NY Hospital Escapes Nurses Union's COVID-19 Safety Suit

By Adam Lidgett
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Law360 (May 4, 2020, 8:31 PM EDT) -- A New York federal judge has let a Bronx hospital out of a suit claiming it failed to adequately protect nurses as they treated an influx of COVID-19 patients, but implored the medical center to continue working with the employees to address their concerns.

In a seven-page decision Friday, U.S. District Judge Jesse M. Furman dismissed the New York State Nurses Association's suit accusing Montefiore Medical Center of not doing enough to prevent health care workers from catching the novel coronavirus.

The nurses sought an emergency injunction requiring the hospital to take certain protective measures pending arbitration over the adequacy of safeguards. But Judge Furman concluded that he lacked jurisdiction to grant such an injunction.

"The tragic fact that, between now and the conclusion of the arbitration proceedings, nurses at Montefiore may well (indeed, are likely to) contract COVID-19 does not alter that conclusion," the judge wrote.

The court also asked that both parties try to hash out their disputes amicably.

"This court may lack authority to address NYSNA's concerns, but to the extent these concerns are valid, it is critical that they be addressed as swiftly as possible," the judge said. "Lives may hang in the balance, and the NYSNA nurses deserve as much."

The union, which represents 3,000 registered nurses that Montefiore employs, filed the suit against the hospital about two weeks ago, the same day it leveled similar claims against the New York Department of Health and the Westchester Medical Center. The cases against the New York Department of Health and the Westchester Medical Center are still active.

The COVID-19 pandemic has turned Montefiore's main hospital in the Bronx into "a war zone," the union had said. In its complaint, the union detailed the hospital's refusal to respond to its concerns regarding the number of adequate protective masks and fluid-resistant gowns that were available to its members.

Just a day after the suit was filed, the hospital said in a letter motion to the court that being legally ordered to provide equipment and testing whenever nurses say they are needed would come at the cost of jeopardizing the patients they are treating.

NYSNA said in a Saturday statement that even though the suit was tossed, Montefiore has done various things to help nurses, including adequately fitting them with N95 respirator masks and testing more nurses for the virus.

"We hope the hospital takes to heart the judge's encouraging them to talk to the nurses about providing adequate [personal protective equipment] and a safe workplace," Susan Davis, general counsel for NYSNA and a partner at Cohen Weiss & Simon LLP, told Law360 on Monday.

Montefiore said in a statement to Law360 on Monday that the court's decision lets the hospital get back to focusing on patient care.

"This ruling recognizes the unions' disgraceful and counterproductive behavior for what it is — a distraction from our efforts to save lives throughout the crisis," Montefiore said.

The nurses are represented by Susan Davis, Joseph J. Vitale and Joshua J. Ellison of Cohen Weiss & Simon LLP.

Montefiore is represented by Neil Howard Abramson of Proskauer Rose LLP.

The case is the New York State Nurses Association v. Montefiore Medical Center, case number 1:20-cv-03122, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Andrew Karpan. Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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