10-Year Retaliation Litigation Ends with Trial Victory—and Counsel Fees—for Hospital

July 1, 2014

After a decade-long battle, including two trips to the New York State Supreme Court, Appellate Division, Second Department, Epstein Becker Green assisted a client, North Shore – Long Island Jewish Health System (“Hospital”), in obtaining a dismissal in July 2014 of a health care worker’s retaliation suit.

Plaintiff, a highly rated registered nurse manager, alleged that she was fired in 2004 for alerting Hospital management to systemic failures in the Hospital’s surgical instrumentation sterilization department, which she claimed put patients at risk of serious injury or death. She alleged violations of the New York whistleblower law, Lab. Law §740. The Hospital countered that, even though there were documented but isolated instances of unsterile instruments, plaintiff was let go because of her documented inability to “interact” effectually with doctors, Hospital executives, co-workers, and New York State Nurses Association (NYSNA) union representatives.

In a two-week bench trial in Nassau Supreme Court, Epstein Becker Green, on behalf of the Hospital, proved that, notwithstanding several nurses’ testimony regarding unsterile instruments, the Hospital’s procedures complied with New York Department of Health regulations governing surgical services and that plaintiff was fired for reasons unrelated to her reports. Plaintiff tried to bolster her case with the testimony of the former CEO of a Massachusetts hospital group, an MD whom plaintiff claimed was an expert as to the appropriate standards for hospital operations, including addressing issues relating to surgical instruments. Rather than calling its own expert, the Hospital discredited plaintiff’s expert.

In a rarity in employment litigation, the Court awarded the Hospital its attorneys’ fees incurred in defending the case. The Hospital’s fee application was filed with the Court in August 2014.

Epstein Becker Green attorneys Kenneth J. Kelly and Jennifer M. Horowitz represented the Hospital at trial, working with Steven M. Swirsky, who represented the Hospital through discovery, successful motions for summary judgment and to dismiss for failure to prosecute, and the two appeals to the Second Department.