Letter from Rosenfeld & Associates, the law firm representing Barry Adams, to the Board of Registration in Nursing demand that the BORN re-open Adams’ full complaint.

November 9, 1999

BY COURIER

Ms. Patricia Rossetti
Discipline & Licensure Coordinator
Board of Nursing
Commonwealth of Massachusetts
Division of Registration
239 Causeway Street
Boston, MA 02114

Re: Docket Nos. RN-99-183 & RN-99-184

Dear Ms. Rossetti:

This firm represents Mr. Barry Adams in all matters relating to his complaints filed at the Board of Registration in Nursing (“BORN”).  This submission is presented in response to the BORN’s treatment of Mr. Adams’ complaints thus far, including without limitation its refusal to hear testimony supporting Mr. Adams’ complaints of retaliation by supervising nurses for speaking out against unsafe staffing conditions at Youville Healthcare Center (“Youville”), and the failure of nurse executives to address patient care issues.  We are requesting that the full panel of the BORN which meets on November 10, 1999, reinstate each section of Mr. Adams’ complaint, allow a full investigation into the allegations, and make a determination as to the validity of the charges, as provided by Massachusetts law.  It is our view that reinstatement of the complaints is required as a matter of law.

SUMMARY

On October 15, 1996, and again on September 10, 1998, Mr. Adams filed a complaint at the BORN alleging “patient neglect,” “unprofessional conduct,” and “unethical conduct” by two nurse executives at Youville.  Mr. Adams’ complaints were based on his belief that the Nurse Administrator, Sister Joan Coyne, RN, failed to respond to the concerns he and other Youville staff repeatedly raised about unsafe patient care conditions.  In addition, Mr. Adams alleged that the Director of Nursing (“DON”), Ms. Anne T. O’Sullivan-Poster, RN, illegally fired him in retaliation for voicing his concerns.  At the heart of Mr. Adams’ complaints was the issue of accountability of all licensed nurses, including supervisory nurses, for decisions they make which adversely affect patient care.  

 On September 22, 1999, the BORN refused to address the portions of Mr. Adams’ complaint relating to “unprofessional conduct,” unethical conduct,” and “patient neglect” against Ms. Poster and Sr. Coyne.  It is our belief that the BORN’s failure to hear the above portions of Mr. Adams’ complaint constitutes a violation of Massachusetts law.  Moreover, the BORN’s summary dismissal of Mr. Adams’ claims sent a resounding message to nurses across Massachusetts that complaints made by line nurses will not be taken seriously.
 

QUESTIONS PRESENTED

1. Does the substance of Mr. Adams’ complaint compel a full investigation by the BORN?

2. Would the BORN’s failure to hear Mr. Adams’ complaint in its entirety be a violation of Massachusetts law?

3. Were the BORN’s actions in failing to follow correct procedure with respect to Mr. Adams’ complaints a violation of Massachusetts law?

4.  Would the failure of the BORN to hear Mr. Adams’ complaint in its entirety be sufficient for a successful action in the nature of mandamus against BORN?

Under Massachusetts law, the answer to all the Questions Presented  is “yes.”
 

RELIEF REQUESTED

Mr. Adams requests that the full panel of the BORN: (1) Reverse the executive committee’s decision to dismiss his complaints regarding patient neglect, unprofessional conduct, and unethical conduct; (2) Allow a full investigation into the allegations of his complaint; and (3) After a full hearing, make a determination regarding the validity of the claims.  
 

STATEMENT OF FACTS

1. Youville Health Care Center

A. Early complaints regarding patient safety

Mr. Adams was hired as a registered nurse (“RN”) at Youville on January 2, 1996.  On June 10, 1996, Ms. Poster was hired by Youville as the DON.

 When Mr. Adams first started at Youville, he cared for approximately six patients at any given time.  During the Summer of 1996, Youville implemented cutbacks in the nursing staff for financial reasons.  In response, Mr. Adams’ caseload doubled.  Soon thereafter, Mr. Adams began to notice an increased incidence in patient falls and serious medication errors which led him to become increasingly concerned about the quality of patient care and the safety of his elderly patients.  Examples include a 92 year-old stroke victim lying in her own urine and an  inexperienced nurse preparing 50 times the prescribed amount of medication to inject into a patient’s central venous line.  Following these discoveries, Mr. Adams began to document unsafe practices and correlated the incidences with inadequate staffing and inadequate supervision of inexperienced nurses.  

From July through October, Mr. Adams and other nurses at Youville followed the internal process outlined by Youville to address patient care and safety issues.  Incident reports and hazard reports were filed with the administration, and petitions and letters were drafted and signed by numerous members of the nursing staff who felt that the conditions at Youville undermined their ability to provide safe care to their patients.  Mr. Adams’ first letter to the nursing administration, dated July 22, 1996, is set forth in the Appendix to this letter at Exhibit 1.  In this letter, Mr. Adams states that he is “appreciative of the need for Youville Hospital to maintain cost-effectiveness” but that he also needs “to honor [his] education, [his] ethics, as well as [his] common sense and speak to situations such as the one [he] found [him]self in Sunday night.”  That night, Mr. Adams had been floated to an unfamiliar unit and was asked to assume responsibility for ten patients with acute medical problems.  Because of his concerns, Mr. Adams asked for a meeting with Ms. Hunter, Sr. Coyne and Ms. Poster.  Sr. Coyne and Ms. Poster failed to respond to Mr. Adams’ letter.

B. The response of the managing nurses

Instead, Ms. Hunter informed Mr. Adams that Ms. Poster stated that she is “not going to put up with any nonsense from you and if you want to keep your job you will not do that again.”  Additionally, Ms. Hunter informed Mr. Adams of Ms. Poster’s comment that she was going to terminate him in response to his continued complaints regarding understaffing.  An affidavit from Ms. Hunter confirming these statements can be found in Exhibit 2.

C. First contact with the BORN

In or about August 1996, Mr. Adams called the BORN asking for advice regarding the conduct of administrative nurses at Youville.  He indicated at that time that he was concerned with patient safety issues.  Ms. Betty Lindbergh, the Nurse Practitioner Coordinator, stated that Mr. Adams could file a complaint at the BORN, and sent him complaint forms in the mail.  

 On September 12, 1996, Mr. Adams wrote Ms. Poster detailing four medication and patient care issues, including one involving himself, which directly correlated with the understaffing of the East-2.  Mr. Adams ends his letter stating that he hopes “we can search together for solutions that will benefit all concerned, primarily our patients.”  See Appendix,  Exhibit 3.  Once again, Mr. Adams’ communication went ignored by Ms. Poster.

D. The beginning of the retaliation
   
On September 13, 1997, Ms. Poster finally agreed to meet with Mr. Adams regarding the inadequate staffing issues.  During this meeting, Mr. Adams discussed the various patient hazards he had witnessed, including his own medication error.  Ms. Poster responded that “there are no unsafe working environments, only unsafe nursing practices.”  Ms. Poster further instructed Mr. Adams that he would have time to provide better nursing care if he “stopped writing novels and diatribes.”  Ms. Poster refused to address the issues of patient care and safety on the unit.

On September 23, 1996, seven employees of Youville presented a petition, prepared by Mr. Adams, to Ms. Hunter.  This petition referenced a conversation the nurses had with Phil Beatty of the Division of Labor at the Attorney General’s Office.  Mr. Beatty advised the nurses to “work out an acceptable plan with administration” in order to address their understaffing issues.  (See Appendix, Exhibit 4).  The following day, Ms. Poster and Ms. Joanne Parsons, the Director of Human Resources, agreed to meet with Mr. Adams and Ms. Hunter.  The purpose of the meeting was to discuss a process for resolving and reporting nursing practice issues.

During this meeting, Mr. Adams again raised the issue of inadequate staffing on East-2, to which Ms. Poster responded that she and Sr. Coyne shared a commitment to the new fiscal budget, which was not flexible.  However, Ms. Poster also agreed that practice issues existed on the unit which required attention.  Unfortunately, she failed to give these issues the attention they were due in the ensuing weeks.  (See, Appendix, Exhibit 5).

Instead, Ms. Poster and Sr. Coyne drafted a “staffing grid” which was posted by Ms. Hunter at the Nurses’ Station on October 1, 1996.  This grid stated that one nurse would be responsible for ten patients during the evening shift.  This “staffing grid” served to legitimize and reinforce the understaffing issues on the floor, rather than aid in eliminating the problem.

The nursing staff of East-2 immediately approached Ms. Hunter, outraged that their concerns had been rejected in favor of a staffing grid which only served to exacerbate the problems on the unit.  In response, Ms. Hunter began the process of organizing a meeting between the staff and Ms. Poster.  Despite Ms. Poster’s reluctance to meet with the staff, Ms. Hunter convinced her to do so pursuant to the internal policy for resolving disputes, and a meeting was scheduled for October 2, 1996.

 On October 2, 1996, five employees, including Mr. Adams, addressed a petition to Sr. Coyne, Ms. Poster and Ms. Hunter stating that the staffing levels as dictated on the grid “would place patients at Youville Hospital at great risk should any unexpected event occur.”  In addition, the petition stated that the “staffing policy shows a lack of concern for the well being of the patients . . . as well as the families of our patients.  Additionally, we believe such a policy violated our educations, our common sense and negates our licensure in the state of Massachusetts . . .”  (See Appendix, Exhibit 6).

Later that day, Ms. Poster conducted a staff meeting for a group of nurses assigned to East-2.  Hours before, Ms. Poster asked Ms. Hunter not to attend the meeting, despite Ms. Hunter’s obvious concern for and support of her staff.  Mr. Adams attended this meeting, as well as Ms. Meredith Scannell, RN, Ms. Marie Waters, RN, and Ms. Lorraine Leeman, LPN, a recent hire at Youville.  A number of issues were raised, including the lack of support by the administration and the administration’s greater concern for the budget than for patient care.  Ms. Leeman, Ms. Waters and Ms. Scannell were especially vocal during this meeting regarding their concerns about patient safety as it related to understaffing at Youville.  (See Appendix, Exhibit 7).

E. Ms. Lorraine Leeman, LPN

Ms. Leeman was hired as a LPN at Youville in March 1996.  This was her first full-time position since receiving her license in October 1994.  Ms. Leeman had been formally evaluated in May and in September as a part of her scheduled “six month” performance evaluation and at both times was thought by her supervisor to be well qualified for her work and to be performing well in her assigned job.   On October 2, 1996, Ms. Leeman spoke out regarding the patient care and staffing issues at Youville.  On October 9, 1999, Ms. Poster placed Ms. Leeman on a disciplinary developmental action plan, which detailed specific areas of improvement on which Ms. Leeman needed to focus.  In particular, the developmental plan states at the end: “Failure to comply with the above will result in a progressive disciplinary action, including termination of your at-will employment.” (See Appendix, Exhibit 8).  Ms. Leeman was eventually put on administrative leave on November 19, 1996, by Ms. Poster, and resigned her employment in December 1999. (See Appendix, Exhibit 9).

   On its face, the actions of Ms. Poster gives rise to an inference of retaliation for Ms. Leeman’s remarks at the October 2, 1996, meeting and of unfair employment practices.  An affidavit from Ms. Leeman detailing the above is attached in the Appendix at Exhibit 10.

F. Ms. Meredith Scannell, RN

 Ms. Scannell filed numerous reports of unsafe conditions related to insufficient staffing pursuant to Youville policy.  According to the administration of Youville, including Sr. Coyne, employees were required to submit one of these reports in the event that they detected an unsafe act or condition at Youville.  (See Appendix, Exhibit 11).  A report of Ms. Scannell’s dated September 9, 1996, is set forth in the Appendix, Exhibit 12, and her October 17, 1996, report is attached in the Appendix at Exhibit 13.

On October 2, 1999, Ms. Scannell was particularly vocal at the meeting with Ms. Poster.  For example, she detailed how, at one point, she was the only licensed nurse for sixteen patients. 

On October 22, 1996, Ms. Scannell was presented with a punitive developmental plan which accused her of poor time management skills. (See Appendix, Exhibit 14).  At some time prior to May 1997, Ms. Scannell resigned her employment at Youville. 

In a letter to the BORN written in lieu of testimony at the September 22, 1999, session, Ms. Scannell writes: “ I also believe that any licensed nurse who is made aware of potential harm to a patient(s) and takes no action should be accountable for that inaction.  I believe that Ms. Poster and Sr. Coyne acted in a way that was clearly unethical and damages the professional image of nursing.”  (See Appendix, Exhibit 15).

G. Ms. Marie Waters, RN

Ms. Waters was employed at Youville for over six years as a staff nurse.  During those years, Ms. Waters had no record of impropriety.  Pursuant to Youville policy, Ms. Waters also submitted several “Reports of Hazard” to Ms. Linda Lahood, Director of Quality Assurance.  An example of one of Ms. Water’s reports is attached at the Appendix, Exhibit 16.

On October 2, 1996, Ms. Waters spoke publicly about the effect the work load was having on patient safety.  Ms. Waters also asked Ms. Poster if she was willing to come to the floor and assist staff nurses in the event of an emergency.  Ms. Poster responded that she would not come to the floor, but would “brainstorm” or “problem-solve” over the telephone. 

On November 1, 1996, Ms. Waters was called into a meeting with Ms. Poster and Ms. Parsons during which they notified her that she was being changed to a rotating shift effective November 15, 1996.  Ms. Poster and Ms. Parsons informed Ms. Waters that the change was being made due to her “time management problem.”  At no time did Ms. Poster give Ms. Waters an example of her time management problem, nor did she provide her with any specific instances of misconduct.  

Ms. Waters eventually resigned from Youville on December 19, 1996.  Her letter of September 15, 1999, to the BORN in support of Mr. Adams’ complaint, and describing in greater detail the above incidents, is set forth in the Appendix at Exhibit 17.

 H. Mr. Adams

On October 16, 1996, Ms. Poster placed Mr. Adams on a disciplinary developmental plan which included a change to a rotating shift.  This action was justified by Ms. Poster due to Mr. Adams’ alleged failure to manage his time, complete his assignments, complete Medicare paperwork and his discouraging staff from working overtime.  Mr. Adams’  developmental plan mirrored Ms. Scannell’s and Ms. Leeman’s in substance.  (See Appendix, Exhibit 18).  

Ms. Poster’s concerns regarding Mr. Adams were refuted by Mr. Adams’ July 11, 1996, evaluation, which stated that he conducted himself “in a professional manner,” “served as an excellent role model,” and “is an advocate for” his patients.  (See Appendix, Exhibit 19). 

While Ms. Poster and Ms. Parsons indicated to Mr. Adams that the development plan was not punitive, the last sentence of the plan states, “[f]ailure to meet the goals stated will result in Corrective Action up to and including termination.”  That day, Mr. Adams wrote Ms. Poster and Ms. Parsons regarding his objections as to their characterization of his performance.  For example, Mr. Adams stated that he never discouraged staff from working overtime, and asked for a meeting with the nurses, Ms. Karen Wells and Ms. Jennifer Vichy, who allegedly made the statements to Ms. Poster.  (See Appendix, Exhibit 20).  Mr. Adams also wrote Ms. Parsons regarding his response to the accusation that he had failed to fill out his Medicare paperwork.  (See Appendix, Exhibit 21).   Finally, Mr. Adams stated that he was unwilling to sign or agree to the development plan..

On October 17, 1999, Mr. Adams met with Ms. Parsons, Ms. Poster, Ms. Wells and Ms. Vichy.  It was confirmed by Ms. Wells that Mr. Adams never said anything to discourage her from working overtime.  During that meeting, Ms. Poster indicated to the three nurses that they were prohibited from discussing matters relating to working conditions while they were on duty.  Mr. Adams’ October 18, 1999, letter to Ms. Parsons setting forth the substance of this conversation is attached in the Appendix at Exhibit 22. 

At the end of the meeting, Ms. Parsons went to see Sr. Coyne and asked for permission to terminate Mr. Adams.  Sr. Coyne granted the request despite the fact that she had never met or spoken with Mr. Adams during his employment at Youville. 

On October 18, 1999, Mr. Adams was fired from his position at Youville by Ms. Poster, who cited Mr. Adams’ “demeanor, language and insubordination” as reasons for his termination. (See Appendix, Exhibit 23).  In addition, both Ms. Scannell and Ms. Waters were switched to rotating shifts due to their inability to manage their time.  All three nurses subsequently filed a complaint with the National Labor Relations Board (“NLRB”) regarding their illegal terminations.
 

 II Mr. Adams’ First Complaint Filed at the BORN 

On October 15, 1996, Mr. Adams filed a complaint of “unprofessional conduct,” unethical conduct,” and “patient neglect” against Ms. Poster and Sr. Coyne, using the forms previously sent him by the BORN.  (See Appendix, Exhibit 24).  Specifically, Mr. Adams’ complaint was based on Ms. Poster’s refusal to acknowledge the concerns and assessments of a staff of registered nurses related to patient safety issues and her methods of intimidating those nurses who spoke up, and Sr. Coyne’s lack of response to nurses requests for help, and her refusal to meet with any of the professional nurses expressing their concerns for patient safety.   Mr. Adams also included a cover letter asking the BORN three questions regarding nursing practice issues directly relating to his complaint.  

On October 20, 1996, Mr. Adams supplemented his complaint with additional information, including notification of his recent termination.  (See Appendix, Exhibit 25).

On October 30, 1996, Mr. Adams wrote the Department of Public Health (“DPH”) regarding the unsafe staffing conditions at Youville.  (See Appendix, Exhibit 26).  Mr. Adams understood at that time that DPH was the appropriate agency to address the understaffing issues, while the BORN was the appropriate agency to address the unprofessional conduct of Ms. Poster and Sr. Coyne, both of whom are licensed by the agency.

On November 12, 1996, Ms. Helena Gallant Tripp, the Supervisor of Healthcare Investigators at the BORN, wrote Mr. Adams stating that the issues addressed in his letter “relate to administrative and personnel policies of the facilities and do not appear to be ones over which the Board of Registration in Nursing has jurisdiction.”  (See Appendix, Exhibit 27).  Ms. Tripp directed Mr. Adams to the DPH.  Neither Ms. Tripp nor any individual at the BORN responded to the nursing practice questions Mr. Adams raised in the cover letter attached to his complaint.

On December 4, 1996, Mr. Adams received a letter from DPH thanking him for alerting them to his concerns regarding Youville.  (See Appendix, Exhibit 28).
 

III DPH Investigations Regarding Youville

A. First Investigation

DPH investigated Mr. Adams’ complaint of October 31, 1996, regarding the patient care and medication issues he outlined to Ms. Poster in September 1996.  Unfortunately, DPH concluded that it was unable to determine the validity of the complaints, but instituted corrective actions where necessary.  (See Appendix, Exhibit 29).

 B. Second Investigation

On October 9, 1996, in the midst of the staff concerns regarding inexperienced nurses with overwhelming responsibility, a patient at Youville died due to an accidental overdose of morphine by a new nurse.  Following the patient death, DPH received an anonymous complaint regarding the incident.  On January 13, 1997, DPH notified the facility of the complaint, and on January 21, 1997, Youville administration confirmed the medication incident.  

On January 25, 1997, DPH’s Drug Control Program conducted an investigation into the accidental overdose. (See Appendix, Exhibit 30).      

On March 19, 1997, DPH released the report of their investigation of Youville.  DPH cited Youville with eight deficiencies of patient care including: two counts of “patient care-neglect” and two counts of “lack of professional and technical services” in the Department of Nursing.  The report also faulted administrators for failing act even after DPH visited the facility to document violations.  The report states: “There was no evidence of any corrective measures taken until surveyor intervention on a return visit to the facility seven days later.” (See Appendix, Exhibit 31). 

C. Third Investigation

On January 20 and 21, 1998, DPH conducted an investigation into incorrect medication which had been administered to a patient at Youville with breast cancer over the course of seven days.  DPH concluded that the hospital’s nursing staff failed to adequately verify the medication order received from the pharmacy to make sure it coincided with the doctor’s order.  In addition, DPH faulted Youville for not reporting the incident immediately and found that the accident may have been caused by improper training of the staff.  (See Appendix, Exhibit 32).  Sr. Coyne resigned as the administrator of Youville on January 22, 1998, following this incident.  

In February 1998, Youville hired Covenant Health Systems of Lexington to manage the facility on a temporary basis and to continue to provide assistance on permanent basis in a consulting capacity.  The string of setbacks at Youville led to the closing of the facility at the end of 1998.
 

IV Ms. Poster’s Complaint Regarding Mr. Adams

 On May 12, 1997, just two months before the NLRB hearing regarding Mr. Adams’ termination from Youville, Ms. Poster wrote Ms. Teresa Bonano, RN, MSN, the Executive Director of the BORN, a letter regarding Mr. Adams’ employment at Youville.  In her letter, Ms. Poster accused Mr. Adams of having knowledge regarding a “serious medication error” yet failed to appropriately report the incident.  Moreover, Ms. Poster claimed that Mr. Adams: “[A]ttempted to use this incident to threaten and intimidate the management staff at the facility.  Specifically, on October 16, 1996, Mr. Adams informed Joanne Parsons, Director of Human Resources Team, and me that he had forwarded some information regarding patient and nursing practices at Youville Healthcare Center to the Board of Registration in Nursing and would not share that information with the Facility.  In fact, he stated something to the effect that there will be an investigation.”   Ms. Poster further states that because Mr. Adams failed to report the medication error, the facility did not learn of the error until mid-January 1997.  (See Appendix, Exhibit 33).  

Ms. Poster is obviously referring to the morphine overdose of a patient at Youville on October 9, 1996, when she refers to a “serious medication error.”  Ms. Poster is also accusing Mr. Adams of knowledge of this overdose and of reporting the situation to the BORN for investigation.  Mr. Adams did not have knowledge of the morphine overdose, nor did he report the error to the BORN or DPH.  Mr. Adams did report other patient care issues to both agencies, and consistent with his actions to date, would have reported the morphine incident had he knowledge of it at the time.

Ms. Poster’s outrageous accusations regarding Mr. Adams’ professional integrity have no basis in fact.  Moreover, her failure to thoroughly investigate the facts before writing to the BORN only serves to further substantiate Mr. Adams’ claims that her conduct as a nurse was both unprofessional and unethical.

While we have no information regarding the BORN’s response to Ms. Poster’s letter of May 12, 1997, regarding Mr. Adams, Ms. Poster did file with the BORN on August 28, 1997, a complaint of “unprofessional conduct” against Mr. Adams regarding his alleged knowledge of the medication error.  (See Appendix, Exhibit 34).  Ms. Poster states that “Mr. Adams’ report to the Board of Registration in Nursing was referred to the Department of Public Health and involved a serious medication error.”  Mr. Adams not report the medication error to which Ms. Poster refers to the BORN.  Moreover, as you are aware, the BORN did not forward any such allegation to DPH.  In fact, DPH received an anonymous complaint regarding the error, a fact which Ms. Poster had access to in the DPH report.

Ms. Poster accuses Mr. Adams of failing to follow internal reporting procedures despite his “professional, ethical and moral responsibility as a nurse to follow the defined internal problem immediately upon learning of it.”  Ms. Poster makes very little effort to mask her intentions in filing her  complaint against Mr. Adams.  It is clear that she did so in retaliation for Mr. Adams’ complaint and the DPH investigation of January 1997.  

 Nevertheless, the BORN, knowing that Ms. Poster’s allegations were on their face inaccurate and retaliatory, acted immediately on Ms. Poster’s complaint.  On September 8, 1997, Ms. Pamela J. Mogavero, an Investigator at the BORN, wrote Mr. Adams, notifying him of the action against his license, and requesting extensive documentation regarding his employment at Youville.  Moreover, Poster’s complaint, unlike Mr. Adams’, was assigned a docket number, pursuant to 244 CMR 7.04.  (See Appendix, Exhibit 35).  Mr. Adams responded to the allegations in a letter dated September 25, 1997.  (See Appendix, Exhibit 36).  Finally, on May 21, 1998, after an investigation into Ms. Poster’s complaint, you wrote Mr. Adams stating that the BORN had dismissed the complaint “because of insufficient evidence to support the allegation.”  (See Appendix, Exhibit 37).
 

5. National Labor Relations Board Action

A. May 1997 Hearing

On May 21 and 22, 1997, a hearing on the NLRB action filed by Ms. Waters, Ms. Scannell and Mr. Adams was conducted before Judge Arthur J. Amchan.  Ms. Poster and Ms. Parsons testified during this hearing.

On November 10, 1997, Judge Amchan found that Youville had engaged in unfair labor practices under the National Labor Relations Act (“Act”).  Specifically, Judge Amchan found that: 

· Mr. Adams, Ms. Scannell, and Ms. Waters engaged in protected activity under the Act when they complained to their supervisors about staffing and patient care issues;
· Youville “was motivated by a desire to retaliate against Adams for expressing his differences with management on behalf of himself and others;” 
· Mr. Adams’ “development plan, shift change and termination were motivated by Respondent’s desire to silence him and retaliate against him for concerted protected activities; and 
· Youville “failed to show that it would have taken any of these actions in the absence of his protected activities.”  

Judge Amchan ordered all three nurses reinstated, with back pay, and also ordered Youville to:

1. Cease and desist from

(a) Disciplining, discharging or otherwise discriminating against any employee for engaging in concerted protected activities;
 (b) Prohibiting employees from discussing working conditions during working hours when such discussions do not adversely affect patient care.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.  (See Appendix, Exhibit 38).

In response to the judge’s decision, Sr. Coyne was quoted in the Boston Globe on November 18, 1997, as stating: “We believe that the judge’s limited understanding of nursing practices and health care administration led to an initial recommendation that is unjust and sets a poor standard for patient care.”  (See Appendix, Exhibit 39).

B. Appeal

Youville appealed Judge Amchan’s decision.  On August 27, 1998, a three-panel member of the NLRB upheld Judge Amchan’s order, finding further that Ms. Poster “precipitously adopted a new rule restricting employee discussion of working conditions in response to the employees’ concerted activity.”  The panel stated: “We find that this conduct supports the conclusion that the rule was established in order to stifle and interfere with the employees’ exercise of the Section 7 rights.”  Accordingly, the panel substituted the following for the above-mentioned paragraph 1(b): “Discriminatorily promulgating a rule restricting employee discussions of working conditions for the purpose of interfering with the employees’ exercise of their Section 7 rights.”  (See Appendix, Exhibit 40).
 

VII Mr. Adams’ Communications with the BORN 

A. Patricia Rossetti

On July 7, 1998, Mr. Adams called the BORN and spoke with you regarding the BORN’s definition of unprofessional and unethical conduct.  He also asked why he was investigated regarding these issues, but why his complaint against Ms. Poster was ignored.  You responded that all complaints are investigated.  In response, Mr. Adams referenced his letter of November 12, 1996, from Ms. Tripp regarding his complaint.  At this time, you claimed that there was no file on Mr. Adams’ complaint.  You advised Mr. Adams’ to contact Ms. Tripp regarding the status of the complaint.

B. Helena Gallant Tripp

 That same day, Mr. Adams wrote Ms. Tripp and informed her of his conversation with you.  He also asked Ms. Tripp about the BORN’s conclusions regarding his complaint of October 15, 1996, and the definition of unprofessional and unethical conduct.  Mr. Adams received no response to this letter.

On August 4, 1998, Mr. Adams again wrote Ms. Tripp enclosing his original complaint, cover letter and his July 7, 1998, letter. (See Appendix, Exhibit 41).

On August 6, 1998, Mr. Adams received a letter from Ms. Tripp stating, in pertinent part: “Any information that you seek from the Board of Registration in Nursing regarding its policies or definitions should be requested from the Board staff in room 1519 of this building.”  The letter underlines that the BORN has “no pending complaints filed by you,” and that the issues raised are under DPH jurisdiction. (See Appendix, Exhibit 42).  Mr. Adams was never informed that his complaint had been dismissed.

On August 8, 1997, Mr. Adams responded to Ms. Tripp’s letter explaining his confusion regarding his complaint of October 1996.  Mr. Adams wrote that his complaint was clear in stating that the allegations were unprofessional conduct and not over-staffing.  Finally, Mr. Adams asked that Ms. Tripp review his complaint forms of October 1996 and send him new complaint forms so that he may refile his original complaint with new information.  (See Appendix, Exhibit 43).  Mr. Adams never received a response to this letter, nor did he receive new complaint forms from the BORN.

That same day, Mr. Adams also wrote to the BORN staff in room 1519, asking his questions regarding BORN policies and procedures. (See Appendix, Exhibit 44).  Again, Mr. Adams received no response from the BORN.

After researching the BORN regulations, Mr. Adams wrote Ms. Tripp on August 25, 1998, asking whether Ms. Poster and Sr. Coyne were issued written notification regarding his complaint and whether they were notified of the BORN’s conclusions on the matter.  Most significantly, however, Mr. Adams also asked the BORN if it had investigated any complaints stemming from violations of Massachusetts law which require nurses to advocate for patients and/or report incidents of neglect in the elderly and/or handicapped.  He further mentioned the DPH report which cited Youville for “patient care neglect” and “lack of technical and professional services” in nursing.  (See Appendix, Exhibit 45).

On September 1, 1998, Mr. Adams received a letter from Ms. Tripp restating that the issues of unprofessional conduct he referred to were “those of administrative and personnel policies of the facility,” and were addressed by DPH.  This is despite the fact that Mr. Adams’ complaint clearly referenced the conduct of Ms. Poster and Sr. Coyne, and not the general policies of the facility.  Ms. Tripp further stated that the questions regarding BORN policies had been forwarded to Ms. Bonanno.  (See Appendix, Exhibit 46). 

 C. Teresa Bonanno

On September 7, 1998, Mr. Adams wrote Ms. Bonanno enclosing his correspondence with the BORN over the last two years and asking for information and advice regarding the appropriate channels to follow to have his questions answered and complaint heard.  (See Appendix, Exhibit 47).  Ms. Bonanno never responded to Mr. Adams.

VII Mr. Adams’ Second Complaint Filed at the BORN

On September 10, 1998, Mr. Adams refiled his complaints against Ms. Poster and Sr. Coyne, enclosing the NLRB rulings and DPH reports.  He also attached to the complaint, all written communications between the staff nurses and the nursing administration at Youville.  (See Appendix, Exhibit 48).

1. The BORN’s initial failure to respond

By October 5, 1998, Mr. Adams still had not received a response to his complaint.  As stated above, it only took the BORN eight days to respond to Ms. Poster’s complaint against Mr. Adams.  As a result, Mr. Adams contacted the Governor’s Office regarding the BORN’s silence regarding his complaints and questions.  This phone call represented the beginning of a series of calls and letters between Mr. Adams, the Governor’s Office and the Office of Consumer Affairs. 

On November 4, 1998, the BORN proposed a change to their regulations.  Included among the changes was a proposed removal of 244 CMR §§7.03, and 7.04, which provide that receipt of all complaints will be acknowledged and assigned a docket number.  The new regulations also include a new section addressing the responsibilities of nurses in management roles. 

On November 12, 1998, Ms. Bonanno finally called Mr. Adams.  During this conversation, Mr. Adams questioned the BORN’s inconsistent response to complaints and its failure to respond to his questions and letters.  Mr. Adams further stated that the BORN was not in compliance with its own regulations, prompting Ms. Bonanno to state that she would review his letter of September 7, 1998, and get back to him.  Ms. Bonanno never responded.

On December 3, 1998, Mr. Adams wrote to the Office of Consumer Affairs asking for assistance with the BORN.  The Office of Consumer Affairs directed Mr. Adams to Ms. Ann Collins, the Deputy Director of the Division of Registration.  A series of telephone conversations between Mr. Adams and Ms. Collins followed.  (See Appendix, Exhibit 49).

 On January 7, 1999, Mr. Adams wrote Ms. Bonanno in order to follow up on their telephone conversation of November 12, 1998, and to ask about the status of his September 10, 1998, complaint.  Mr. Adams cited in his letter the procedural requirements of complaints filed with the BORN.  (See Appendix, Exhibit 50).

On January 20, 1999, a town meeting was held at Newton-Wellesley Hospital regarding the BORN’s proposed regulations.  Expressing concern for the BORN’s proposal that it be allowed the power to suspend a nurse’s license until an investigation is complete, a nurse attorney noted the extreme length of time it takes the BORN to conduct a hearing and complete an investigation.  In response, Ms. Marie McCarthy, the Chairwoman of the BORN, stated that the BORN had developed a new “streamlined” process to handle complaints in a more expedient manner and that the back log of complaints had been resolved.  Mr. Adams challenged Ms. McCarthy’s statement, highlighting his efforts to communicate with the BORN over the prior two years.  Mr. Adams also noted that five months had passed since he filed his complaint at the BORN.  Ms. McCarthy did not respond to Mr. Adams’ statements.

On January 21, 1999, Mr. Adams wrote Ms. McCarthy stating that he believed that the BORN was selective in choosing whom they would discipline.  He further stated that he did not believe that the administrative nurses who terminated him demonstrated “good moral character” or acted in a way that “reflects positively on the profession of nursing.”  (See Appendix, Exhibit 51).  Mr. Adams also enclosed copies of all his prior correspondence with the BORN.  Ms. McCarthy never responded to Mr. Adams.

On January 23, 1999, Ms. McCarthy, supporting the BORN’s proposed regulation suspension of licenses pending investigations, was quoted in the Boston Globe as stating: “But for the life of me, I cannot understand why any professional organization would support allowing a nurse whose behavior has been so egregious to continue practicing with a valid license for one, two, or three years.  I’ll never understand that, never.”  (See Appendix, Exhibit 52).  Ms. McCarthy was referring to a nurse who had been accused of patient abuse.  At this juncture, it had been 27 months since Mr. Adams’ filed his original complaint against Ms. Poster and Sr. Coyne alleging patient neglect. 

2. The BORN’s response

On February 23, 1999, six months after filing his second complaint with the BORN, Mr. Adams received a letter from the Division of Registration, Office of Investigations, acknowledging receipt of his complaint.  The complaint was assigned docket numbers RN-99-183 (Ms. Poster)  & RN-99-184 (Sr. Coyne).  (See Appendix, Exhibit 53).   Seven months passed before Mr. Adams heard further from the BORN.

 On August 25, 1999, three weeks before the BORN’s scheduled public hearings on the “Standards of Conduct for Nurses,” Mr. Adams received a certified letter from you requesting his attendance at an Investigational Conference (“Conference”) on Docket No. RN-99-183 to be held on September 22, 1999.  Mr. Adams was asked to bring with him “any materials/witnesses that may assist the Board in this matter.”  (See Appendix, Exhibit 54).  No mention was made regarding Docket No. RN-99-184, Mr. Adams’ complaint against Sr. Coyne.

On August 27, 1999, Mr. Adams wrote you requesting clarification of the meaning and purpose of the “Investigational Conference.”  In particular, Mr. Adams asked if he needed legal representation at the conference.  (See Appendix, Exhibit 55).

On September 3, 1999, you wrote Mr. Adams stating that the “purpose of this conference is to provide the complaint committee with additional information and to have all parties to these complaints present to respond to any questions the complaint committee may have regarding this matter.”  Moreover, you referred in your letter to both complaints, despite the fact that the Notice of Investigational Conference specified that the Conference was in reference to RN-99-183.  Finally, you state that “it is not necessary for you to be represented by an attorney.”  (See Appendix, Exhibit 56).

Mr. Adams assumed, based on the notice he received on August 25, 1999, that he would have the opportunity at the Conference to present pertinent testimony to members of BORN regarding his complaint.  As a result, Mr. Adams asked Ms. Hunter, Ms. Leeman, Ms. Scannell and Ms. Waters to appear as witnesses, and he prepared his presentation for the BORN.  Unfortunately, Ms. Scannell was unable to attend as she had relocated to London, and Ms. Waters was preparing for surgery around the time of the Conference.  Both individuals sent letters to the BORN in lieu of their testimony.  (See Appendix, Exhibits 15 & 17).

3. The September 22, 1999, BORN session

On September 22, 1999, Mr. Adams arrived at the BORN in time to witness a private conference involving Ms. Poster, her attorney, Ms. Mary McGoldrick, and members of the BORN.  Mr. Adams was not invited to attend this meeting, nor was he informed of the substance of the discussions.  This is despite the fact that the Conference was meant to be an public meeting under the Massachusetts Open Meeting Law.

Once the meeting began, Mr. Adams discovered that it was not a Conference, but an Executive Session of the BORN.  The Executive Session informed Mr. Adams that the complaint committee of the BORN had elected not to pursue the “unprofessional conduct,” “unethical conduct,” and “patient neglect” allegations in his complaint.   Rather, the BORN was only willing and prepared to hear the more technical aspects of Mr. Adams’ complaints, specifically allegations relating to the morphine overdose of a patient at Youville in October 1996.  The morphine overdose was not a specific allegation contained in Mr. Adams’ complaint, but had been attached as evidence of the understaffing issues which were being ignored by the nursing administration. 
 However, it came to light during this session that Ms. Poster had been informed by the BORN of the nature of the meeting.  In particular, Ms. McGoldrick commented during the session that she had been told in writing that the Conference was in fact a formal proceeding with the BORN in Executive Session.  Moreover, Ms. McGoldrick noted that she had been notified that the complaint committee would not pursue the major sections of Mr. Adams’ complaint.  In contrast, Mr. Adams was never notified that the substance of his complaints were dismissed prior to the Conference.

Immediately following the session, Mr. Adams wrote you a letter requesting a copy of the hearing officer’s temporary decision issued on the conference; a copy of the minutes taken at the conference with Ms. Poster which preceded the session; and a copy of the letter sent to Ms. Poster’s attorney which stated that the allegations of unprofessional and unethical conduct were deemed resolved by the BORN.  (See Appendix, Exhibit 57).  Pursuant to the Massachusetts Freedom of Information Act (“FOIA”), this office followed up on that request on October 21, 1999, but has still not received a response from BORN.  This is despite the fact that the law requires a response within ten days of receipt of a FOIA request by a state agency.

ARGUMENT

1. The BORN’s Actions In Electing To Dismiss The Central Portions Of Mr. Adams’ Complaint Relating To Unprofessional And Unethical Conduct Constitutes A Violation Of The Principles It Is Charged With Upholding.

Mr. Adams’ complaint presented the ideal opportunity for the BORN to address and respond to numerous issues affecting the practice of nursing in Massachusetts and nationally.  Moreover, it presented an opportunity for the BORN to demonstrate that, as an agency charged with overseeing the accountability of the nursing profession, it does so fairly, equitably and in keeping with its principle mission of protecting the public.

Specifically, Mr. Adams’ complaint provides the following public policy issues.

1. Accountability of all licensed nurses regardless of their role

At the core of Mr. Adams’ complaint is the accountability of all licensed nurses regardless of their role in decisions that adversely affect patient care.  Youville staff nurses became increasingly concerned about their ability to perform under stressful and overwhelming conditions.  They also became concerned with the amount of responsibility placed on new and inexperienced nurses, especially with regard to the risk of medication errors.  They witnessed and documented increased incidents relating to inadequate care and were able to make a correlation to inadequate staffing and inexperience.  While these nurses understood and accepted their responsibility for any errors which occurred, they also voiced their opinion that those administrative nurses who held nursing licenses but refused to help rectify the problem, and who contributed to the problem by exacerbating the inadequate staffing issues, be held accountable for their actions as well.  Their feelings were premised on the belief that the public deserves the assurance that all nurses, both direct caregivers and nurse executives, should be held accountable for the patient care they deliver.

2. Protection for whistleblower

Mr. Adams’ complaint also raised the issue of whether individuals who address concerns about safe staffing and patient care should be protected from retaliation for their actions.  Recently, the California Board of Nursing issued a strong policy statement that protects nurses from employer retaliation for refusing unsafe patient assignments or excessive overtime.  The BORN sent Massachusetts nurses the opposite signal when it dismissed Mr. Adams’ complaint-- that nurses will not be protected for upholding the very thing the BORN is mandated to protect-- patient safety.

The BORN regularly issues disciplinary action against nurses for not displaying “good moral character” and for behavior “that does not reflect positively on the profession of nursing.”

Ms. Poster and Sr. Coyne retaliated against nurses for following Massachusetts law and upholding their obligations.  Such behavior reflects poorly on the practice of nursing and cannot be construed as anything other than unprofessional and unethical.

II The BORN’s Failure To Allow An Investigation Into The Substance Of Mr. Adams’ Complaint Constitutes A Violation Of Its Mandate And Of Massachusetts Law.

Massachusetts law mandates that the BORN “shall have the responsibility and power to administer, coordinate, and enforce the provisions of section thirteen and this section and sections seventy-four to eighty-one C, inclusive, of chapter one hundred and twelve, without limitation to such other powers, duties, and authorities as it may be granted by its status.”  M.G.L. ch. 13, § 14.  (emphasis added).

One of the ways in which the BORN upholds its mandate is through the investigation and action upon complaints surrounding nurse performance and conduct.  Specifically, M.G.L. ch. 112, §77, states in relevant part: “The board shall investigate all complaints of violation of sections seventy-four to eighty-one C, and report same to the proper prosecuting officers.”  (emphasis added).  Mr. Adams’ complaint of September 1996 challenged the conduct of Ms. Poster and Sr. Coyne, alleging that their nursing practices were in direct violation of Massachusetts law and consequently endangered the welfare of the public.  As a result, the BORN’s dismissal of the substance of Mr. Adams’ complaint demonstrates a failure of the BORN to uphold its own mandate as defined by Massachusetts law.

1. Ms. Poster and Sr. Coyne violated established standards of nursing practice when they refused to acknowledge and address issues of understaffing and inexperience in the nursing staff at Youville.

M.G.L. ch. 112, §80B states that nursing practice:  “[S]hall include, but not be limited to the performance of services which promote and support optimal functioning across the life span; the collaboration with other members of the health team to achieve defined goals; health counseling and teaching; the provisions of comfort measures; teaching and supervising others and participation in research which contributes to the expansion of knowledge.”  (emphasis added).

In addition, the statute provides that: 

“Each individual licensed to practice nursing in the commonwealth shall be directly accountable for safety of nursing care he delivers.  The practice of registered nurses shall include, but not be limited to: (1) the application of nursing theory to the development, implementation, evaluation and modification of plans of nursing care for individuals, families and communities; (2) coordination and management of resources for care delivery; (3) management, direction and supervision of the practice of nursing, including the delegation of selected activities to unlicenced assistive personnel.” (emphasis added).

Pursuant to M.G.L. ch. 13, § 14, the BORN has responsibility for ensuring that licensed nurses uphold these aspects of nursing practice.

 Moreover, Massachusetts regulations explicitly states that RNs must be held responsible “for both the direct and indirect care they provide.” See 244 CMR §3.01.  The regulations continue by stating that nurses “may delegate nursing activities to another registered nurse provided that the delegating nurse shall bear full and ultimate responsibility for . . .  the outcomes of that delegation.”  244 CMR §3.02.  

Thus, Massachusetts law explicitly states that nurses employed in administrative capacities are responsible for engaging in actions which promote the optimal health and well-being of patients, and for supervising and managing those nurses under their direction to achieve the same result.  As such, administrative nurses are not exempt from BORN oversight, and are bound by the same laws which govern nurses who provide direct patient care.  Despite the clear language and intention behind Massachusetts law, the BORN decided to ignore Mr. Adams’ charges which alleged that nurse administrators at Youville engaged in unprofessional conduct by allowing inadequate and inexperienced nursing staff to carry out the practice of nursing.

 While the BORN may not be in a position to directly address understaffing issues at hospitals, it is responsible for addressing the conduct of licensed nurses who contribute to errors by failing to respond to known problems.  Ms. Poster and Sr. Coyne refused to hear the concerns of their nursing staff who stated that inexperience and understaffing were leading to medication errors and patient care issues.  Instead, Ms. Poster and Sr. Coyne devised a “staffing grid” which exacerbated the problem by adding additional patients per nurse during the night shift.  The refusal of Ms. Poster and Sr. Coyne to hear what their staff nurses were saying allowed unsafe conditions to persist which ultimately contributed to patient injuries.  Thus, the complaint mandates review by the BORN. 

2. Ms. Poster and Sr. Coyne engaged in unethical and unprofessional conduct when they terminated and reprimanded nurses who were advocating for better patient care.

As a registered nurse, Mr. Adams is ethically, morally and legally bound to serve as an advocate for the safety of patients in the health care system.  Specifically, as a licensed nurse Mr. Adams is bound by Massachusetts law to engage in the practice of nursing as it is defined by M.G.L. ch. 112, §80B, which begins: “The practice of nursing shall mean the performance for compensation of those services which assist individuals or groups to maintain or attain optimal heath.”  Mr. Adams’ complaint alleged that Ms. Poster and Sister Coyne terminated him in retaliation for upholding the basic tenets of Massachusetts law -- advocating for patient care which permits individuals to “attain optimal health.”

Mr. Adams’ allegation was found to have merit by the NLRB, who also found that Ms. Poster and Sr. Coyne illegally disciplined Ms. Scannell and Ms. Waters in retaliation for their complaints regarding patient safety.  Ms. Leeman has signed an affidavit (See Appendix, Exhibit 10) which states that she was groundlessly accused of poor nursing practices and disciplined immediately after speaking publicly about her concerns.  Ms. Hunter’s affidavit states that Ms. Poster told her that she was going to fire Mr. Adams and Ms. Leeman for their actions in this regard.  (See Appendix, Exhibit 2).  Ms. Poster’s actions are not only illegal, but serve to encourage other nurses to refrain from upholding one of the basic tenets of nursing– advocating for the health and safety of patients.

Despite the evidence presented to BORN surrounding Ms. Poster and Sr. Coyne’s improper conduct, the BORN chose to dismiss the allegations of unprofessional and unethical conduct against both individuals. One of the justifications given by the BORN was that these issues were resolved in the NLRB case and by DPH.  This argument is patently without merit.  The BORN deals with the licensing of nurses in the state of Massachusetts.  It regularly reviews nurses’ licenses when other tribunals, including criminal courts, have found nurses liable for illegal activity.  By failing to investigate Ms. Poster’s and Sr. Coyne’s licenses to practice nursing, the BORN is tacitly condoning their illegal behavior.  The new evidence presented in this submission, combined with the NLRB decision and the March 1997 DPH Report mandates a substantive review by the BORN into Ms. Poster’s and Sr. Coyne’s conduct by the BORN.  
 

 III The BORN’s Actions In Failing To Follow Correct Procedure With Respect To Mr. Adams’ Complaints Constitutes A Violation Of Massachusetts Law.

Massachusetts law is clear as to the manner in which complaints are to be handled by the BORN.  Specifically, upon receipt of a complaint against an individual nurse licensed by the BORN, the BORN is required by 244 CMR §7.03 to acknowledge receipt of the complaint to the complainant and to notify the complainant of any action on the complaint, including dismissal of the complaint.  Moreover, 244 CMR §7.04 requires the BORN to assign each complaint a docket number and to file the complaint with the date of receipt.  Further, all correspondence, evidence, and actions related to the complaint must bear the docket number and be maintained in a file at the BORN.  Finally, 244 CMR § 7.05 requires the BORN to establish a Complaint Committee “to assist the Board in processing and disposing of complaints. . . . The Complaint Committee shall review complaints against licensees of the Board, direct investigations of such complaints, conduct preliminary conferences, and report in writing to the full Board every month on its activities.” (emphasis added).

1. The BORN failed to follow legally required procedures with respect to Mr. Adams’ first complaint

In October 1996, Mr. Adams filed a complaint against Ms. Poster and Sr. Coyne at the BORN.  One month later, he received a letter from Ms. Tripp acknowledging receipt of his complaint, but stating that the issues raised “do not appear to be ones over which the Board of Registration in Nursing has jurisdiction.”  The date of receipt of was not noted in Ms. Tripp’s correspondence, nor was a docket number assigned to Mr. Adams’ complaint.  Moreover, Mr. Adams was not informed of any official dismissal of his complaint.

Two years later, when he called the BORN, Mr. Adams was informed by Ms. Tripp that no official record existed of his October 1996 complaint to the BORN.  Again, the BORN’s actions with respect to Mr. Adams first complaint was in direct contravention to its own rules and regulations.

In contrast, Ms. Poster’s unsubstantiated complaint against Mr. Adams in August 1997, was delivered to Mr. Adams within eight days of receipt, was assigned a docket number, and was investigated thoroughly by the BORN.

2. The BORN failed to follow correct procedure with respect to Mr. Adams’ second complaint

In September 1998, Mr. Adams again filed a complaint with the BORN alleging unprofessional and unethical conduct and patient neglect against Ms. Poster and Sr. Coyne. Mr. Adams received an acknowledgment of his complaint, including a docket number, six months after it was filed.  Further procedural violations committed by the BORN in relation to this complaint are as follows.

First, Mr. Adams was denied the Investigative Conference detailed in the notice he received in August 1999.  When he arrived at the Conference, Mr. Adams discovered that his Investigative Conference was in fact an Executive Session of the BORN.  Ms. McGoldrick indicated that she was informed that the meeting that day was to be in front of the Executive Session of the BORN.  Mr. Adams was not so informed, but, to the contrary, was informed that a process would occur that, upon arrival at the BORN, was denied him.

Second, Mr. Adams was informed that his complaint relating to unprofessional and unethical conduct and patient neglect had previously been dismissed without his being notified.  However, Ms. Poster’s attorney stated that she had been notified of the dismissal of the claims by the BORN.  The Associated Press later reported that “Board members said the allegations had previously been reviewed and either found to be lacking in sufficient evidence or had been resolved.”  (See Appendix, Exhibit 58).  However, the BORN gave no indication during the  session that the allegations contained in Mr. Adams’ complaint had previously been reviewed and lacking in sufficient evidence.  Moreover, the BORN’s claim that the issues had been previously resolved, presumably by the DPH and NLRB, lacks basis in fact. 

Third, Mr. Adams’ Notice of Investigational Conference stated that he was to bring with him “any materials/witnesses that may assist the Board in this matter.”  As a result, Mr. Adams brought Ms. Hunter and Ms. Leeman to testify regarding their experiences with Ms. Poster and Sr. Coyne.  However, Ms. Barbara Hamm, the BORN member who chaired the meeting, refused to allow either witness to speak. 

Fourth, the BORN’s written statement prior to the hearing that Mr. Adams did not require an attorney at the Conference is an egregious violation of Mr. Adams’ rights.  At the hearing, the BORN stated that only Mr. Adams and his attorney, if one had been present, could speak, and all other witnesses could not.  Had Mr. Adams been truthfully informed regarding the nature of the session, he would have requested the presence of his attorney.

Fifth, Mr. Adams has no knowledge of whether the Complaint Committee has been reporting in writing on a monthly basis to the full Board detailing its activities involving his complaint.  

Sixth, the BORN has consistently failed to respond to Mr. Adams’ communications regarding clarification of nursing practices in violation of M.G.L. ch. 13, §14(h), which states: “The board shall: provide consultation, conduct conferences, forms, studies and research on nursing practice, nursing education and related matters.”  Mr. Adams has been requesting consultation on numerous issues since August 1996.

 Finally, the BORN has been inconsistent regarding the procedural posture of Mr. Adams’ second complaint.  While the BORN differentiated between Mr. Adams’ complaints regarding Ms. Poster and Sr. Coyne, assigning both different docket numbers, it has never made clear whether the allegations of unethical and unprofessional conduct and patient neglect were dismissed against both Ms. Poster and Sr. Coyne, or merely Ms. Poster. 

The discrepancy in the handling of Mr. Adams’ and Ms. Poster’s complaints leads to the inescapable conclusion that the BORN is capriciously selective in the complaints it wishes to hear, and that it categorically favors complaints made by superiors against staff nurses and disfavors complaints by staff nurses against superiors.  Such a pattern is an abuse of the BORN’s discretion and would be enjoined by a court of competent jurisdiction, if proved.

Moreover, the BORN repeatedly states in its publications regarding disciplinary procedures: “Through the fair and consistent enforcement of statutes and regulations, the Board works to protect patients by ensuring that persons issued nursing licenses are qualified to provide safe and effective nursing care.”  The BORN failed to apply a “fair and consistent enforcement of statutes and regulations” in the case of Mr. Adams, and in so doing, proved to staff nurses in Massachusetts that the same protections afforded nurse executives do not apply to them.

IV. Writ of Mandamus – The Erroneous Actions of the BORN in Refusing to give Meaningful Consideration to  Mr. Adams’ Complaint would be a Basis for Relief in the Massachusetts Courts if the BORN Fails to Rectify its Errors by Granting the Relief Requested.

 The BORN has the opportunity to rectify its prior errors by granting the relief requested in this supporting memorandum.  That action would not involve any finding of misconduct, but would simply entail a decision to consider the substance of Mr. Adams’ complaint.  A full investigation of his allegations, including a hearing on the merits is all that Mr. Adams is entitled to obtain under the circumstances of this case.  The proper outcome of such and investigation and hearing is not predetermined.  It prove that Mr. Adams may not satisfy the BORN after a full investigation that he has proved his allegations.  Alternatively, after such an investigation, the respondent may successfully rebut his allegations.  But the BORN’s refusal to even consider the substance of the allegations amounts to a dereliction of its duties.  Moreover, any claim by the BORN that the complaint is outside its jurisdiction is legally erroneous.  Finally, any suggestion by the BORN that the complaint is trivial or otherwise unworthy of a full investigation and a hearing on the merits would constitute a clear abuse of the BORN’s discretion.  Any one or more of these grounds for the BORN’s inaction would justify action in the nature of mandamus in the Superior Court of the Massachusetts Trial Court, pursuant to G. L. c. 249, § 5, to reverse the BORN’s inaction.  See, e.g., L.G.G. v. Department of Social Services, 429 Mass. 1008 (1999) (writ appropriate where there is no other available and effective remedy); Channel Fish Co. v. Boston Fish Market Corp., 359 Mass. 185, 187 (1971) (writ to be issued where board is under a legal duty to perform some particular act or acts the performance of which the court can order in definite terms and enforce if necessary); Woods v. State Bd. of Parole, 351 Mass. 556 (by writ of mandamus, the board may be required merely to consider a prisoner’s petition for parole); Sullivan v. Fall River Hous. Auth., 348 Mass. 738, 739 (1965) (where agency refuses to enforce statute, plaintiff’s remedy is petition for writ of mandamus).
 

CONCLUSION

For all the reasons stated above, the BORN should: (1) Reverse the executive committee’s decision to dismiss his complaints regarding patient neglect, unprofessional conduct and unethical conduct; (2) Allow a full investigation into the allegations of his complaint; and (3) After a full hearing, make a determination regarding the validity of the claims.   
 

Respectfully submitted,

S. Stephen Rosenfeld
BBO No. 428940
Mala M. Rafik
BBO No. 638075 
Richard Ames, Of Counsel
BBO No. 017440
Rosenfeld & Associates
44 School Street, Suite 715
Boston, MA 02108
617.723.7470