Brooklyn Medical Malpractice News

NYSNA  Did Not Have Actual Knowledge Of The Change In Medical Malpractice Insurance Coverage

Respondent’s brief argues that “even if NYSNA did not have actual knowledge of the . . . change in medical malpractice insurance coverage more than six months before filing its charge . . . NYSNA filed its charge at the behest of and as an agent of the . . . CIR . . . an entity that had knowledge of the . . . change in medical malpractice insurance coverage more than six months prior . . . NYSNA acted as CIR’s agent in filing its charge, NYSNA had constructive knowledge of the . . . change in medical malpractice insurance coverage.”  This contention is not supported by the record.  Parrish’s note to Ferris, quoted above, states that CIR and NYSNA are willing to help each other where they can and concludes that an agent of CIR named “Linda” might contact Ferris to strategize about a joint effort.  The record contains no evidence at all that “Linda” ever contacted Ferris and the record contains no evidence that he strategized with anyone from CIR with an object of helping CIR.  Ferris testified freely about his conversations with Andrews and DeRosa.  In its extensive cross-examination of Ferris, Respondent did not elicit any testimony that he was taking any actions with an aim to helping CIR in its bargaining with Respondent.  Respondent did not elicit any testimony from Ferris that would show that CIR asked or authorized Ferris to be its agent in the matter of malpractice insurance.  Ferris was the NYSNA agent who had charge of the unit at Brooklyn Hospital and he is the person who first contacted the NYSNA attorneys to inform them that he was involved in a controversy regarding malpractice insurance.  Ferris explained his reasons for pursuing the matter on the record.  There is no testimony that Ferris held himself out as the agent of CIR nor that management of the hospital believed that he had apparent authority to act for CIR.  The record shows that Ferris sent his first information request to the Respondent in his own words.  After that he obtained a copy of the CIR attorney’s form of information request and he used some of that language in his second information request.  The mere use of legal verbiage from a prior document does not create an agency relationship with the drafter of the document.    Furthermore, contrary to the assertion of counsel for Respondent, NYSNA does have an interest in medical malpractice and this is very much an issue that concerns NYSNA.  Parrish’s e-mail to Ferris points out that the change in medical malpractice insurance “could have a tremendous impact on our nurses, so we should do an info request as well.”  This shows that the motivation for the NYSNA request was concern for its own unit members.  The record shows that nurses may be held to have committed medical malpractice and that NYSNA routinely recommends that its members purchase their own insurance for incidents arising outside the hospital.  The record shows that NYSNA was concerned that Respondent, whose financial difficulties were well known, had decided to undertake a self-funded program.  NYSNA was understandably concerned that this insurance might not protect its members.  The record shows that the nurses themselves were concerned about whether they were covered by malpractice insurance and that they asked both Goonan and Ferris about this subject.  It would be a pernicious doctrine that held that a union which dealt with management about an issue of concern to its members became an agent of every other union at the same employer which might have an interest in the same subject.