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HomeMy WebLinkAboutZaki 95-01-17 ~- . I Ir.~~ I' I I I In the Matter of an Arbitration . I Between I ottawa General Hospital I (Employer) I and I ontario Public service Employees Union (Union) I And in the Matter of Mr. Zaki I I Arbitrator: M.B. Keller I Union Counsel: Nelson Roland Employer Counsel: Lynn Harnden ' I I \I Hearing in ottawa December 10, 16, 22, 23, 1993 and January 5, iI . i~- December 5, 8, 22, 1994. ~c - j" fì1 I>, ii" :: -. ~ I 2 I AWARD I The grievor was discharged' on April 14. 1.992. The discharge letter, which lays out the grounds for the action reads as follows: I I I I I I I I I I I I I I I î - --- I' .'. i.,," 1(' ", - . , I' HO~lTAL G~NE;RAL O'O1íAWA OnAWA GE~ERAL HOSPITAL - I April 14, 1992 I Kr. Kohd zùci II Registerad Respiratory Therapilt cardiopu¡~onary s~rvic~ Hr. ZAki: II This is furthar to our investigation of an event involvinq an ~usual~ high p~ laval on patiarl H ~hi~ ~U .uhaa~Qrlli ~a " aubject of ~n inc dent report. ' on Karch 31, 1992 &t 20:15 hour. you charted that you gave II patient H in room E50B-l a ventolin treatment. At approximately 20:30 hours on the same day you charted that you performed a. preop.rativ~ a.rt~rial blood gas puncturQ on patient H ~nd aent the II sample to th~ blood qa~ lLborAtory tor analysis. As ... rasult of the vantolin treat1nent beinq contiguous to the ABa puncture:, the pati~nt'lJ blood reCJiBt~red an unusually high II l~vel of PO)O The level documentGd by the blood q~Q laD was ~'O.6. The ragiatered rgspiratory therapist in the blood gas laboratory., ran the tast twice, loa aha could not corrQll1.te the hiqh level of POl II with thQ. sample you cle.imed was taken on room I\.ir. Since thia sample was obtained to establi&h a preoperative II baselin'l, &nd given the patiant'a abnormally high PO1 le:vel, the. r~spiratory thArð.pist contActQd you by phone, atated Ipecitioally thQ POl level, And inquired as to whether the patient hadr~ceivQ.~ 81 oxygen or \Jas rocei vinq oxygen when the sUlpl. vas obtained. ., You ~n~~ered in thQ n~at~v~ and instated that. the samplQ was tak!n on ~roQm air. Youtailad to 1ndIca'te ~ñat the patlont had rQ~Q1vea a ventolin tr~at:mgnt in conjunction with, or prior to the sa:mplð II bQing obtained. Further, in the courS&l at: our investigation, 'you ,ttrted that . the ventolin treatment ~as givGn with ~ir ~nd not OxY~a~. HowQy'er, ~e pat1&n~'B room.va. not equlpp~d with .an.~i~ tlo~~ter ~nd the tre~tment kit wa~ ~ttAch~d to an oxygen flowmeter. . \ . .. 2 . 1 ~\ $Inylh. OtU'4,'8. OnLBrlo \:IH liLt. (61:\1737-7777 - ,i' i , . . . ". ,. f: ~ ~ . .:_. ~ " , ' 1:. .:'. "'!:.o..; ,. . , , I -:;2- I Your ~xpl"na.tion for tha a..bnormally hiqh PO~ lQVQl W:1I; that thQ ;:er¡uli:.. \lA4 An. ~r:rot: Þn. tb..8 ~art of the registere.d re..piratory therapist in the blood gas lab. You failed to recognize that the , high PO1 levels vera & direct result of tha vantol in trQatmant you I gave to the patient. . . Prior to tha pationt/Q aurgary, anothor r~Bpiratory therapist I recognized th~ obvious link between the ventolin treablent and the PO1 lavel reportQð., and en.ur~d thia tact was documented ao that tha anesthetist was made avare of the .ituAtion. I I mu9t al~o Addro~g my concern At your acknowl.dq~ent that you have not b6?-en recQ.rtAfiQ.d, ~ _..'pe.r.f.or:m a.rteriaJ, Þ..l~od gas I punctures ลก"'Ince l.m even though you adD.it that you are Aware. thAt recertification is r&qUired tor this ðel.g~t.d aedical act. The direction that you recertify yourself vas brought to yo~a.ttention I in your performance appraisal in Septamber 1991. Givan the.ðe events which clearly indicate your lack 01: competence, and in view of your ..ell establieh~d record. ot I incidents ot unacceptable practicQ, 'We consider it would ba .". inappropriate a.nd irresponsible to allow you to continue as a zne1JÙ)erof the Hoapital' a health care team. We þ,ust theretore I proceed with the i:øtadiata termination of your Q.mployma.nt' for qroG~ InoompetQncQ in thQ PQrformancQ of your assigned dutie5. I We 'Would request that you proce.d immediately to the Human Resources Deparbl.ent to complete the documentation requir~d tor the: clo.inq of your parQonnel tlla. I - Sincerely, I ¡ú, '-< c; e "-" ~"L.-.:;;' I Denise Blanchette Assistant Kanaqer Cardiopul~onary Sorviccs II co: z. LipcsBY v. Si:mon Human Rosourcas " O.P.S.B.U., local 422 . I I ... I:. . I 5 I At the time of his discharge the grievor was a respiratory therapist with about 19 years' seniority. He had amassed quite a I lengthy disciplinary record for various matters, all involving his I professional competence. One of the warnings and both suspensions were arbitrated and the penalties upheld. I Prior to dealing with the facts a word or two must be said about I certain procedural matters that arose during the hearing. The I first was when the employer sought to add additional grounds for the discharge. The additional grounds were not related to the I initial grounds and only aros~ at the arbitration hearing. On that basis, the motion was denied. I I Next the employer sought to call the grievor as their first witness. The issue was fully argued and, in an interim award, I dated December 2, 1994 the request of the employer was allowed. I Finally, following the cross-examination of the grievor by his I counsel at the end of the employer's evidence the employer sought to have the grievor declared hostile for purposes of re-examination I and sought to expand the normal bounds of re-examination alleging that the grievor had not been truthful in his cross-examination and I wished to further canvass those areas. In an interim award dated I December 2, 1994, the employer was able to proceed subject to certain specific qualifications: I ~ 1--.: ,. .'.',";, M.B. KELLER & ASSOCIATES ARBITRATION SERVICES - SERVICES D'ARBITRAGE I 48 CHARING ROAD, NEPEAN, ONTARIO K2G 4E8 TEL.: (613) 215-8657 FAX: (613) 225-86~7 I I December 2, 1994 I Mr. Lynn Harnden Mr. Nelson Roland I Dear sirs: I RE: Ottawa General Hospital/OPSEU/Zaki I r have read your respective submissions with interest and it is not without some misgivings that I make this ruling. It has always been my view that the principle responsibility of an arbitrator is to I make all informed decision. This implies that, to the extent it is possible, before a decision is made I wish to be in possession of all relevant facts. I From the beginning I have not been happy with the way the case has proceeded. This is ill no way a criticism of the parties or counsel; they have been most professional and helpful Rather, it is more a concern I have had about how to balance procedural fairness with the search for the trut\¡. I In this case that balance is critical given the potential consequences for the grievor on one haud, and for the patients treated on the other. What then is right and fair? If I do not allow the employer to proceed I risk making a decision without some facts that are material If I allow the I employer to proceed do r risk prejudicing the grievor? That really is the issue. r am told by the employer that the grievor's evidence to this point has not been entirely truthful I and it can prove its allegation by again examining the grievor. The allegation of the employer is a serious one and can not, in the final analysis, be ignored. The consequences of allowing the employer to proceed it seems to me are as follows. If the grievor is telling the truth, as he has I swam to do, then no harm has been done to his case; on the contrary it \vill have been enhanced. It: on the other hand, the employer is coITect, then I vvill be in a position to make as fully informed a decision as I can, and the community as a whole benefits. I The employer is permitted to prqceed on the following basis: Mr. Roland is to be infonned by Mr. I Harnden of the precise nature of the issues to be raised with the grievor. He is to be given all the documents on which Mr. Harnden intend to rely. Mr. Harnden is to be restricted in his examination of the grievor and may proceed only in those areas where he takes the position that I the evidence has been contradictory. Mr. Roland ~ of cours~, have the full right to re-examine the grievor at the end of Mr. Harnden's examination as well as pr~sent such other evidence that he feels is appropriate. I -' ", '-", I",~ I I note, finally, ag~ that the issue is one of prejudice and I can only repeat what I have written above: if the grievor is being truthful there is no prejudice to him. I ~'arbitrator I . I I I I I I I I I I I I I I /Þii- . , 1--:. : "'"'.," I: 8 It must be pointed out that whereas it would appear that although I the procedure in this case did nqt follow't:he most trà'd-itional I course at no time was the grievor denied any normal rights. His counsel was always permitted the necessary time to deal with the I consequences of the procedure followed, including the right (of which he availed) to further cross-examine the grievor and address I whatever additional evidence he thought might be appropriate and I useful ~ I On March 31, 1992 the grievor charted that he gave the grievor a pulmonary function test, a ventolin treatment and a post spirometry I test commencing about 20:15 hours. He testified he gave the treatment using room air and not oxygen. At 20.30 hours he charted I he took a preoperative arterial blood gas (ABG) sample from the I same patient. On the various patient charts treated by the grievor that same evening it is indicated that he gave ventolin treatments I to three patients at 20:00 hours one at 19:30, one at 19:40 and one at 19:43. The grievor testified at different times that the times I in the chart were the-beginning times of the treatment, the ending I times, were exact or were approximates. All patients were on the same floor but on different parts of the floor, not all close to I one another. It takes 10 - 15 minutes to give a ventolin treatment. I I The grievor claims that a colleague was in the room with him when he took the ABG but that person did not testify.- I r ~'- I I -- I:~~f:~:' .' " ,':'," I 9 I After the ABG was taken it was sent down to the lab for analysis. The analysis showed a PaO2 level of 140.6 where normal would have I been between 75 and 80. The technician contacted, the grievor to see if he might have erred in recording the ventolin treatment I being given with room air. The grievor responded no. The I technician also testified that the unusual level would not likely have resulted from air bubbles as she would be able to see all but II the smallest. II That same evening Luce Gougeon, a Registered Respiratory II Technologist who had been informed of the unusual reading was in the patients room investigating and saw a ventolin masked attached 18 to an °2 flowmeter. II The grievor was questioned by the employer about the unusual II reading. He gave a number of reasons as to how the °2 level could - be higher than normal (pickwickian, air bubbles, etc.) but never - indicated that the ventolin treatment was given wit~ anything but room air. II Dr. Philip Hamilton a Respiratory Physiologist testified as an II expert. He had been asked five questions prior to the hearing. . His evidence related to the questions and his answers. Question,l was: Was the puncture performed while the patient was breathing . room air. He responded: . I .".."',.. -""~1,';; -,-, H'" ~. . 1'.-. ~ ~,' - \ , \ I I 10 liThe -answer to this question cannot be determined I absolutely. It is possible that the patient was breathing room air at the precise moment at which the arterial blood sample was withdrawn from the patient. However, the patient must have been breathing an enriched I oxygen mixture immediately prior to the withdrawal of the arterial sample (i. e. within 60 - 70 seconds). II I Question 2 was whether it was possible to have a PaO2 of 140 while I breathing room air. He responded: I "It is theoretically possible...but only if the patient is hyperventilating to an extreme degree._" I I Question 3 was whether the blood gas result was compatible with prolonged (60 - 70 seconds) exposure to room air. He responded no. I In response to question four he indicated that the patient had to I have been breathing an enriched air mixture within roughly one I minute prior to the ABG. I Finally, in response to the last question he concluded the result could not be attributed to the presence of air bubbles. I I As a last.point, the grievor alleges that he met and spoke with at resident to discuss whether to give the ventolin treatment on 02 or I room air, the flow rate, the doctor's request of the grievor to give the patient a pulmonary function test and whether the patient I was pickwickian. The grievor was asked why he hadn't yet done an .... ABG and then was told to do it. According to the grievor the I '" ,~ ,-:.:. ' . "";' /:' "'-" , I 11 I conversation took place ~round 20:30 h and lasted 2 - 3 minutes. The doctor was not identified and did not testify. I " I The blood gas analysis sheet indicates 20:30 h as being the time the ABG was taken. I The employer's argument can be put rather succinctly. Simply said, I the evidence demonstrates that the griever gave the ventolin I treatment on 02 and not on room air as he claims, that it caused ~ the abnormal reading, and that he lied to the employer and this I Board about what had occurred. ) The proof specifically relied on by the employer was the grievor's evidence regarding all the events I that took place between ~9:40 hand 20:30 h, the evidence of Dr. I Hamilton, the fact that the ventolin mask was connected to an 02 flowmeter in the patients room, that there could be no other I explanation for the high Pa02 reading, and the statements made by the grievor to the employer and before this Board. I I On behalf of the grievor it was submitted that Dr. Hamilton's evidence did not support the employer's contention. Specifically, ~ I it was argued that his evidence did not support a lapse of time between the giving of the ventolin treatment and the taking of the I ABG. It was submitted in that respect that after the ventolin I treatment a post-spirometry test was given. It was also argued that the nature of that test is such that it would accelerate the I purging of °2 and it would return to normal much more quickly than 1 " ! - 'c,-."ë: ,;;-.., I-:.~: - I 12 Dr. Hamilton allowed for. I I In dealing with the charting times, it was submitted that for the employer to be successful they would have to be very accurate but I the evidence of the grievor is that they are generalized times.. I After carefully reviewing all the facts of this case it is evident I that the determination, to a significant extent, turns on the issue of credibility. The employer's evidence seeks to establish that I the ventolin treatment was given with Oz' It is the only plausible explanation, they say, for the abnormal ABG result. The grievor I denies it and contends that the treatment was given on room air. I He gives various reasons to attempt to explain the abnormal result. I On the basis of all the evidence I have reached the conclusion that the employer has met its onus in this case. I am satisfied that I the ventolin treatment was given on oz' I am further satisfied I that the nature of the offence coupled with the grievor's past, lengthy,' disciplinary record justifies. discharge. I This decision has been reached for various reasons. On the one--. I hand, the employer's evidence establishes a very strong circumstantial case. There was the evidence of Dr. Hamilton which I deals both with the employer's assertions that °2 had to be used I and also defeats the explanation that the abnormal reading was caused by the presence of air bubbles. There is also the evidence I "1 I oJ - . -- - - C"-' - -: "-.' :,""'{.'- I:i~:' I 13 I of the lab technician which satisfies me that it was, at a minimum, highly unlikely that there were air bubbles present and that there I were no irregularities in the manner in which she analysed the blood. There is also the evidence of the grievor that he followed I normal practise in ensuring there were no air bubbles in the ABG. I The evidence of the porter satisfies me that normal procedure was followed in transporting the ABG to the laboratory. I There is, further, the evidence of Luce Gougeon that a ventolin . mask was attached to the °2 flowmeter. . The grievor's evidence, on the other hand, was less than . compelling. He asserted at the last day of hearing the presence of another RT in the room when he was with the patient but-had never . indicated that before. As an alibi it is questionable! If there . was an RT present and the RT could have exonerated the grievor why wait until the last day of hearing, over two years after the . discharge, to raise it. . The alleged conversation with the resident does not make sense either as to the alleged nature of the conversation or its timing.~ The explanation the grievor gave regarding the times of treatment on the charting was, to put it charitably, confusing. At various times he said the charted times of treatment were start times, end times, precise times or generalized times. This leaves me in the II ;;¡ .. I~': 14 I' position, when analyzing the evidence in this area, of concluding I that the employer's version of events is significantly more plausible. . II In summary, I am satisfied that the evidence establishes the II employer's allegations and I further conclude that the penalty of I discharge was justified. I In the light of the above conclusion there is no need to deal with the issue of recertification. I I One final word. I am indebted to both counsel for their thorough and able presentation, submissions, and canvassing of all relevant I issues in this case. I Nepean, this fì day of ~~ \~ I I M.B. Keller, Sole Arbitrator I ,- I I I I '.