; if plaintiff was suspected of narcotic theft, it cannot be credibly argued that the inventory/count would have been forgotten at the end of the day shift on 7 January. Burke does not work on week-ends or on the night shift therefore she could not have known about a number of charting errors well before plaintiff's arranged suspension meeting at 8AM on Monday 8 January 2001; Manzo could therefore not have been told by Burke before 8AM 8 January 2001 about a number of charting errors. A page from the hard copy of the Pyxis records that were required by Burke in order to investigate plaintiff's nursing records is attached (162a); the multi-page Pyxis records for Burke’s investigation were obtained more than one week after plaintiff's suspension and were dated 17 January 2001; plaintiff’s record keeping errors could not have been discovered without these Pyxis records; this is further support for establishing that Burke did not know of plaintiff’s charting errors before his suspension on 8 January 2001. Judge Oles ignores this perjury by Manzo regarding a number of suspected charting errors; it is undisputed that plaintiff was suspended because of the morphine incident despite Manzo’s testimony that plaintiff was suspended because of suspected charting errors.
    17. Manzo testified that he was unaware of the morphine incident under plaintiff’s PIN until the afternoon of his deposition in January 2003 (160a/10:5-11) despite his being allegedly involved with plaintiff’s case from the outset on 8 January 2001 (158a/8:17-22, 160a/10:19-25) and until at least one month after plaintiff’s termination in April 2001 (18a-19a); this testimony is consistent with Manzo's distancing himself from the morphine incident. Yet Burke testified that Manzo praised (164a/101:2-13) her investigation, which implies Manzo’s knowledge of the facts of the investigation. Judge Oles ignored this significant perjury by a hospital administrator.

POINT TWO

ESTABLISHMENT OF SUBSTANTIVE FACTS IN DISPUTE

In his letter in support of granting Summary Judgment to defendants, Judge Oles repeatedly ignores that there are genuine issues regarding material facts in dispute, and grants Summary Judgment to defendants in disregard of Rule 4:46-2. The facts in dispute follows:

Facts in Dispute


Defendants claim that they did not retaliate against plaintiff; Judge Oles too claims that there is absolutely no evidence of retaliation in this case (62a). However plaintiff has tangible evidence of retaliation: the orchestration of
the morphine incident; the suspension against policy despite the complete absence of indicators that plaintiff needed to steal morphine; no drug testing; suspension against policy in order to preclude the only legitimate investigation of plaintiff’s alleged narcotic theft; irrelevant investigation of plaintiff’s nursing records; false allegations against plaintiff by Burke; and termination against policy for a fabricated reason regarding meaningless and unintentional record keeping errors that are inherent to staff nursing despite documented above-average nursing performance.

Fact in Dispute
Defendants claim that Community nurses keep perfect records and that the charting standard is perfect charting, however there is evidence of as many as thirty four record keeping violations during two years regarding the Patient Controlled Analgesia (PCA) narcotic vials on nursing unit 2D; these violations involve unaccounted-for discontinued narcotics at the end of PCA therapy and involve only a small part of record keeping on a single nursing unit and were pointed out without conducting a detailed examination of the nursing records of the nurses on unit 2D. At least eight additional policy violations by others can also be addressed by plaintiff supported only by the few records provided to him by the NJ Attorney General’s office which in turn received them from Community; because of the morphine incident, the Attorney General’s office became involved in this case; that involvement has been concluded with no action being taken against plaintiff (133a-134a).

Fact in Dispute

 
Plaintiff claims that record keeping omissions are inherent to staff nursing; perhaps the best support for this claim is the fact that Burke conducted an irrelevant yet detailed and time-consuming examination of plaintiff’s nursing records because she knew that the record keeping practice of any staff nurse could be attacked; this investigation according to Burke was a formal investigation (142a/10:8-16) that was not set forth by policy and required neither drug testing or the preparation of a written report. Yet this irrefutable logic exposing harassment by Burke was ignored by Judge Oles.

Fact in Dispute


No evidence has been presented that establishes a charting standard at Community, therefore no definition exists for substandard charting practice for which plaintiff was terminated.

Defendants claim that a charting standard is established by policy M-03 (132a) which merely instructs that administered medications are to be entered into the patient record as GIVEN. Defendants claim that the charting standard is perfect charting which in turn defines substandard charting which in turn makes obsolete the policy that establishes disciplinary guidelines for documentation errors (141a). According to defendants’ definition of substandard charting, termination is automatic when a nurse makes a single record keeping omission despite the reasoned argument by plaintiff that such errors are inherent to staff nursing. The Unreported Scheduled Meds (131a) printout lists medications that were detected by the computerized MIS record keeping system that were not entered into the patient record; obviously, this printout was not developed solely for plaintiff’s benefit. According to defendants’ definition of substandard charting, the Unreported Scheduled Meds list(131a) identifies nurses who are to be terminated since it cannot be credibly argued that there is a clinical difference between the charting of an administered medication three hours after the fact (131a) and the charting of an administered medication three months after the fact.

Fact in Dispute
Plaintiff claims that his record keeping omissions were meaningless; this claim is of course disputed by defendants. Plaintiff’s unintentional record keeping omissions were detected only because of a deliberate effort many weeks after the fact. At the time that the record keeping omissions occurred they were not detected by a physician or by plaintiff’s nursing colleagues, therefore it cannot be credibly argued that the patients’ medication records that were kept by plaintiff were consulted by anyone at that time. If the patients’ medication records were not consulted, it cannot be credibly argued that the medication records had any influence on the patients’ hospital care, therefore it cannot be credibly argued that plaintiff’s record keeping omissions were anything other than meaningless. It is a misconception that all patient records, including medication records kept by the nursing staff, are equally significant and that they all influence a patient’s hospital care. The Unreported Scheduled Medication printout (131a) exists specifically because the patient medication record is not checked routinely by anyone; if such routine checks were made, there would be no need for this printout; if such routine checks were made, record keeping omissions would be promptly discovered making a special LATE ENTRY charting option obsolete (note: the LATE ENTRY charting option exists specifically to make record keeping entries on a date after the fact, and does not exist to make late time
notations); indeed, the Unreported Scheduled Meds printout exists specifically because record keeping omissions occur. However, plaintiff’s nursing unit 5C did not employ the Unreported Scheduled Meds printout to remind a nurse of record keeping omissions.

Fact in Dispute
Burke and/or Manzo have quantified plaintiff’s seven record keeping omissions during an eight week period as being numerous
even though plaintiff made an estimated minimum 1000 medication entries during that time. No evidence of a study or a policy has been presented which defines numerous and establishes the maximum number of record keeping omissions during a particular period of time that mandates the termination of a nurse; only the word of either Burke or Manzo defines numerous. Plaintiff disputes that seven record keeping omissions during the course of eight weeks are numerous. Regardless of the definition of numerous, plaintiff claims that the only relevant issue is the meaningfulness of each of his omissions.

Fact in Dispute

Disregarding the demonstrable perjury of Burke and Manzo, their position that plaintiff was responsible for serious errors is inconsistent with the documentation about plaintiff that he had an above-average knowledge base for delivering safe and responsible care to his patients and that he had a sincere interest in the welfare of his patients(105a-120a). It is consistent with both the documentation about plaintiff and with examples of his letters to hospital administrators which demonstrate his concern for the patient that his record keeping omissions were in fact meaningless; otherwise, it is reasonable to state that he would have ensured in order to protect his patients that record keeping omissions did not occur. Further, no evidence was presented that either Burke or corporate director Manzo was competent let alone proficient regarding knowledge of physiology and pharmacology thereby qualifying them to make clinical pronouncements such as serious nursing errors; the fact that Burke is a nursing administrator does not prove her clinical competence. Plaintiff however was a Staff Level Three (the highest rated) certified critical care nurse who was known for his above-average technical knowledge base (106a).

Fact in Dispute

Regarding serious nursing errors, in no instance was a patient given a duplicate dose (double-dosed) because of plaintiff’s supposedly numerous record keeping omissions, therefore it would seem that the probability that a patient was at risk for being double-dosed was negligible if not zero. No evidence was presented to show that patients at Community, where medications are given to the patients only by their assigned nurse or by a specially-designated medication nurse, were double-dosed as a result of record keeping omissions. No evidence was presented other than ominous rhetoric by defendants, for example ‘death from over-medication’, that a patient’s hospital care was in any way adversely affected or could have been adversely affected as a result of record keeping omissions by staff nurses.

Plaintiff’s seven record keeping omissions involved Xanax, Valium, and a single dose of the analgesic Percocet. Regarding the patient at risk in the unlikely event of his being double-dosed because of plaintiff’s record keeping omissions, it cannot be credibly argued via the use of pharmacological and physiological fact, nor was evidence presented, that double-dosing could have caused the patient to suffer any adverse effects including mild adverse effects; this can be extended by stating that it cannot be credibly argued that double-dosing could have caused adverse effects such as respiratory depression, adverse cardiovascular effects, decreased level of consciousness, or as Judge Oles fears (180a/7:24) addiction to narcotics. Valium and Xanax are both known for their intrinsic safety which is due to their pharmacokinetics; further, the doses involved were well below the recommended daily maximum doses. Although maximum daily doses regarding Percocet have not been established, nor have doses been established which can cause adverse effects, it is unquestionably true that the double-dosing of Percocet could not have caused adverse effects.

In all seven instances regarding plaintiff’s record keeping omissions, the involved patients received regular doses throughout their hospitalization of either Xanax, Valium, or Percocet; for example, the patient associated with the single Percocet record keeping omission was given five other recorded doses of Percocet by plaintiff. It cannot be credibly argued that a record keeping omission among multiple recorded doses was other than meaningless.

Fact in Dispute
In his letter in support of Summary Judgment, Judge Oles demonstrates his clear bias and states without any supporting evidence other than testimony by Burke and/or Manzo that plaintiff's record keeping omissions were manifestations of poor nursing practice (62a). There is especially no excuse for Judge Oles to falsely state (62a) that plaintiff admitted his poor nursing practices; such a false statement by Judge Oles is verified by the court transcript(178a-186a); plaintiff admitted his record keeping omissions, but he did not admit that they were examples of poor nursing practice. Indeed, plaintiff claims that his record keeping omissions were meaningless and may never have been discovered if not for Burke’s harassing investigation. As stated, plaintiff’s documented nursing performance was above average, however it is unreasonable to suggest that plaintiff never before made record keeping omissions which are inherent to staff nursing.

Fact in Dispute

Defendants, like Judge Oles, claim that pretext can only be established (184a/15:14-22) by plaintiff’s provision of evidence that other nurses have not been discharged after making record keeping omissions; plaintiff has reasonably established herein (pages 43-44 following) the dishonesty of this claim.

Fact in Dispute

Defendants claim than plaintiff has not established pretext (184a/14:21-25); plaintiff supports his claim of pretext with established policy (141a) that indicated a written reprimand for his first record keeping citation. It is also a fact that no charting standard exists without which there can be no definition of substandard charting for which plaintiff was terminated; only the word of Burke and/or Manzo establishes the definition of substandard.

Fact in Dispute

Plaintiff readily admitted that he unintentionally failed to make seven record keeping entries over the course of eight weeks which were meaningless; defendants as well as Judge Oles (62a) cite this admission as proof that plaintiff’s termination was justified; plaintiff disputes that his termination was justified on those grounds and supports his position by established policy (141a).

Fact in Dispute

Defendants claim that Burke was unaware of plaintiff’s complaint to the State Board of Health shortly before the morphine incident under plaintiff’s PIN, however plaintiff disputes this claim and has clear evidence to support his position. Regarding the time lag between plaintiff’s meeting with Burke on 4 December and the morphine incident one month later, it cannot be credibly argued that the orchestration of the morphine incident could have been authorized, arranged, and executed before the holiday season. Yet Judge Oles states that plaintiff failed to establish a causal link (62a) between his complaint to the State Board of Health and the harassment that began on the first weekend after the end of the Christmas/New Year Day holiday season.

POINT THREE

ESTABLISHMENT THAT PLAINTIFF’S TERMINATION

WAS A PRETEXT FOR RETALIATION

#1 PLAINTIFF WAS TERMINATED AGAINST POLICY AFTER HIS FIRST CITATION FOR RECORD KEEPING OFFENSES (156a/72:13-21). A WRITTEN REPRIMAND WAS INDICATED RATHER THAN TERMINATION (141a).

#2 PLAINTIFF WAS TERMINATED FOR A FABRICATED REASON, NAMELY SUBSTANDARD CHARTING (17a), SINCE NO CHARTING STANDARD EXISTS

Despite the clear establishment of pretext, Judge Oles claims that pretext can only be established by plaintiff’s provision of evidence that other nurses have not been terminated after their first citation for making meaningless record keeping omissions (184a/15:14-22); the only source of such evidence is obviously defendants; assuming that such evidence existed, Judge Oles incredibly suggests that defendants would willingly provide plaintiff upon request with damaging and incriminating evidence of pretext such as ’15 nurses who have not been discharged’ (184a/15:14-22); such evidence does not exist, but it is not because Community nurses have a 35-year history of keeping perfect records.

Policy M-15-6 states that unused narcotics are to be officially wasted, but records show(124a-127a) that policy M-15-6 was repeatedly violated on nursing unit 2D during the course of at least two years yet plaintiff is unaware of mass terminations as a result; plaintiff made Judge Oles aware of these violations prior to his granting of Summary Judgment. Judge Oles places the burden on plaintiff to obtain further proof that Community nurses were not discharged as a result of their failure to keep perfect records; such proof required plaintiff’s access to hospital patient records which were denied to him by defendants and by Judge Oles on the grounds of protecting patient confidentiality.

Unless defendants produce evidence of legitimate and impartial research that show otherwise, it cannot be credibly argued that plaintiff was the first nurse in Community’s 35-year history to make record keeping omissions for which a policy has been established (141a) of which Judge Oles was aware (185a/16:12-14); therefore defendants, who have access to hospital records unlike plaintiff, could have easily negated plaintiff’s existing legitimate claim of pretext by providing a verifiable list of the names of nurses who were terminated after their first citation for making meaningless record keeping omissions, and surely Judge Oles knows this, however no evidence was presented that Community has ever terminated a nurse after her first citation for making demonstrably meaningless and unintentional record keeping errors which have been shown to be inherent to staff nursing.

Further still, it is ludicrous to suggest that Community routinely conducts detailed and time-consuming investigations of nursing records; if such investigations were conducted, it is suggested that few if any staff nurses would survive the resulting carnage at Community if the standards imposed upon plaintiff were maintained. Judge Oles is fooling no one regarding his intellectually dishonest claim regarding the establishment of pretext(184a/15:14-22).

Judge Oles is fooling no one when he ignores clear evidence that the issue in this case is retaliation which explains plaintiff’s termination for any reason including, for example, not making special time notations that are mentioned herein. It is suggested that because of both plaintiff’s above average nursing performance and the complication introduced by Peer Review that he would not have been terminated for no reason (at will), therefore an incident such as the morphine theft was required. It is further suggested that after the morphine incident, defendants required an excuse to terminate plaintiff which is the only explanation for the irrelevant investigation of his nursing records which was guaranteed to provide an excuse. Judge Oles is fooling no one regarding his ignoring the true reason for Burke’s irrelevant investigation of plaintiff’s nursing records when he states that there is absolutely no evidence of retaliation in this case (62a).

PLAINTIFF’S INTERNAL COMPLAINTS

A. Education

Because of the multiple physicians who are associated with each patient at Community, quite often two medications with different names that perform the same pharmacological function will be ordered for a patient by two physicians. It was plaintiff’s experience that many of his colleagues gave ordered medications to the patients without knowledge of the medications' specific actions. In the case of blood thinners, plaintiff clearly remembers numerous instances in which two blood thinners, each working by the same mechanism, were given at the same time by his colleagues; this of course is equivalent to double-dosing, and in the case of blood thinners could lead to excessive bleeding by a cutting injury. The double-dosing of blood thinners is certainly more of a concern because of the impairment of the clotting mechanism than the double-dosing of either Xanax, Valium, or Percocet

 B. Bag-valve device

Defendants as well as Judge Oles (62a) have stated that plaintiff never joined a committee at Community; this is true, and it is also irrelevant to his claim of CEPA violation, however the following explanation will describe how plaintiff's unsolicited advice was received by Community administrators.

Plaintiff did not have an opportunity to respond to an emergency at Community known as a 'code' until several years after he became a nurse. A 'code' refers to the instance in which a patient expires with the resultant efforts to resuscitate him. Used during a 'code' is an emergency piece of equipment known as a bag-valve device, and it is used to deliver oxygen to a patient who has stopped breathing. A rule of thumb is that the likelihood of irreversible brain injury increases exponentially after two minutes of respiratory arrest. It is also a fact that the respiratory arrest of a patient is most often not immediately discovered, and by the time resuscitation equipment arrives at the bedside this two-minute period is close to an end. The bag-valve device was kept at one time in a stand-by state of complete disassembly into four pieces. When plaintiff responded to his first code, he could not assemble the bag-valve device quickly which was primarily due to the stress involved in that type of situation but was in part also due to his unfamiliarity with the bag-valve device’s assembly. Over the years plaintiff had witnessed other unnecessary delays by other nurses regarding the assembly of the bag-valve device; it cannot be credibly argued that the combination of stress, even by experienced personnel, and the unfamiliarity with the device’s assembly could not cause a delay of up to 30 seconds in the delivery of oxygen to a patient who had stopped breathing. Plaintiff’s suggestion that the bag-valve device be completely assembled and ready to be put into immediate action, a measure that could have decreased the chances of a patient suffering irreversible brain injury, was rejected based on a majority vote by a committee (89a-90a). Regarding Judge Oles irrelevant statement about plaintiff’s failure to join a committee (62a), it is absurd to suggest that plaintiff’s concerns would not be addressed unless he joined a committee.

Plaintiff made clear his experience regarding the inadequacy of nursing education (3a and 80a); it is questionable that a committee ruled by majority vote would support plaintiff regarding his call for more rigid educational requirements rather than maintaining a system whereby educational credentials could be literally purchased through the mail.

Plaintiff’s repeated internal complaints regarding educational concerns, the use of diapers, and his concern about the bag-valve device may not have caused the retaliation evidenced by the morphine incident, but they were without doubt contributory to the decision to get rid of him once and for all after his complaint to the State Board of Health, therefore they must be allowed to remain part of this case. Plaintiff’s internal complaints were not opinions, but were reflections of observations of fact.

Plaintiff’s complaint about the bag-valve device is relevant to this case because one of his letters about its disassembly in the stand-by mode was the only one of his letters that Burke allegedly remembered (66a/46:2-11).

CONCLUSION

Plaintiff has shown numerous times that there are genuine issues regarding material facts in dispute which were ignored by Judge Oles. The facts in dispute by the plaintiff are in every case supported by reasoned explanations in synergy with established fact.

Plaintiff has overwhelmingly established a basis for legal action against the defendants, namely the establishment of all four legal elements regarding a CEPA claim plus the establishment of pretext. Because of demonstrably clear perjury by several hospital administrators, their testimony cannot be considered to be credible; at best, their testimony results in facts in dispute, yet Judge Oles based his decision regarding Summary Judgment on these individuals.

Defendants have a propensity to fabricate, disregard, and tailor policy to suit the occasion, and examples of this propensity are: the denial of requested legal representation when plaintiff was called to respond to allegations by Burke; the fabrication of a non-existent charting standard; plaintiff’s suspension against policy after the morphine incident; disregarding policy-mandated drug testing; disregarding a policy-mandated drug theft detection method which checks for patterns of unusual narcotic removals from Pyxis; fabricating an irrelevant and fraudulent, but formal, investigation into alleged narcotic theft that was not set forth by protocol, that did not include drug testing, that did not include the preparation of a written report, and that did not include relevant questions about plaintiff; and disregarding policy regarding disciplinary guidelines for documentation errors. When an employer tailors, fabricates, and disregards policies in order to effect a negative outcome for a long-time, above average employee who recently engaged in whistle-blowing activity, the employer is guilty of violating New Jersey law (NJSA 34:19-1 et seq.); Burke’s testimony that she was unaware of plaintiff’s Board of Health complaint, until the first deposition in this case. will surely not fool a jury. Because of the clear evidence that a jury will find in favor of plaintiff, the Appellate Court is requested to allow plaintiff to continue his quest for justice because of the wrong that has been done to him by the defendants, and the Appellate Court is requested to retain Counts One and Four of plaintiff’s complaint (22a-23a).

This appeal cannot exclude mention of Judge Oles’ clear attempt to conceal not only defendants’ unquestionably clear violation of CEPA, but that he is also clearly attempting to conceal on behalf of defendants evidence of a violation of federal law (Identity Theft Act, USC Title 18 section 1028) as well as evidence of violation of NJSA 2C:21-17(theft of identity), NJSA 2C:2-6/2C:5-2 (conspiracy), and NJSA 2C:28-1 (perjury); Judge Oles completely ignored strong evidence that supported the allegation that the morphine theft was orchestrated (trial court opinion, 56a-63a). Further, despite seemingly overwhelming evidence to support an orchestration scenario, Judge Oles states that, regarding the morphine incident, plaintiff was held responsible (57a) for all transactions that occurred under his PIN as if to underline plaintiff's guilt for allowing his PIN to be stolen by a trusted colleague who was tasked with that mission.

Instead of addressing relevant issues such as facts in dispute, Judge Oles addresses irrelevant topics such as plaintiff’s failure to join a committee (62a), the arguably incompetent conclusion (174a) of the State Board of Health who determined that plaintiff’s concern about diaper usage was unwarranted, and plaintiff’s failure to seek Peer Review (62a) in an atmosphere in which he strongly believed that the morphine incident was orchestrated; the ultimate outcome of Peer Review incidentally would have been decided, according to policy, by Manzo. Of course, as mentioned previously, Judge Oles lists (56a-63a) in detail each of plaintiff’s undisputed and demonstrably meaningless record keeping errors. Each of the irrelevant topics mentioned by Judge Oles were of course previously addressed by defendants.

It is no small concern that Judge Oles’ clear bias, which is clearly unfounded by the evidence in this case, is motivated by an obvious reason which is outside a court of law. If Summary Judgment is denied to defendants, plaintiff requests that a Change of Venue be ordered to Cape May County; a request for a Change of Venue has already been denied by Judge Oles. It is feared by plaintiff that the clear bias demonstrated by Judge Oles in favor of defendants is not a coincidence but is rather exemplary of politically-influenced judges at the Ocean County Superior Court in Toms River where Community Medical Center is located.

___________________

David A. Miller

 

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