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NYSNA First Learned Of The Change In Medical Malpractice Insurance Affecting Its Unit Members Brooklyn Hospital
The New York State Nurses Association, (NYSNA), has represented the unit at Brooklyn Hospital for 15 years. The unit consists of about 600 employees of which the majority are registered nurses and the rest are nurse practitioners and nurse anesthetists.
Respondent’s view of this case is that it actually results from collective bargaining between the Committee of Interns and Residents (CIR) and Brooklyn Hospital. At the hearing, I ruled that I would permit litigation of the question when NYSNA first learned of the change in medical malpractice insurance affecting its unit members, but I would not permit litigation of the facts relating to Respondent’s negotiations with CIR on behalf of residents employed at Brooklyn Hospital. Respondent made an offer of proof on the record which dealt with negotiations between Respondent and CIR beginning in 2001, the facts surrounding the filing of two charges by CIR and the withdrawal of the CIR cases. The offer of proof also included Respondent’s belief that NYSNA was not interested in the issue of malpractice insurance and had no legitimate purpose in filing its charge on behalf of the nurses. As will be seen below, NYSNA’s witness testified with respect to the issue of NYSNA’s interest in malpractice insurance for nurses generally and the motivation for requesting information about Respondent’s maintenance of such insurance for its unit members. Counsel for Respondent cross-examined NYSNA’s witness concerning his discussions with agents of CIR about the CIR charges, his interest in malpractice insurance for nurses, his motivation in asking Respondent for information about such insurance and many other related topics.
According to Respondent, an impasse in the bargaining with CIR resulted when CIR adhered to its position that the residents should be covered by the CIR health insurance program and the Hospital adhered to its position that residents should remain in the Hospital health program. Counsel for Respondent stated that CIR filed various charges against Respondent to further its tactical position relating to medical coverage for residents. On February 25, 2003, CIR filed unfair labor practice charges in case 29-CA-25448 relating to a request for information about medical malpractice insurance coverage maintained by the Hospital for the residents and relating to unilateral changes in medical and disability benefits for CIR unit members. That case was apparently settled. On July 8, 2003 CIR filed a charge in Case 29-CA-25707-1 concerning a unilateral change in malpractice insurance policies for CIR unit members. Counsel for Respondent explained that for a number of years Brooklyn Hospital had participated in a consortium of hospitals called CCC which was established to purchase commercial malpractice insurance. According to Counsel for Respondent, the Hospital believed that fraud had been committed in running the CCC program and served notice on CCC that it would bring suit. As a result, CCC canceled the Hospital’s malpractice insurance. In May 2003 the Hospital set up a self-funded malpractice insurance program. I note that Respondent presented a witness on the dealings between CCC and Brooklyn Hospital. The testimony of this witness is set forth below.
According to Counsel for Respondent, CIR eventually withdrew its charges for institutional reasons. Respondent urges that The New York State Nurses Association is acting as the agent for CIR and that the NYSNA charge in the instant case is time barred because the CIR knowledge of the malpractice insurance change should be imputed to NYSNA. Counsel for Respondent argued on the record that the evidence would show that the Nurses Association has “no interest in medical malpractice, this is not their issue.”
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