HomeMy WebLinkAboutBILLSMAN-1991-13-06-RIVERSIDE HOSPITAL OF OTTAWA
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IN THE MArTER Of AN ARBITRArION
BETilEEN:
THE RIVERSIDE HOS?ITAL Of OTTAwA
AND:
the Hospital
THE ASSOCIATION Of ALLIED HEALTH PROfESSIONALS
the Association
GRIEVANCE Of S. BH..GS'1Al'"
Boa~d of ~bit~ation:
Ms. Jane E. Em~ich
,'Ie. Robaet Radfoed
.'1r. ?ete~ Seguin
Appea~ances:
fo~ the Hospital: ,'1~. Gynn H. Hamden
Ms. Eleano~ S. Dunn
Me. Jim Robeets
Ms. Do~othy Gallaghe~
Ms. Janet wilson
fo~ the Association: Ms. Dianne Nicholas
Ms. Sue McCulloch
M~. Sid Billsman
Ms. Sue Domina
Chai~
Hospital Nominee
Association Nominee
Counsel
Di~ecto~, ?e~sonnel Se~vices
Chief Technologist
Asst. Chief Technologist
Gegal Assistant
Counsel
A.A.H.?O. LaboU(" Relations Office~
Geievo~
Baegalning Unit Repeesentative
Hearings held at Ottawa on Novembee 12th and 13th, 1990,
and January 4th, 11th and March 4tn, 1991
The parties placed befo~e the Board a se~ies of g~ievances arising f~om
foU(" incidents fo~ which discipline was imposed upon the g~ievo~. The
parties ag~eed to consolidate the hearing of these matte~s and are ag~eed
that this awa~d should dispose of each of the g~ievances.
In ~espect to the'fi~st two incidents, which occu~~ed Saptembe~ 28th
and Octobe~ 2nd, 1989 ~espectively, the Association contends that no
discipline is wa~~anted at all. In ~espect to tne latte~ two incidents,
which occu~~ed on Octobe~ 10th, 1939 and Janua~y 11th, 1:190 ~espectively,
the Association acknowledges that conduct occue~ed which may me~it some
discipline, but maintainad that the penalty imposed was excessive. The
Association asks the Boa~d to modify the penalty in acco~dance with the
j~isdiction confee~ed by the collective ag~eemant in ~ticle 8.05.
In addition, the g~ievoe g~ieves that A~ticle 22.05 of the collective
ageeement was violated when he was called back to the Hospital to meet with
membe~s of management in connection with a fact-finding meeting on Octobe~
4th, 1989 &~d a disciplina~y meeting on Octobe~ 27th, 1989. The g~ievo~ is
a regularly sCheduled part-time X-ray technologist and these meetings fell
on his days off. The g~ievo~ ~esides in Comwall and boa~ds at a hOuse in
Ottawa foe the days that he must wo~k in Otta.a. DUt"ing all the ~elevant
times, the g~ievo~ .as regularly scheduled to wO~K two shifts or th~ee
shifts pee week. He has always woeked on the night shift f~om 4:00 p.m. to
midnight with on-call responsibility feom midnight until the day shift
commences at 8:00 a.m..
The eelevant p~ovisions of the collective ag~eement are the following:
1
Article 3 - MANKZE'1ENT RI~HTS
3.01 The Association ~ecognizes that the management of
the Hospital and the di~ection of the wO~lCing
fo~ces are fixed exclusively in tne Hospital and
shall ~emain solely with the Hospital elCcept as
specifically limited by the peovisions of this
Ageeemant and, without eest~icting the generality
of the fo~egoing, it is the exclusive function of
the Hospital to:
(0) hire, assign, eeti~e, di~ect, p~omote, demote,
classify, t~ansfer, layoff, ~ecall, discha~ge
o~ otheewise discipline employees, p~ovided
that claim of discha~ge o~ discipline without
cause may oe the suoject of a g~ievance and
dealt with as he~einafte~ provided;
~ticle :3 - GRIEVAi'lCE ?ROCEDURE
8.05 Discha~ge Geievance
The discharge of an employee dUt"ing the
probationa~y pe~iod shall not be the suoject of a
g~ievance o~ arbic~ation. The disc~ge of a
tempo~ary employee shall not be the SUbject of a
g~ievance o~ arbic~ation. A claim oy &'1 employee,
othe~ than a tempo~ary employee, who has completed
hee p~obationaey peeiod that she has been unjustly
discharged oe suspended shall be treated as a
g~ievance if a weitten statement of such gelevance
is lodged by the employee, with tne Hospital, at
Step No.3 within ten (10) calendar days aftee the
effective date of the dischaege oe suspension.
Such g~ievance may oe settled undee the Grievance
o~ Arbitration ?roceduee by:
(a) confirming the Hospital's action in dismissing
the employees, or
(b) reinstating the employee with or without loss
of seniority and with or without full
compensation foe the time lost, or
(c) any other ar~angement which may be deemed just
&~d equitable.
2
The Hospital agrees that it will not suspend,
discharge or otherwise discipline an employee who
has completed her probationary peeiod, without just
cause.
8.13 The Board of Arbitration shall not have any
jurisdiction to amend, alter, modify or add to any
of the provisions of this agreement oe to
sucstltute any ne. provisions foe any exlsting
peovisions or to glve any decision inconsistent
with the teems and provisions of this ageeemenc.
Artlcle 22 - ?R&'1IOM ?A~M&"'T
22.05
Call-Back
Wheee an employee has completed he~ regularly
scheduled shift and is called in to work outside
her regularly scheduled hours, oe where an employee
is called baCK feom standby, She shall eeceive time
and one-half (1 1/2) times her regular steaight
time hou~ly rate for all hours worked with a
minimuin of three (3) hoUt"s' pay at time and one
half her regular straight time hourly rate except
to the extent that such theee (3) hour period
overlaps or extends into hee regularly scheduled
shift. In such a case, she will receive time and
one-half (1 1/2) her regular straight cime hourlr
rate for actual hours worlCed up to the commencement
of her ~egulae shift. Hours .orked under this
article will not be considered hours worked foe the
purposes of overtime.
3
1. Tba B... Incident - Sapteotler 23, 1989
In respect to the fiest incident on 8ept.embar 28, 1989, mUCh of the
evidence received oy the Board was hearsay. It was alleged that the gri.evor
omitted to provide the. patient, B.il., a fourteen yeae old boy, with a
hospital gown and that the grie'loe slung the protective lead shield so
heavily upon the patient as to caus.e paln. It is fuethee alleged that
following X-rays, the grievor eequested tne patient to leave the eOQU to put
his shoes on in the hallway. Counsel for the Hospital advised the Board
that he had contacted the patient, but h.e did not wlsh to become invol\Ted in
the proceeding. The patlent's mother, who instituted the complaint alleglng
dlsrespectful treatment of her son, was not pr.esent in the X-ray room when
the pictures were taKen. Me. Billsman did not testify, so we do not have
any dlrect evidence of what teanspired in ~espect to this incident.
However, on October 4, 1939, the grlevor was called ln to the~ospital
to meet with the Assistant Chiaf X-Ray Technologist, Mrs. Gallagher, and the
Manager of Diagnostic Imaging, Me. Rob:ets, to investigate the facts of this
incident. Mrs. Gallagher took notes of this meetlng and testified with the
aid of these notes. She said the grievoe admitted that the patient, B.w.,
had taken off his pants in the X-ray room, to prepare for the X-~ays of his
Knee and leg. The paCient was still wearing his underwear, shirt and soc"-s.
She noted that the g~ievor could not recall if he had provided the patient
with a gown, out the grievor added that since the patient was still wearing
his underwear and would have the lead p~otector apron over his 10wee
abdomen, he did not think theee was any peoolem. Ms. Gallagher admitted
that the X-ray room dooe would be closed when a patient is baing seen by the
4
X-ray technologist. The grievoe denied slinging the lead apron onto the
pacient, and explained that he usually allows the patient to place it on
themselves. In ceoss-exarnination, Mrs. Gallaghee ..as as'~ed whether she
recalled the grlevor telling her that the eeason he aSKed the patient B.w.
to remove his shoes in the hall was because he was bringing another pat lent
into the X-ray room. Mrs. Gallagher could not ~ecall the grievo~ having
said that. She maintained that if that .as the rationale adopted by the
grievor, it was discourteous to patient B.w. be~ause it would talCe a very
short time to finish tying up his shoes and it is safee for the patient to
walK with laced-up shoes rathee than unlaced'shoes.
Mr. Rooe~ts was also p~esent ac the meetlng of Octooer 4th with the
grlevor. He referred to his notes made at the meeting to eefresh his
memory. He testified that the geievor aoknowledged that the patlent was
aSKed to remove his jeans in the X-ray room and the gelevoe indicated he
probably did not give the patient a gown. In respect to tne lead peotector
apron, the grievor indicated he could not remember, but he usually glves the
patient the peotector o~ shlelding to put on themselves.
A disciplina~y meeting in respect to this inoident was held with the
g~ievo~ on October 10th at .nich Mrs. Gallagher was present, but not Mr.
Roberts. Mrs. Gallagher testified in Chief and in cross examination that
the g~ievor at this meeting admitted that he probably did not give the
patient a gown; he denied navlng slung the lead peotectoe apron upon tne
patient. In chief, she indicated that the grievor said that it was not t~U9
that the patient was asked to finish dressing in the hall.
The Board accepcs that the ElnployeJ:" bears theoughout the bUt"den of
establishing just cause for imposing discipline upon the grievoe. This
5
bUt"den extends to proving the existence of the facts of an incident whlch
would warrant discipline and to justification of the quantun of penalty
imposed. We further accept that in deciding Ylhether that burden has been
met, this Board must not malCe ceitical findlngs of fact upon disputed issues
by eelying upon evidence which has no cogency in law, such as neaesay
evidence. Howe"er, that does not mean that within the context of the
evidence as a whole, there <!lay noc be instances where an onus of credible
explanation may fall upon the geievor to explain the reasons foe oe the
circumstances of hls conduct, paeticularly where such ~easons or
ci~cumstances are ~elied upon as a complete defence to discipline or to
mitigate the penalty. The oVe~all bUt"den of peoof rests upon the Employer
throughout in a discipline case, out where the facts upon which the grlevoe
seeks to rely for the pu.rpose of defence to discipline oe mitigation of
penalty lie pecullarly withln his knowledge, an onus of crediole
explanation pertaining to those facts may aclse within the context of the
case.
Having said this, the Board concludes that in respect to the,B.w.
incident, the cogent evidence of what transpirad in the X-cay room is
limited to the evidence of Mr. Billsman's admissions as eelated by Mrs.
Gallagher and Mr. Roberts. We therefoee find that the patient B.W. Ylas
asked to remove his je&~ in tne X-ray room and that he was not gi"en a
hospital gown. We find Chat the allegatlons that the gelevor slung the lead
protector ap~on upon the pat:ient so heavily so as to cause pain is not
estaolished. We also flnd that it is not establisned that the patient was
required to finlsh dressing (ie. by lacing up his shoes) in the hallway.
6
M~s. Gallagher testified that it has been hospital policy since 1933
that all out-patients, such as patient B.W., cnange in the Diagnostic
Imaging Department and the peocedure is that hospital gowns ~lll be peovided
by the technologist for all patients required 'co remove clothlng. On the
day shlft, she sald that hospital volunteers assist in seelng that patients
are issued a hospital gown and slippers. It was established that the
grlevoe has always work~d tne night shlft when he is the only X-ray
teChnologist woeKing in the Department duelng those houes. rne sup:rvisory
personnel work only during the daytime houes. At the relevant time of the
g~levance, it was established theough Mes. Gallagher chat the hospital
policies weee Kept in a manual in Me. Roberts' office. During the hours the
grievor woeked, Mr. Roberts' office would be locked.
The Association pointed out that the pat lent was at all times clothed
except for his jeans and shoes, and the lead protectoe apron would cover his
lower abdomen. Therefore, the Association argued thaG theee was no-basis
upon which to conclude that the patient was uncomfortable or that his
dignlty or modesty were oompromlsed. ~thermore, the Association contended
that since the policy concerning the provision of hospltal gowns was Kept in
Mr. Roberts' lOCKed office dU("ing the hours the grievor has always worKed
and sinoe this policy ~as not provided to the grievor at any time, theee is
no proof that the grievor Kn~W or ought to have ~o~n chat patient B.W.
should have been given a gown.
The Boaed concludes that an employee with t~n yeaes of servioe in the ,
hospital setting such as the grievoe, ougnt to be a.are that the customary
procedure is to provide a go~n to a patient, particulaely when the patient's
oute~~ear, such as pants, ace removed. Although the grievor has worKed
7
alone with considerable autonomy on the night shift, we have no explanation
proffered from him to explaln why he chose not to provide the patient with a
gown, as the grievor chose not to testify. That the policy manual ..as not
readily available does not necessarily establish that the grievor did not
Know that gowns should be provided. Mrs. Gallagher testified that the
gownlng procedure assists ln putting the patient at ease by respecting the
patieht's modesty and dignity.
The Board concludes that the grievor's failure to provide a gown to the
patient B.~. was discourteous and not in compliance with the standard
p~ocedure of which the grievoe should have oeen aware.
We theeefore turn to tne issue of the propriety of the penalty. Mrs.
Gallagher testified that the grlevor .as given a veroal warning in July,
1989 concerning discourteous conduct ln eespect to two patients. The basis
for the Hospital imposing a written waenlng on October 10th included
allegations concerning dropplng the lead protector apeon on the patient and
requiring the patient to put on his shoes in the hall..ay. We have
concluded that these allegacions we~e not established upon cogent .evidence
at the hearing. Accordingly, the Board finds that a veebal warning in
respect to this incident would be more appeopriate. The Board fuether
directs that the letter of October 10tn, 19.39, from Mrs. Gallaghee to the
grievo~, Mrs. Gallagher's notes of a conve~sation with the patlent's motner,
and the letter dated October 1, 1989 from the patient's motner to Mrs.
Gallagher, be removed from the grlevor's file. Although the Board was
adVised that the grievoe had been issued a veroal warning in July, 19.39
concernlng discourteous conduct co two pacients, since Key allegacions
fo~ming the basls for the Hospital's assessment of penalty fo~ the incident
8
on September 28th in ~espect to patient B.w. were not established, a greatee
penalty than a veroal waening ought not to be sustained. The grievance ln
respect to this incident is therefoee allowed in pact,
2. Grievance Cl~ Call-Back. Pav for Fact-Find.ing Meeting of
October 4th, 1939
The g~ievor shares his position with another X-ray Technologist. He
works alte~nate weeks of t.o shifts or three shifcs pee week. During the
time that he must work his shifts, he stays at a boarding house in Ottawa.
His residence is in Cornwall fr~n whlch he comm~tes to Ottawa to work his
set of shifts.
Mrs. Gallaghe~ aCKno.ledged that a fact-finding meetlng which she
arranged with the grievor, hls Association representative, and'Mr. Roberts
on OctOber 4th fell on the g~levor's day off. He was not scheduled to .oe~
again until October 10th. Mrs. Gallagner aCknOwledged that she had checKed
the grievor's schedule prior to calling the meeting and that she had tried
to ,reach him at hls boa~ding house in Ottawa on October 3rd. When pressed
in cross-examination about WhY the meeting could not wait until the
grievor's next shift, Mrs. Gallagher explained that it was a matter of
urgency to conduct the investigatlon concernlng the lncident with pat lent
B.W. and the second incid~mt on October 2nd, so the Hospital could respond
to the complaint of t3. vi. 's mother, and to the Elneegency Department
concernlng patient D.P.. M.rs. Gallagner added that based on past dealings
9
with the grievor, she Kne'. the g~ievor to be forgetful. Therefoe,e she
wanted to gather tne infoemation conceening the first two incidents while
recollection of the events would be fresh. Mrs. Gallagh:r fuether
acknowledged that she could not eecall any other employae who had been
called in to the Hospital fo~ a fact-finding oe disclplinaey meetlng on a
day off.
Tne ~ssociation aegued that the purpose of call-back provisions is to
recompense an employee for the inconvenience and cost of being eequired by
the employee to return to .or~ at a time that is outside and not contiguous
with his o~ her regular wo~king hours. The addltional expense of the
peemLwn serves as .ell to detee a'1 employer feom ~equiring such woe~ ~'1less
it ls wareantad by the lmpoetance or uegency of the woe,{. In suppoet of h,=r.
position, counsel eefereed the Board to several cases which review the
jurisp~udence on this point: Re County of Kent and Ontaeio ?uolic Seevice
Employees' Union (1932), 8 L.A.C. (3d) 133 (Swinton); Re Hydro-Electr.ic
Commlssion of the Town of Mississau~a and I.8.g.N., Gocal 536 (1915), B
L.A.C. (2d) 158 (ferguson); R: OntaeLo Hydro and OntarLo Allied ConsteuctLon
Trades Council and I.U.a.g., Local 795 (1984), 15 L.A.C. (3d) 207 (O.G.R.8.)
and Ke City of Toronto and C.U.P.g., Gocal 79, (1985), 12 G.A.C. (3d) 252
(P.C. Picher). All of the cases arciculate the puepose of the call-bac~
provisions in the mannee argu.ed b'l tn: ~ssocLatiO<1. Howevee none of the
cases disposes of the paeticular ql.lestion before us. The issue eaised
before us is whethee the call-back. premium applies co a meeting called 0'1
the employer to investigace an incident involvlng an emplo'1ee which illa'1 t:ad
to discipline being imposed upon the said employee. In such cirClJ;nst8.!lc,='3,
can it be said that the employee has been called bac~ to .wor,,'? Th:ee is no
10
qU2stion on the facts of this case that the maeting ~as at the behest of the
HospLtal; otherwise, che grievoe would not have eepoet~d to wor~ until hLs
nexc sCheduled shLft on OctOCee 10ch. furtneemore, there ~as consideeable
inconvenience entailed for the geievoe i~ having to comuut= the 1.5 houe
d~iva to Otcawa fro'n Corn.aLl an.d back.. The quest Lon in chis case is
whether the call-oack. premLl.Lu should apply when the grievor does not
actually perform work, but is ee~uired to attend at the woe~ place for a
fact-finding meeting aeLsing out of alle::;ations of misconduct beought
against him.
[n none of the cas;as cited to this Board, did the grievor not perforrn
duties and responsibilities assoclated ~ith theie posLeion. AetLcla 22.05
includes a minim~n guaca~cee oF. three houes' pay in the avent that the worK
required to be done can be perfoemed in less than that tlme. Thus
entitlement to call-back preml~u does not depend on the duration of t02 ~oek
required to be peefoemed. However, the language of ~ticle 22.05 stLpulates
that the employee is "called in to .or,,- outside rer regulat"lf scheduled
noues ... she shall eeceive tine and one-half ... foe all houes worKed ~ith
a inini'num guaeantee of three houes' pay". Tne ~ticle goes on to provide
that the miniJli.Lll guarant,ee does not apply if the theee hour peeiod overlaps
or excends into hee regularly sCheduled shift.
The Baaed concludes that the languag:e chosen bf ene paceLe" ,nanifest.5
an Lntentlon to have call-baCK premi~n apply in circ~nstances ~hen the
employee is called into work and perfoems ~ork outsLde hee regulae .0eKLng'
hours. Thus, where the emploY.'le is called-in to attend a ineeting, W'n,~eeLn
work-r,elated matt-ees ae,'l oeLng investigatied, out woe" is not perfoemed, the
prernlum would not apply. rhat Ls not to say t:~ac employees, such as the
11
p~ofessionals in this case, are not resp~~siDl~ foe the quality of the wor~
they perfoem. Indeed, it .as cleae from th,e evidence ln tnis case that the
Hospital expects Radiation Technologists to monltor the quality and accuea~y
of theie '.ork. Ho.ever, ln tne classic call-bacil: sicuacion, the decision to
requir.:.oeil: to De peefor!ned outside regulaely sCheduled hours, is the
employer's. rhe pr-e;nium s,er,r.es to discoueage the employee from puteing an
employee to the inconvenienc," of c-3.ll-ba;i{ 'iithO'le Crle eX:C:"3 cost beL~g
justified by ehe urgency oe the importance of Che woe~. In the instant case,
the employer's lnvestigacion is teiggered by the occueeence of an incident
in which the employ:ee is alleged to ha!Je oeeached the policLes a'1d
proceduees applicable to the perfoe;nance of his joo e<esponsibilities. It is
in eveeyone I s interest that Che peet inant informat ion conceming such
allegations be gatnered expeditiously, whilst recollections are still feesn.
On the facts of chis case, the paeticulae disincentive of the Call-baCk
pt'erniu,m would be counteepeod\l!cti",e to peompt and thoeough in!Jestigation oy
the Hospital of matters reL3.ting to ,misconduct a'ld ehe lmposition of
discipline.
In 8eown and Beatty, Canadian Labour ~oitration, 3rd ed. (1990) para
3:3410 at p.8-81, the following ob3er!Jations at':e made as the applicaoilicy
of call-baCK p~emiLlrn to -:::iec:rlmstanc,es .here peioe ,niscondu:::t disentitl",s the
employee from wor~ing:
Depending upon tn.: language of tn", call-in
provlsion, &~ employe.: may also be eequieed to satisfy
ceetain other oondicioo'5 in addieiCYl to ha!Jing been
incon"enlenced by an addicional trip to .ori{ in oeder to
claim the oenefit ...
There is also a consensus among aroit,atoes thae &'1
employee who eeports foe .0eK and is ai"Lsed thac he is
being suspended at the start of his shift for some pase
12
misconduct would not oe entitled to call-in pay.
Assuuing this to have been the first reasonaole
opportunity for the employer to so advise the employee,
arbitrators have stated 'that such persons could not be
said to have reported foe worlC where none is availaole.
'These aroitrators reasoned that, in SUCh circuust&~ces,
wor~ is availaole and that it ls simply by vietuc of
some peioe misconduct that the employee is not entitled
to do it.
Cited in support of tnat statement of principle are the cases Re
Sunrvpe Products Gtd. :19:33) 4 L.A.C. (4th) 62 (Chert~o~), Steel Co. of
Canada Ltd. (1971) 25 L.A.C. 525 (JOhnston), cited with appeoval in TnQnas
Built Buses of Canada Gcd. (1930) 27 L.A.C. :2d) 4J9 (Weatheeill).
'rhese cases address a situation Where call-in is claimed for reporting
to worlC for a snlft Which is not .orked oy eeason of the imposition of a
suspension. In the lnstant case, call-oack premium is claimed for reportlng
to the ~orkplace to attend an invescigative meeting pertainlng to
allegatlons of misconduct against the clai,nant. Parity of reasonin!5
dictates that the sane resulc should flow. The facts indicate' that the
ihvestigacive meeting was called in oeder to Z,:,L'JW Che Hospital to respond
promptly to the complaint concerning patient S.W. and the incidehc
respecting pat lent D.P. of Occooe~ 2, 1939. The investigative meeting would
not have been required oy the Hospital out foe allegacions of misconduct
aeising ln respect to the grievor. As noted at p.351 of the case, Re
U.S.W., Local 5250, and Steel Co. of Canada Ltd. (1971) 23 G.A.C. 325
(Johnston) the standa~d of just cause for discipline imposed upon the
Hospital by Articles 3.01(0) and 3.05 requires the Hospital to ascertain the
facts underlylng allegations of misconducc and to levy a sanction, if
war~anted, in a reasonaoly expeditious manner. The Board theeefoee
concludes that the call-baCK p~emiuu is not appliCable to the grievo~'s
13
attendance at th-a disciplinaey inHstigat iv~ :na,:tin:; held on OocO:)ee 4th,
1939.
As fu~thee suppoet for this conclusion, the Boa~d notes that ln
Articles 7.06 &~d 7.09 the pa~ti~s have sp~cifically addeessej thos~
sicuations in 'Ilhlch ti,na sp~nc on ;natt~rs whi'~h pertain to th'e
administeatlon of th~ Goll'ect1ve agee<e;n=nt is compensaole foe duly s.el~,~t;ed
emplof~'e r'epeesencaciv~s. [n the aos~nce of SUCh a peovision speak~ng to
attendance ac a discipl1naey investigativ: m~'eting, a~d given tn: puepose of
th: call-bac~ premi~n, to~ Boaed finds tnat such an att~ndanc? ought not to
be chaeacterized as .oe& for th~ purpos"s of tn~ application of the peemi~n.
Considering the obj:ctive s~ev~d oy th: peovision, togetoee with toe
language sel:oted by the pa~ti?s in ~ticle 22.05, the Boaed finds that the
call-bac~ premium is inapplicable to th? fact-finding m?eting of Octooee 4,
1939. Thus, the grievoe's clalm to call-back premium in eespect to hls
attenda.'1c: at th? Hospital for tn: fact-finding meeting on OctOb~r 4th 1s
denied.
3. The D.P. Incident - October 2, _1909
The grlevor was suspended for on: daf 00 Octobee 11th foe having moved
a patlent froin an 'I.-cay str~t;;'1"e to tIP- X-Cd! table at appeoxinately 5:00
p.m. and again at 7:00 p.m. to i;~e X-cays of the pacient's feactueed eight
f~mur, s&ull, chest, and cervi<Cal spin: eesp=ctiv>=Ly. rh'e lett?~ of
discipllne states as fOllo.s:
14
rhe Hospital has co;npletad its iov,;stigatior'l of the
incident whlch occurred on October 2, 1939 iovolving a
patient, Me. P.
You ,noved trlis paCi,enc, .ho had iOuLtiple injllries
including ar'l oOvious feactured femur, twice feo~ a x-ray
stretchee to the x-ray table. As you kno. the steatchee
is designed to facilitate the t8^ing of eadiographs
.ichout moving the patient. Given the natllr,; of tile
patlent's injueies, SLJ;;h a mov,e is dan3;eous and pllts
tne patient at unr'lecessaey eis~. Moving,a patient .ith
such a feacture runs con teary to basic x-ray tecnnology
principles and is a beeach of YOllr peofessionaL
responsioilities and standards.
'lOll have been disclpLLned in th,,, past foe your actions
with patients. In July you received a verbal warning
and in Octooee a weitten warning eelat;;d to youe conduct
to.ards patients a~d your level of peof;ssionalisn.
In vlew of this most recent incident a disciplinaey
action of a one day slls;>ension on October 11, '1939 '.ill
be issued.
Should any further incidents arise in the fUCllre,
strongee discipllnary action will be ta~en.
(Letcer expurgaced as to full nacne ot pacient
to peotect pacient confidenciaLity)
Blll Davis is a eegistered nurse .ho woe~ed the evening snifc in the
Emarg;ncy Departillent on Octobi;!r 2nd and who attend,;d llpon thi;! patient D.P..
rIe testified that the patient was teanspoete1 int:o t:he E,neegencf D<"paet:,nent
feo:n the amoulanci;! on a bac~board, with a cervical collar applied, nis le3s
steapped togethee and a yellow plastic splint: applied to the rignt leg.
Under the supervisi01 of Dr. Stewart, Me. Davis said that the patienc was
moved from che feactllre board onto the X-cay steetchee &~d the splint steaps
were cut so that the feactured eigne leg cOllld oe exanlned and abduct"d to
align the 'oones. The eecord of teeat,nent completed in th:e Energency
Depaetm:ent indicated that the patient had suffeead multiple injllries to his
15
s~ull, chest and eight femur. X-rays ware oeder~d for these areas. rha
pat;ient had been teansf.~rred to an X-ray "te,~t:)iP-e whLch Ls glass-topped
and spe:)ially designed to acco'll'nodac~ ;{-ray ~assett;es so that the X-rays c&~
b~ tak~n .Lcnout tran"feeeing the pati~nt to the X-~ay taole.
,'Ie. Davis tra~"pocl;~d the patient to th~ X-ray depart;:n,enc on tne X-ray
stretchae. He described the patLant as ,no&~ing a~d sceeaning "ita pain
tht"Oughout the e;{alJlina~ Lo.:1. L'l ti1a Eln:ergen:)y D.apaetl~.:1.t and dueing tt:ansit to
X-cay. He stated that the ~atL~nt had not been sedated although a
tranquillizing gas .as oedered, but 'the pat;i~nt had reject;~d Lt;. ~r. Davls
explained chat the rignc leg still lay in the yellOW splint, but since the
feaccue.a .as high up on the leg in the upp~r ~nd of tr1e fernue, and si'l:),e tn.e
steeps to the splint had be~n cut ln ti1e E::neegen~y Depart,nent, the l,eg .as
essentially U!lsuppoet.~j. 1hlS, the poetion of the Leg belo. the fea,;ture
site could flop aOOUG .ithill the splint, 1,1'1le,ss it ..eee held durlng any
teansfer.
Mr. Davis said that when h~ beought t~ patient to the X-cay
depaetrnent, ne told the grievoe that X-cay" of the nead, :)hest and rLghc leg
.ere eequie.ad. H.e 8.dd.ad that h,~ suggesti~d to the geievoe that the patient
not; be moved. ilhe!l the geL,vor a~ed Me. Davis to help him teansfee Cne
paCient to the X-ray cable, ~e. Davis eefus.ad s8.ying Chat he did~'t thinK
Ch2 patient shOuld be mO'l,ed, &1d that he would not h~lp tne grLevoe to mOve
the patient. Me. Davis th.en retum~d to the X-ray depart,neat.
Throughout his testimony, i1r. Davis iadi~ated that it is part of basi~
nursing teaLaLng to know that a teauna vi~i;in with a fractuee of a loag
bone like the fenue, shOuld not oe ,nov,ed lest fatty emooLL oe olood clots 02
eeleased, oe arl arc.ary s2veeed. He aCKno..le.:lged ho..ever that at Che ti'ne he
15
suggested to th~ geievoe Chae patient D.P. not be moved, it was con~~en
about the pain of the pai;ient thai; was upp::ernosi; Ln his ,nir1d. He explaLr181
that if a fatty emoolus oe blood clot is eeleased a~d lodges in a patient's
lungs, eespieacory dLsceess can ensue oe pneLlnonLa. Mes. Gallaghee added in
hee testimony that if a fati;y e'noolus lodges in t:~e ocain, iC causes a
stroi{e; Lf it lodg.es ir1 the heart, it can lead to a facal neart attac,{.
The nursing notes feon the evening of Octoo2r 2nd peetaLnLr1g tQ paeL8r1C
D.P. weee filed in evidence as ",ell. The chaeg.e nues,e, ',{"ndy Peatt, "ho
signed the notes, was not calLed to.Cestif/. rhe notes indicate that the
patient D.P. was sent twice to X-rayon that evening. He .ent to the X-cay
Depaetment fLrst ac appeoxirnateLy 5:80 p.m. foe the first s~t of X-rays of
hls rLght fe,nue, S{'lll and ch.est a~d then at approxLnately 7:00 p.m. foe X-
cays of his cervical spine. rhe pai;ient Jlas assessed at 6:25 p.'n. by Dr.
Gitcens and Ms. Peact indicates ther.e is "no n,,;ncion of LnnooiLLzaclon of
the leg, so mor,:: enan LL~::Ly o'lOC done". ,'1r. Davis "as sufficLencl/
conceened .hen he learned thai; pat Lent D.P. had been moved in the X-raf
department by the grievoe, thac he '.eoCe a note on Octooee ,::Cnd to :4". Peace.
That note was idenCified a'1d filed; ic reads as follows:
This is to as" YO'l to loo" into .ny ,sid Bi L Ls,u3f1 the
XRaf t.eci1nL~ian 0(1 ,'1onday evening at appeoxLuately 1180
had to 'nOve a paC Lane wLth an 0t3VDU3 oeo"en fe:uue,
unstaole. [cefused to help him move Che paci~nC wno
.as ceyLng "itn pain and Sha{ing NLth shOCK. 30 he'
rnoved hiin off Che Xeaf si;reConee on co tneie macnine.
when Lisa L. went co CheCK on tne patient at
approximately 1720 She helped pull the inatteess baCK
onto tne Xray str,,;echee.
[n cross-examinatLon, Me. DavLs admitted tnaC upon eh"; patient's eetuen
co the Emeegencf DepaeC,nent fcom X-raf the patient was noc ln any woese
17
condiclon, noc in any moe.:! pain, nor in a different positlon. He
ac~owledged that the pacienc .as conscious a~d neith.:!r th~ patient; noe any
membee of his family >loiced a~y co,apLain~ about; o~Lng mO>l,ed Ln en,," X-ray
Department.
At the sam~ ~eet;Lng on ac~ooee 4t;h that; she Ln>lestLgated the incident
on Septe~bee 23th, 1339 .itn patlent a.J., Mes. Gallagher ~uestioned tr1~
gri.ellor about; .hat teanspieed ",ita patient D.?. .'1rs. JaLLagn,er ,nadc not.~,'5
of this inteNie", and of the grievoe' 5 eespons'~s &~d sne eeferred to those
notes to e.:!feesh hee me~oey.
\ih",n as;ced '.hethee he mOiled the patierlt witn a fractueed unsupported
femur onto the X-ray taole, th.e geLevoe eeplled "'{~s". ,{hen as>c,ej wh.:!t;nee
he had assista~c,e Ln 'nolling the patient back to tne X-cay stret'cher, the
grielloe eeplied "Yes - Go craine f1eaghee and t;h,~ ~atLent's fathee". 'Nhen
as<ced wnecher h~ mOll,~d eh,e pat Lent feo;n the X-ray str,ec:)rl:ee to the X-cay
tabLe approxL,nateLy two hOllrs lat",r to do the cervical spine X-rays, the
gri.e'lOr eespoaded "fes". ,\ks. GaLLaghae then as,ced woetnee he had
assi.stance co effd::;t tnLs .nOV(~, th:; g("i:~ljo(' C'~:3po(),d~j f1'{,~s, Paulall. rhis is
in refeeence to Paula B('o.n, anot;he(' X-('af TecnnologLst .ho was wo('~Lr1g on
thl~ sana shift: that; :~v~nir1g dOirl,g lnammograffis. rha g~i~vo::" ...;as then aSr<2:d
.hethee he had assLsca~ce to transfee Che pat Lent baCK to the X-raf
stratchac th\:;: s2co~d cLUe; th2 g("L~\loC' r.~pliej "fas .- r...,oC'rain..:: M2agh~(" and.
the patient's father". ,ihen as,c.?d .hy he 'nolled the pacient, the geV~Ilor
eesponded tnat hLs procedure .as faster, entailed less radiaclon foc the
patient, and less mOllemenc for cne patient and fe",ee eepeats, because ene
radiograph eesults weee moee accu('ate.
13
:1rs. Gallaghee aCkno.le.:lga.:l ti1at it Ls ;uoe~ tLn,"'-'~O,1.Sll;ai!13 for the X-
eaf technologLst to t~e X-eafS llsLng the cassett2s a~d X-cay steetch3r
t>~caus~ ch,~c.; is no GenCl~('i(lg Light, and moC'~ car~ Inl.lst b~ tal('~n to pO.5L1;Lot1
the cassettes properly. l'1rs. 3allagh,~e also a(:K.'1o.L"dged that th" [J8.i;La!1l;
could be e)(pos~j to moe" eaJlatlon usin3 the (:ass,~tt~s with the X-ray
stret(:hee than with the X-raf t3.ol" whL::h ls ,~~llLppej .ith a geid to s;::att~e
the radiation. In respecc to th,:> gei~voe's ;::o,nfrent chat trre qU'3.1itJ of the
fil;us is bettee using the X-eaf t'3.o1e, Mes. Gallagh"r indi(:'lted tnat verf
aG:::ueate, high eillsolutLo!1 pV::t1lres aCe l,ess celtiC'll co sha. an obviolB
fea(:ture of the femur, such as that sclffee.ed Of th~ p'lti~nc.rhis .ould b,~
a moee ilnpoetant factor if th,e suoj.ecc :natt,ee .ee':> a dlseas,e peocess, eathiee
than tra~na. In eespect the gelevoe's connanc chat there would be no
movement for the patient because the transfer .as so s,nooth, Mes. '}'lLLagner
opposed that view, saying that th.ere would o,e less mOve'l8nt for the pat i.e!1C
If no teansfers h3.d be,en .eff.eGt,,:>d. !1es. G'3.Llag!1.er questLO!1ed I'Iheth,ee the
leg was unsuppoeted a~j th.e gri.evoe eesponded "Yes, out it had a yello.
SpUrlt feom the amoulance aeol.lnd it".
On Octooee 10th, 1939, Mes. Gallagnillr m.et .itn the geLillvor agaln, witn
Mr. Roberts in atterldance, '3.3 ,.,ell as th" Asso.:::lation r.epresentacive. Th.e
grievoe was advis.ed that a on,,-day sU:3p'e!1:;lon '.ouLd be l'npo3ed and seend Of
the grievoe on Octooer 11th. The geiillvoe protested thdC it should b.e 0!1
Octobee 12th, which would be the last of a the2e day stine, rathee Chan in
the middle. Th.e geLevor asked ,'1es. Gallaghee I'Ihf there \faS sucn a prool.e,n,
sincill any transfee of tne pat ierlt had b,e~n s'no:)i;il and \fitho'lt 'Ilov,,:n.ent co
the patienc. Mrs. Gallagh.ee aSKed him if he ~'1d.erstood the eanifL:::aclons of
trarlsf.eering a trauma patLerlt .ich a long bone fra(:tllr.e. rhe grL.evoe
19
eespond~d "Yes". :-Ies. Gallagh,~r th~n as<C8d wh3.t ace tho? eaaifi,;aeiO'1s, and
tho? grie\loe eepLLed ".{haC you saiJ - fatty emooL i". Tho? grievor then seated
"Dc. rad~os said en" fiL'Ils :,[~r,~ ceally good". Mrs. Gallaghee cou~tee,~d
"That ls not the issue". Mrs. Gallaghee tesCHi"d that sno? .as l,=ft .Lth
the iiUpe',~ssion fro,a th,= la~"cing Chat Che ge-ielOe did not really a[J[Jee,:;iat,~
the seriousness of his misconduct.
Latae on Octoo~e- 10th, 'Irs. GaLlaghee '!lat .ith 23.uLa Brown who
confLe:aad thae she had assist,~d t:'le geievoe in teansfae-~ing pacient D.2.
feom tha X-ray cable foe- X-rays of tne cervical- spine. Ms. 8eo.n dLd not
testify at the nearing to desceib" tha ,aethod used Oy Che gria\loe- co effact
tna teansfee. rhus we ace left with a nota weitt;~n by ?3.ula BrOwn to Mrs.
Gallaghee conceenlng hac pae-t;i;)ipation in ch,~ ceansfee a'1d :'1rs. ~aLlaghee's
notes of hee conv'ersatLons with 'Is. aro.n on October 4th and O:::tooee- 10th,
1939. Mrs. Gallaghee issued a veebal waening to Ms. 8e-o.n. ~aongst Qcnee
assurances, :\1('s. Jall3.3h~e '1:)\;'=:i t;i'B.t "-Is. Beo.'1 eeql.l~st,~d tnat X-,.3.y staff
be educati!d aoout th,~ peo()"(' peoc,"duea COfl,;,'l!ming X-cats of teauma \lictlms.
:-Ie. Rooercs, who .as pe"d,~nt as '.eLl at tne fact-fLnding me,~t;ing of
Octobee 4th, indicated thae t;h~ 1uestlofls po:;,';(j, arlJ a.nsw=es peo\lLdaJ. ;)f the
gC"ielJot" ia raLal;ion to pa1;L8:rJ.i; O.p. A'~ra as .'1::"5. 3aLL3.gh=C' C',~Lac:=d In a3'C'
testLnony. ,-Ir. Rob'l!ct5 cotllln~ntad that he did not acc-:pt che g,L:l\loe's
rationale foc transfeceLng che patient to thi! X-ray table feon tha X-eal
stretcher. Although the diagnoscic :[uality of X-cats is bett,~e [eo,n the X-
ray tabli!, th'e natu(":~ of tn'l! fcactllee .as so O;)v'LO'lS that che 3.ccueacy and
eesolution of tn,~ eadiogeaphilas not; as ceuciaL. fue the ernore , ,'1:'. Rol:J.~('ts
disage,=,"d that tne pat Lent .ould b'e exposed to less eadiacion using th" X-
eaf table v~rsus the X-ray steacchee. Mr. Robe('cs indLcat~i, as did Mes.
20
Gallagner, that the nu~o~r of eapaats eaquie2d depended upon the s~ill of
the radiology teChnologist rath~c than upon .hethee th~ images weee talCen on
tha stretchee oc tha taele.
firJ.ally, ,'1r. Rocert.., dLsage~~d tiMt Ch~ tearJ.sfac of tha patLerJ.t
entailed l,~ssno'le,n,~nt. 'E'lan .itn the assLsta.rJ.c~ of two othee p2C"SOrJ.S, ch:~
Hospii:al's concern was that Ch~ Leg .as LItlsuppoeted and theee foe'e if the
move was effected, the flatiant's leg .ould ha;;,e to b., h;eLd as '''ell as-tha
st~~tCt1~(" to d:f1S11Cc Ct1d.C Ll; s:;~f'~d in pl3.G:~ dllC'Ln.~ :;h,~ cC"aflsfar. rha
persons used by the geLe'lor, aside from Paula crown, weee untrairJ.ed to
a..,sist with such a InO'le or to undeesta~d the peofler allg~ment of the leg.
~~. Roberts emphasized tnat it .as pact of the oasi~ tcaLrJ.LrJ.g of a c~iiologf
technologist to mo. that trau,na 'lictLllS should be eadiographed on the X-
cay Stretcher, eathee tha'1 teansfeered to the K-eay table. ~r. Roberts
identified an exceept feo,n a eecogrJ.ized standad c~x:t on anaton:rNhLco.
supports this view. ~rs. 3allag~ee had ~efeered to this text and basic
ceaining mat::!eial fro,n the san.~ school that the grie'loe had att,ended, ale,eii:
many yaars prlor.
rhe conceerJ. ex:pc2ssed by both ~es. 3allagner a~d ~r. Rooerts .as that
the teansfers were unrl<ecessary A.rJ.d ,~rJ.cailed ge,~atee cis,;: of seeLous
complications to tha patient and that tne grie;;oe had utilLz:~d uClteaLrJ.,ed oc
insufficient numoers of personnel to assLst hlll. Foe Lnscance, on the
secorJ.d transfee aeo~~d 7:CO p.m., the grievoe was assisted Oy &'1othee
teained technologist, but ti1er.e .ould need to ce so'n.eone to help co
stabilize Che leg, parcicularly gi'len the possU)Llitf of sflas.n, a~d anothee
peeson to hold the steetchee in place. On other ceans[ers, th::! seceataef
1.0eraLne ~eagner and tne patienc's father assisted. Thase paople ..0uU rJ.ot
21
oa teained to do so, altnough . - Ls claar thac not a lot of trainlng is
L~
t"equLred to hold th: 5GC"8:tch,~c tL:?;htly against eh: X-raf table.
rhe grie\loe did not tastiff, noe did anyone eLs~ '.no'.as pC'\~;:5~~(ll; ir1 th.:=
X-cay room when tha patient was teansferrad, sucn a3 Loreaine Maagh8e oe tn~
patient's fach8r. Mes. ~allaghee dLd not spea~ co th~ patient oe his
fathae, although the patLant was stLll in hospLtal on Octooer 4th and 10th.
Instead, Mrs. Gallagher ealied on the infoe~atLon she ootaLned feo~ the
nurslng notes, Bill Davis, Paula Beo.n and the gei8voe.
The Asso~iation invited the Board to vie~ a video of the grLevoe
effa~ting the teansfee of a peeson feo~ &n X-ray stretchee to the X-ray
table. rhe person ln the role of patient l'Ias not inj'leed Ln any .ay and the
video does not show any peesonnel assLscLng the geiavoe Ln effecting cna
transfer. In the lnt8eests of claeLtf &nd fairneSS, sinca tha video did not
recreate exactly .hat occueeed .hen tn.e geLavor a[f.eccad tn,e teansfees- of
patient D.P. on Octooae 2nd, '19:.39, counsel agce=d that cne vid'8o dLd poeteay
accurately tne foLlo.ing:
1. the method of transfer Ln\lolving pull Lng sh.e8l;s <.n,i:=e
the mattress .heee th~ pat Lent is eescing so as to cause
the ~atceess to slide feon the X-eaf sc::",ecchee to the X-
raf caoLe;
2. the X-raf steet~het" and X-ray taole we::"e on the sane
plane on the nLght of O<;l;ooi:le 2n:i, 19:.39 and in th.e
video;
3. the grievor .as posLcLon.=d in che fnLddle of l;he X-ea!
taola and geaobed each cornae of the Sheat a~d pulled it
to,.;ards him to ~ause trP. ,nattee,3s to ,nO\l~ to.ard hi:n
feom the X-eaf steetchee to the X-eaf table. Next the
geie\lor pulled the Upp,er end of the ,nateress usLng the
sheet and then the lo.~e end usLng the sheet to be suee
the ~atteess Has full! transfereed onto the X-cay taole.
22
In tne '11deo, tne pati~nt a:?p,~ae,~d to O~ teansf~ee,~d s;noothlf and
without any appreciaola ,novement. Ho.e'lee, the person playing tne cola of
pat Lent .as C.1nlnjue,ed and theca fore would not repr~senc the ,novem,ant oe
cont~ol which a teau~a victim, su~h as patient D.P., wLCh a lon~ bone
fractuee .ould 2xpeeLence oe exact. ~es. Galla~nee ac~noHledged that tne
method of transfer~Lng patients using S~~dCS und~~ the matteess was Kno.n to
hac as suLtable for the teansfee of patients Ln aoJo,ninal ;)aLn oe feaLl:
pa~L~~Cs. She r8~ainej sCaadfasc in h~c vi?w, ~v~n wn2~ p~8ssad ia c~oss-
examination, that this method was unaccaptabl-e to teansfer a teau~a victLn
such as D.P. with a long oone fracture, pat"Gi,;:.1l3.rl/.he(l tna attandin~
nUt"se had recommended that the pat ient not oe ,nov",d and t(l3. pat Lent had been
placed upon an K-raf stretchee in the &n;rgency Depaet,nent. 'Ie. Robeets .as
of the sane vie'N, and steessed as well the peoblems of effecting such a
transfer using unteained pe~sonneL to assist. r~e steetch~e should be~ld
in place againsc the X-cay table and the beo~en leg should be suppoeted and
kept aligned. Me. Robeets ~otified the Medical Dieectoe of the HospicaL of
the incident and eeceLved the folLo.ing eesponse dat,ed Octooee .5, 1339:
Significant fractuees of laege ma~eo.-~ontaLning oonas
can lead to fat ernooLLsm e5p~ciaLLy if tne patL:ent is
excessi'lely moved. rhat is a majoe conside("ation in
S9Li(ltin~ B. r:C'a;i;:l(,~ or .-3. lar~.= oond. R-;ln~ln.J..~(,,: I?IRSr:
do no har,n.
Having conducted a thoeough ee'lie. of the evidence in connection Nith
this incident the Boat"d .ould make the folloHin~ findings:
1) It is pact of tne basic teaining for eadLation
tec~1010gLsts to ~no. that pacients .ith feactures of
long bones such as the femur should 0': X-eay,d on the X-
~af steetchee and not be teansfeeeed.
2) The geievor ought co have known tnat the transf,e of
pacient D.P. .as noc ad'lisable, on the follo.ing
23
~eounds: th: natue~ of Gh: X-ray r~~uLsLtL<Y1 a~d injury
\ia. fCaCGut'2 VdC'SUS dL52as8 ?CO'::>~S3); th2
eecom:nendatLo~ of 'Ie. D"lllis, tn~ ai:;t.~nding nues,:, :10t to
~ove tha patient and Mr. DavLs' e=fusaL to help tha
gri.='l'oc .,.;h~n t;h~ g=-La'Jor Sllggd5l:..=d th.: tra!'ls.Ear; the
patLenc had aleeaiy Qaen placed upon an X-ray steeGcher,
aIld 'I..-rals sULi:;:~,)l,~ in quaiitf ~"lJ1 oe ta,,'~n. [nd~=d,
!1es. GallagMe t=,stLELad that technologLsi:;s h-3:J,~
in3isi;~d that GCallUa \fici;L,:ns b; (,,'2cuC'rlc:d co Ene:C'g.=n~i
foe tesns[=e to a~ X-raf steetchee so that they dO~'C
halle to te:~nsf;ee tile pati:ent to th= X-cay table.
~inally, on tneee occasions, the ;!;rievor utiliz,:d
assLsCanCs who ~ere ullteaL~ed to nelp in ceansferrLng
ti'1e paCie~t D.P. oac~ and foech [rom the 'I..-eaf steatcnar
co th= X-ray taole - nanely the patL~nt's [athae and
~oeeaine Meagner, a seceatary.
5) The patlant D.P. fortunacely did 'not suffer any haem
[roln Cha tea~sf=es to and [com tn~ 'I..-eay streCchae foe
the X-rays at 5:00 p.n. a~d ac 7:00 p.m. on Octooer 2,
1339.
4) There ar'~ seeLoils eLS'l:S a::lsocLac~d W'ith the 'llov,<uent of
a teau>na paGient with a long bone feactura including th.,
nl.ease of fatty e'llOoU oe oLood clots oe che ::lelleeance
of an artery, that; ca~ ::lerLouslf cOillpr~nise a patlenc's
C'd:~O"':~C"Y. F\lrthcrmoc-::, th-:ra is a C'i:3'< enat ch.~
patLetlt 'nay go i~Co ::lpasn, .hi;)h ca.n cause difficulties
in affactLng a smooth tr~~sfcr~
5) The policies co~C~e~Lr1g t:1,e .nooLl L7.e~"lJ1J not bloG~ing
hips foC' X-r:afs .ol~C'.~ put; in pLa~~.-= aEi;:-;C' Ch,~ Lr'l;)Ld~rl::; of"
Octooer 2, 1939. NaLChee polLcy estaolish,s thac it was
not pact of the oa::lic train Lng of an X-eal technologist
to >moW' Ghac a Ge3.ulla victLn with a lo~::; oo~e fracGuee
such as patienc D. P. should not be ,nollel feom tha X-cay
sceet:;hee a",p,)',; La III .{'lo>11 ehe attending nue::le put tne
gei.evoe on notic.e chat fueth.ee 'llO'l.ernenc of cha patL.ent
'Jlas not ad'lisabh. rfla e)(a:nLna~i()~ and aLL3;nment: of tna
paGient ':3 injured l~g conducted ln tne Eineegency
Dilpaet,n,"~c .as ;:>=rfoened by a pilysbLa'1 or u'~dee the
supaevisioll of a ph{sLcian, teaineJ to deal \'lith SLl:;)h an
injLtr'y and a.aee of the riso:s asso:::Lated W'ith such
Inove,nant. rha ma~Lp<.llaG ion of the patient in the
~na~ge~;y 0,parener1G does not reliell= tha geiavor feon
rasponsLoL Uti of a'loLdi~g furth.a~ .noven,=nG in tha X-ray
Oapac l';~r1i; .
5) rn.ese rLs:~s ShOLlld have b,een knOJlCl by t:1e gei.,'.{oe and
...raighed ltlll;n th:= a.j\fi-:>~ of tn.~ at:i~~r1di(l~ l'luC'5,~ 1 L'"L......
Davis, not to 100lle t:1a patient. rne e,aqLlLsition foe X-
cays to the S.\:ull, ch2:3G a~J eight lag of paGient D.P.
24
contained no insteuction from Dr. Stewaet oe &~f of the
oth~e att~nding PhfsLci~~s, namely Dc. Gitt~ns and Dr.
radeos, not to mo~~ the patient. Notwithstanding Chis,
a e,~:3ponsio l,~ ,nat1l0.:le of 'th~ health cae~ t,ean att,anding
upon paciant D.P. e~eecising due care in tne
cLe<;'lnsc:3.'1ces,.;o'lld not hav.e mo~ad th~ patient. 'N"
find tne gei,,,~oe made an .eeroe in jlldge'nent in deciding
to :no".e til" patienc and that su;h ~eeoe oeeached the
scandards of caee .hich a peop"rly teained X-cay
technologist would ha"e pro~ided in the circunstanc.:ls.
The geie~oe did not GesCiff and theeefoee .;.:l have no
ceason to Joui)t; 1;f1~C th:::: gcL.~lJo(, ("-=caLI/ad t.h~ sa:n.3 basL~
tralning that oC:'1Cle 'f..-eaf tecnnologi3CS eeceive. rh~
justifications pro~ided Of th" gei""oe foe his actions
wee-e eefuted bf the e~ldClnc,~ of his sUGl=Ni soes .3I1d ace
found to be inad'equac,~.
7) rne grievoe o,~aes peinaey r,esponsiaility for deciding to
transfee the paGient D.P. feom the X-raf stretchClr foe
tne X-rafs to his s~ull, chest and eight leg as wClll as
foe the X-rafS to the patient's cer."ical spine. The
paeticlpation of Paula 8eown in assLsting on one
occasion was noc as exc.:lnsiv" and .;as ac~owl.edgad Of
nee to oe .rong in the circ<.1ustances. ThUS, tM Board
finds that the fiospi~al .as not '3.:;cing L,npeOfl.erlf Ln
distinguishLng ctle disciplinary p:~nalci,.e, L:npos,~d upoo.
the grieJor a'1d'1s. Beo.n.
3) Although it '.;o'lld hav, been peef.erable to ha~e th~
dLeect .e'Jide:'!,c.e of .h3.C teansoir.2d 0,'1 the Geansf:.ee3 fro.n
Ms. Brown or som,.e of the ocners .ho aasLst=d ti1,~
3('1.8:voc, Ch:-;: .~vid~nc~ of ,VIe-s. Gallag(l,-=~) t;n.~ ai.nLssi.or1s
of the geieJoe made to i1ee descrLoi:'!g the teansfee, and
the evidence of Bill Davis ace suffLcient foe th.:l Boaed
to piece togeth.:le whc3.G o,;cller.ed. r<1e video pe'~Glae,ed Of
the griCl~or .as self-ser.~Lng a'1d did not accue3.tely
r~..::c.~aG,~ what; OC":;llr'C',.:J on th2 ~"-~:'1L:13 of J:~C6)~c 2nd in
all the salLent detalls. Th.e Boaed finds that the
8.npLo'fcC" 0(1 t.~'1d ~vLd~r1;~ .-3.jd:l,;~d -~.>tq'.)LL:3h::d gtOUr1ds for-
dLscLpline. [f Ghe geie~or wisned the Boaed to fL~j
chat th,.e CO\leS,~ of .eJ,~nts d,.esceLbad was factually
inaccueat,e or thac ti1.'~ee wee,.e otheenlti8;atlng factoes
pertainin5 to the teaining of th~ gei,.eJoe oe the
polici.es of the fiospital, ch=ee was an onus of
~xpl@"~tion .;hich fell upon th~ 6eLeJoe o~ suCh mattees,
althougn the fiospital ~.:lr.caLnlf aeaes che oJ.erall ourden
to =stablLs:~ mLs--;onduct and just iff the penaltf imposed
of a on'~ da.f sllSp:ension.
;,-
--:I
Based on th~ for~~olng flndings, we conclud~ tnat th~ Hospital has
estaolished .s;eounds foe the i,aposition of di,5.~ipLLne ill eesp,ect to che
gei~I/or's te3flsfer" of patiellt; D.? from th~ X-r:af scret;~:~er on the u~nillg
of October: 2, 1339.
The Association submicc,ed that since tne penaLci,es foe the 3.ept,e,ao,ee
23Ch, 1989 incid~nt wiCh patient B.w. and foe Ch,e OctoO-~r 2nd, 1939 incident
.iti1 pacient D.? wer'e impos,ed OIl tile sarna dat.e, Oe::tooer 1,Oth, the .
disoipline could noc be peo::;r:,essil/.e arl.i "ee'n its eeil';l.Oilitacil/e puepo"e
oecause the griel/or had no oppor'tullitf to leam fro,a til~ penaltf i,m[)osed.
with eespect to t;~e B:il. incident. \{,e reje-ct tha,t argLlin~nt. rne ti:nln.s; of
che irnpo'3itio~ of tne penalti,e5 .as an ar:tefa~t of th~ peoximity of the two
instances of miscolldue::c in the context of the gelel/oe's unusual sciledule of
worh::ing hours. The nature of tne miscondll:,;c.8.'5 '~'lic.e di ffer:ent in each
episode. 'ilhLle peogr:essil/e discipline should s~rve co ooerect ,aiS<"<9llduGt,
it also seeves c'1e purposes of pl.l(llsh:nent 'l.nd detereence.
[ndeed, from tile e"id~n~~ of Mes. GaLlagner:, ic .as app'l.e~nc that lest
tn,~r-= be any furt;h~c lnisapp('~~h.='1sLO(l .::XU0r15SC X-tay t;:-=Ch.doLogL:5ts a:5 to Ci1.:::
peopee peocedl.lee foe nandlin.s; paci~nts .iCh long bone feactue:es, an in-
s,et"\Ti~,e was latee held. on till" copL,; and the poLLcL.e;5 concemLng the
rnooiliz~r and tne bloc:~i'lg of hLps .er:e [,lr'o,a'lL.:;aced 011 November 7, 1990. "tie
t~e thes~ actions as an illdicatLOIl of now seeiously the HospitaL vLe,~d tne
nacuee of the grievoe' s misco,~dl.lct on J<)tober 2, 1.139. 'tie heaed no HLd.enc~
fro,a och=(' X-ca.! tachn0LogLst.:3 4'oc;,c,i.ng in t:1-= grLeJocf s d~p8.C't:n::nc to
suggest that the griel/oe's d?-clsion to teansf~r' O.? ill tile circumstances he
did was acceptaole and appeol/ed or condoned Of tne Hospic'l.L.
?'
,0
~~th~r, tQ~ed is a su~estiQl in the ~videnca of Me. Rooeets that the
grievoe .as not accustoilled to attendin:?; Hospical in-s~Ni~~ peogramrnes foe
'f.-raf technologists. 8-ivan that the gelcHor has .or",d Vl e,~laCiv,
isolation on the nighc shift ovee en; pr:~vious tan y,=ae,s, \'1e can onll
sp:~ctllai;= th~t he had Losi; tou'~~ wiCh current sta'1daeds of care and uSllal
peocedue,es in h,andling CeaU1l3. "L,~t i'n:3 sucrl as O.? i:l cne X:-ray Dep,3.et,nenc.
In anf ennt, we do not find thac th8 t Ln in~ 0 r i;r],~ i'npos it ion 0 f t.~;
p,en'3.lI:ies on the facts of this cas,~ sonehow consteain.3 the HospLcal from
te;:3,ti:1@; th,e 'llatc.er as culpa()l,~ or chat it C:3,n:1ot cO:1sLdee tnis incid,ent in
conj~ction with t~e 8.;. i:1cid=nt in assessing penalty.
The Association r~feeeed us to a serl~s of cas~s wnLch aetlculaCe C~;
tests to which an employer .ilL be put on aebiteal r~vL=w or the dLs~har5;
of an ernploY'8:~ co;:- nOf'l-")1l1.9abl~ d2Eici..~(l~Y' Ln j00 p:=('fo(":nan.c~: R~ Ejic:"
Cowell P~ivaCe Hbspica~..2'2:f f!s>..'?QiC:3,L 8nolof==S' (hLo:1, LocaL 180, (1932) .5
L.A.C. (jd) 229 (Hop~) at pp.2jj; Re HeaLth ~bou(" Rel:3,Cions Association of
British Colurnbia_ (')3.'2':!-!.:~.2",i1:3.'!...tloS,)~_~:..L:~'2L~,?~,?_I;("ll:~tLon '" GeneeaL 'iloeo<:ees'
Union, GOC:3,L 502, (1939) .5 G.A.C. (4th) 119 )lcPhiLLLps) at p.12:5-121; Re
western Maeind Gt<1. and rearnst.=t"3 Unlon, [..OC3.l 551, (1933) 12 G. A.C. (3d)
250 (Albertini); Re North '{or,^- G=neeaL c!ospical and C.O.?~. , (1913) :5
L.A.C. (2d) 45 (Shiill~) ac p.40-49; Re 3elCish Columbia Hydeo :3,r1d OffLce a:1d
Technlcal P.Jnplofees' Onion, l~o::al 513, (1934) '14 L.A.C. (3d) 59 (Ma:::Inc/re)
at p.77; Re McK2LLar '}en~e?.U:io'2.il;aL 3/1d_C.U.p.~., (1;1.36) 24 L.A.C. (3d) 69
(Joyce) at p.1j-14.
In tile inst:3,r1t cas~, th~ Emplo/,ee dLJ not treat C~~ geie'Joe's conduct
as non-culpable, nor.as the penalty of discharge i1npo,sed in conscquenc~ of
any of the inc idents put b~foe~ us for r~vie.. :}=neeallf Cnese cases ,haL
21
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patient, chis erroe ought not to be teeaced as culpaole oe suoject to
discipline. In suppoet of its pO?itlon, th~ Association e~feeeed us to the
cases Re Sudouey-ilide Co.1lJm.l11L.::aGi.oB and U.S.W., (1333),33 L.A.C. (3d) .;!.23
(franks), a~d Re Boaed of School Trustees Di.sCri.ct No.. 57 (Prince Geoe~e)
and United Brotheehood of Caepencees & Jolnees, Lo~al 2105, (1933) 54 G.A.C.
(3d) 223 (DoeS2Y). In the Sudouey-'w_id,e ~~IJJlicati.o'ls case, the ooaed of
arbLceaGion found that the geieJoe, an opeeatoe .ho nonltored se~u~ity
alarms, follow.ed a standaed t"Llle for distlnguishi'lg false fC'o.u eeal alae,us,
although it turned out that ~11~ alaem .as ee~l. Tne boaed concluded that
despit,e the outco.n?, thee.e .as no. culpable miSC0nduct oe neglig,enGe on th?
pare of the grievoe.
In the Prince Geoege School Boaed case, the grieJor .as discipli'led for
two accidents he had within two days of each othee caused by bac~ing hls
truck into. a school OJ.eei1ang and inco. "1~ upeight Gern,enC cul'lert.
Subsequently, the .nieeoes on the t~uc~s weee ch&~ed to impeo'le visibility
and the culveet was mOJed. [n the past, the employer had imposed discipline
only for culpaole misconduct and not foe the OGcueeen~e of da.uage to
propeety. Even where fault oe caeelessness .as adnLtted, the boaed fO~1d
that tne employee had normally issued a J.eroal admonition to pay Glosee
attencLo'l. A.t. p.255, r'1r. Dot'sey cOrlHlents:
DeiJees rnust continually exercise judge~nt responding
to the cas" at h~d, the eMieoruent, .eath'ee
conditions, chaea~teristics of the vehlcle and so forth.
rher-e do O:~CL1(" L!'1 chis O.')cllpal;Lon, as in mas!:;,
rnisadJe'ltuees that eesult fro<n eeeoes of jud:;e'u.ent that
ace non-cuLpa,);.e an.d de no.t anount to neglig.e!lc.e ...
Judge,ni'!ht inhee,ently has the eisk of erroe ..hich is not
cae,eLe'5S, negligent oe otheNise culpaole and '.hich can
eesult in rnisadventuee that may sometimes have seeious
~Or1S~::qL1..;l1C':::3. 'J/h~n such (~("C"OCd o~(;uc, t;h.e .fa~t; of tho::
conse~uence do~s not in itself giJe cause for
Z;)
discipLLn~ unless th~ea is a cleaely establLsned
employer rula to that effect.
This Board do:~s not disagr~~'..rith theS? stat:~mants in peinciple, out
finds that tha [acts of the incid8nt o[ Octobee 2nd, 1939 ace
distL~guishable as cuLpaole misconduct. In fact, the standard peoceduee
WhiCh the gri8vor ought to haife ~nown feQu basic training and ought to haife
followed given th~ nuesa's ad'lic,~, was to aifoU fu;:othae ,UOifa,lEnt to pat Lent
D.? because of the medical eis.<s assoclated ..rlth movarn=nt of a f8,noeal
feaccure. Thus, th~ natue~ o[ the eeeoe bf the grievor .as culpaole and
distinguishaol8 frolu the soet adde~ssed in th.; cas,;s e,;Lied upon of the
Assoclation. [ndeed, Me. Harnden eeferead us to th.~ cases St. ,'lacy's
Hospital and G.D.S.W.G. (Borshell geievance), dated Maf 21, 19.36,
unrepoeted, (Devlin) a~d Otta.;a Gan~ral Hospital a~d O.P.S.E.U., (MOhd Za&L
grieifance) , dated FeOrll3.ef 1:5, 193,:3, uneepoet~d, (Devlin), in ""hich .,eroes
in judgement .ere found to o.~ culpable and subject to di,scipLLne. -
The Board thceeroe~ remains of the Vi8. chat the grlevor's conduct on
the eifening of Oct~)er 2nd, 1939 in ceansfeeeing pacient D.? back and forth
feom the X-ray stretcher to th~ X-eaf table foe t.o sets of X-cays at 5:00
p.m. and 7:00 p.m. vias culpable &~d affoeded to the Hospital grounds for
discipline. fuethermore, the Board concludes that glifen the peioe incLde~t
of Septemoee 23th &~d the v~eoal warnings eeceived Of the geieifoe in July,
19:39 conc,erning his bedside lUannee .ith p8.i:i~nts, 9.t'ld given the seeiousness
of the nature of tne grieifor's mlscondw)t on Occooer 2nd, 1333, the Hospit8.l
was not 8.cting unreasonably in imposing a one-daf suspension upon th.;
grievor as a incatl:3 or ilnpC'~5SLr1g upon hiln the gca'lU::r wi.th ,.,hieh ch-=
30
Hospltal viewed his ,:;ondLlct. ThLlS the geie'I9..'1:.:e in nsp~:.:t to t!1is incident
both as to cause foe disciplin.e and quantum of discipLLne is denied.
4. Incident 'illth patient C.S. on OctoOer 10, 1939
On Octob,ec 15th, 1939, an eighi:<een y,ea~ oU 'aale, ..ho ls a peofessional
hoc"ey player, '.as admitted theoLlgh the Ea,eegency Department pees.ent ing with
injLlries to his right shoLlldee and right eloo.. The ee.::;oed of teeae,aent
indi,:;ates that X-rays weee eeqLlLsitio.~ed of 'these areas. The geievoe
cadiogeaphed the patient's right eloo. a'ld left shoulder. The geievor
maeked the X-ray of the left shoLlldee as being the eight shoLlldee. rhe
letter of discipline in respe.::;t to this inCident eeads as follows:
The HospLi;al h3.s cQ;npl,eted Lts Ln'I,~stL$ation of the
incident which 00cueeed on Octobee 15, 1939 involving a -
patient, Me. C.S.
You weee to x-cay the right shoLlldeea~d eloo. of this
oatient. Ho.avee, YOLl peo,:;eeded to taKe radiographs of
his left ,side and ta:en place the in,:;oeeect anato:ni.~al
,naekees on the film. rhese are seriouS eeeors .hlch eun
,:;onteary to basi:.: ~-cay te,:;hnoiogy pelnciples.
On July :5, 1'939 you e'ec.eiI8d a v,aebal waming relating
to youe conduct towards Hospical patients a'1d on OctOber
10th a wrLtten .aening. You also eeceived on October
10th, a one day sLlspension for faillng to follow oasic
x-ray technology peinciples.
[n viaw of this most eec:ent incident, a discipLLnaey
a,:;tion of a thee,e day suspenslon on Octooee 50, 31, and
NOvembec 7 is issued.
Should any further in,:;idencs arise in the fLlture,
strongee disciplLnary a.::;tion will be ta~en.
(Letter e;:puegat'ed as co patient's full na,ne
to protect confidentiality)
51
when Mrs. Galla~hee i~vestLgated the matter .ith tne grievor, she as~ed
hlm to write down his veesion of ~vents, whLch he did o~ Occobee 25ed. His
~esponse is as follows:
On Oct. 15, 1339 a patient C.S. c~~e LnCo ou~
Department foe a X-~ay of his ~ighC elbO. and right
shoulder.
.tlhen the pat ie~C C3.n,~ L~Co th,~ roo,n [ as,\>ed him to place
his sore elbow on the X-ray plate. He put his righc
elbOw on the plaCe &~d I proceeded to X-cay it.
[ th,~n as'l:ed hi,n .hich shouldee was soee and he said it
W"~s his eLght shoul,l~e. [Chen p~o:;,e~ded to put the
right shouldee maeo:,ee o~ tn,~ film and s'~c up the X-ray
,nachi~e foe the peopee e~posuee. [chen aso:ed him to
put his soee snouldee on the X-raf plate. [then aSKed
him to turn his shouldee inteenally and then centeeed
the light ov.ee Ch2 should.ee h2 had given rne. [tooo: 3
l-rays of his Shouldee in different oositions. EaCh
tLne I ;{-eaf2d hlm he gave me hLs L:ft snouldee foe
posltioning and finally X-raying.
COOking oac,," [ can not Ur1d,~esCand .hy the patient gave
me his left shouldee to X-ray and saying nothing to ,ne
about X-eaying the W"~ong shouldee on theee diffeeent
occasions.
After developin~ the films [ Ch2C:.ced to se.e if t~'1e
eequisitlon eequest macched the films [ had ta'l:en. The
"R." mark.ers on C:18 film coeeespond.ed to the re'lllest on
the requisLtion foe a right elbow and right shouldee.
Th2 ne~t moening you phoned ,ne and stated that there was
a ~ix-up on Chis case. [cane into the Hospital eight
away on lny day off to sceaighten out the matter. The
requisitlon as~ed roc a right aloow and eighc shoulder.
The films indicated I dld a right aloo. and eight
shoulder. So,n,~one had pici(ed IIp a haart shado. on on2
of the rlght shoulder films indicating the left shouldee
was x-rayed instead of the eLght snoulde~.
I phoned the patient's coac~ and he seated that he
couldn't rernembee '.hich shoulder was so~e. ne tnought
C.S. was having teouble with botn shouldars.
I then phoned C.S. 's eoo.ning hOuse and his landlady
couldn't recall whi:;h shouldee .as soe,e but she W"ould
52
call C.S. at s~hool sad find out. When I called her
ba~k she infoe,ned me Lt .as hLs eLght shouldee and that
he was golng to Dr. Jltten's offLce cnat afternoon to
gel: it ch,'~i<.ej Qll\;.
I phon,ed Dc. Jitcens' office and informed him of the
;nLSCaKe. Dc. Jitt,,~ns said Chat Lf th,e shoulder had to
be X-~ayed it would oe done at his clLni~.
I phoned latee to confiem that C.S. did have his right
shoulder X-~ayed ~t the Smyth Rd. clinic.
Thac aftet"noon I pnon.ed ttH RLveesLde Hospital and spoi{e
to Norill. I as"ed him to put a note Lnto the X-eaf fil,e
of C.S. whi~h you had left out foe him. Tne noce
stated that the left shoulder .as incoeeectly X-rayed
and that che patlent had gone to Or. Gittens office and
if need be th,e right shouldee .O'lU 0e X-eafed at his
clinL~.
Conclusion: To this day I can not understand why the
patient gave me the wrong shouldee to X-ray. '''hf, aftee
positLoning the left should tnree tLm,es, cenl;eeLng the
posLtionil1g light ovee the left shouldee three ti,nes,
a~d having the patient; internally ~otate his left
shoulder c.Lce the [)atient; didn't say anfthing about me
X-eaying the uninjlleed shoulder. This is the first tlone
in approximately ten yeaes at the Riveeside thac it has
happened to me and [ nope it '.ill oa the last.
C'.\e:no expuegat;ed as to pat Lent's name
to peotect confidentlalLty)
The eeroe ~ame to light .hen a Phfsician reviewing the radiographs
noticed a heart-shadow which .ould i~dLcate that it was not the eight
shoulder as indLcated Of the arlatonL~al lIlar~er, but the left shoulder. Mt's.
Gall~~er testified that if a eadiation technolo~Lst is faced with a
discrepancy between the eequisition and the p~esenting proolem as desceibed
Of the patient, the technologLst should fiest make enquiries of the
Emergency Department physiclan to claeify the eequest .hila the patient is
present befoee X-rays are taKen. If such cLaeificatLon cannot be oocained,
Mrs. Gallaghet' testifLed that the radiologist Should X-ray the pact ordet'ed
33
in the requisil;ion and the area of con;:;~m and then fla,s th~ radiog~aphs
with a note to h8e actention conceening the discrepancy. The X-rays taken
should be revie.ed by the technologist oefore the pacient lea~2s. This
tescLnony is substantially in accordance wieh tne Hospital policy conceming
veeification of X-~ay requests:
X-RAt' R8QUESTS
?Jl.LCi
rhe tecnnologisc is responsible for ensueing
that the aeea eequested to oe X-Rayed is
eelat,2d to th2 hiscory and the atlatoni';al
sid,e.
If Chare is a disceepancy, tn2 technologisc
will chaclC wlth a Radiologisc oe cne ffinaegancf
physlcian.
If no one ls avaiLaole to ;:;larify the
anatomical area, ie: weise instead of hand
X-Ray the part oedered, plus the aeea of
conC2cn.
rhe teChnologist is eesponsloLe for doubLe-
chec~ing eequisitions to ensure Chat the
infoemacion is coeeect and all anatonical
aeeas to 02 X-Rayed ace included. Anf
discrepancies are to oe ~eturned to the front
office foe coeeection.
Mes. Gallagner indicated thac this policy was ln effecc throughoue the
relevant tiffie period and was reviewed, DUe not re~ised, in December, 1939.
The Association conceded that the conduct of the grievor was culpable
ln respect to thls incident out contends that a tht"ee day suspension on
Octooer 30, 31, and November 7th was excesslve. Tht"ough cross-examination
of Mrs. Gallagher, it is apparent that ereors such as this do occ~ with
some regularity by X-ray technologists working on the day shift. If the
error is not piCKed up and coreected by the technologist, lt is usuallf
dlscoveeed d~ing the shift oy ~rs. Gallaghee, whose ~esponsioilities
54
include the quality assurance of radiographs t&~en each shift. Geneeally
speaking, the error is brought to the attention of the technologist by ~rs.
Gallagher and some counselling occu("s concerning the peoper procedure of
verifylng requlsltlons and the accUt"acy of Che anatomical markers on the
films talCen. This veebal counselling ls then confiemed L'1 writing.
Naturally, if no further incident occurs, no further disciplinary action is
taken. Mrs. Gallaghee dld not KnOW of an7 oCher radiation teChnologist who
had received a suspension for X-raying an lncoreect bod7 part. Tne only
other incident that came to light with eespect to the grievor X-raying an
lncorrect oody part was the x-ray of the incorrect hip which occurred on
January 21, 19:37. On that occasion, no disciplinary action was talCen other
than a counselling letter. The only reason we allude to thls lncident is
tnat the grievor suggests L~ hls wrltten response dated October 23rd that
this is the first time he has committed such an erroe ln ten years.
The evidence sho.s that the grlevor gave his full cooperatlon-to
co~rectlng this error as soon as he .as made a'.are of it. In fact, the
patient saw the sports medlcine specialist, Dr. Gittens, the next" day and
had his right shoulde~ X-rayed at that clinic. Thus, the grievor's eeroes
entailed no serious medlcal consequence for the patient.
The grievor has been worKlng in relative isolation fo~ some time on the
night shift and ooviously was not keeping current with the policies and
standa~ds expected. That the Hospital was of the same view is confirmed oy
the action taken subsequent17 of placing the grievoe on tile day shifc
commencing his next see of Shifts after the suspension on November OCh. He
was eequired to review the policy and procedures manual, the safety manual
and to Submit his films foe review by Mrs. Gallagner each day for tne
35
following six weeKS. During this time frame, Mrs. Gallagher put ce~tain
performance goals ih writing for the g~ievor whicn are as follows:
to i~prove communication sKllls with pacients,
staff and supervisor
to improve ~owledge of policies and procedures
withln the Department of Diagnostic I~aging
to impeove ~o.ledge of safety standards wlthin the
Department
to eeview patient care as per the Department
policies and the cole of the technologist
In lignt of the short time feame that elapsed bet.een the incidents,
the Hospital ooviously bec&~e alarmed as to the reliability of the grievo~'s
work. rhe Hospltal apparently tOOK a s~newhat mechanical view thac since
the g~levo~ had already received a one day suspension, the next step should
be the imposition of a three day suspension.
rlowever, given that this soet of error is of relatively com~on
occurrence and is gene~ally teeated with greater lenlence, and glven the
long seevice of the grievor who had been left to wor~ In relative isolation
on the night shift, the Board ls of the view that a more just and equltable
response to thls incident .ould have been the imposition of a one-day
suspension, in the context of the p~ior record.
The grievance on this matter is accordingly allowed in part through
substitution of a one day suspension on Octooer 30th. The grievoe is
accordingly entitled to be compensated for his losses occasioned on Octooee
31 and November " 1939.
~
5. Call-BacK Pay Claimed for Octooer 27, 1989 DisciplinarV Meeting
Mrs. Gallagher testified that she spolCe to the grlevor before he left
for Corn~all on October 25th to arrange the dlsciplinary meeting in respeGt
to the incident with patient C.S.. The g~ievoe indicated that he agreed to
come in the next day at 11:00 a.m., although thls '.as to be a day of rest
for hlm. This agreement is indicated oy the grievor's note on the ~eeting
notice filed as Exhibit #30. Mes. Gallagher indicated that the meetlng
could have been arranged at another time more convenient to the grie'Jor.
Thus the meeting occurred at a time which was not at the sole behest of the
employe~, but was mutually arranged.
In any event, our reasoning on this issue concerning the language and
p~oper application of Article 22.05 as outlined ln eespect to the claim for
October 4th, applies to thls claim as well. The griev&'1ce in respect to
call-back pay for the disciplinary meeting on Octobe~ 27th is dismissed
accordingly.
~
o. Incident of January 11, 1990 Concernin2; Patient O.K.
rhe grounds for discipline are set forth in the disciplinary letter
dated Feb~uacy 3, 1990:
I am writing to confirm our meeting held on thls date at
1300 hours to discuss an incidenc occuering on January
11, 1990 regarding a patient Ms. D.K..
The Hospltal's lnvescigation of this lncident has
revealed that you x-rayed the sore shoulder (right-side
shoulder) of a patient named Ms. D.K. and marked the
37
film anatomically correct. Aftee Ms. K. had left, you
changed the marker on the film to indicate that the
left-side shoulder had been x-rayed in ordec to
coreespond with the requisicion, which had incor~ectly
called for an x-ray of the left-side shoulder. It is a
clear policy of the department and a basic SKill of x-
ray technology training, that x-~ay technologists must
verlfy information peovided on the requisltions with
each patlent'before beginnlng their x-ray and to take
the app~opriate action lf there is a discrepancy. You
failed to complete such verification. rhis verification
must be completad in ordee to ensure that the
informatlon on the requisition is correct and to ensure
the safety of the patient. In additlon, you compounded
the erroe by changing the initial correct marKer (right-
side shoulder) to the incorrect marKee (left-Side
shoulder), not realizing whlch shoulder had in fact been
x-rayed. These actions are totally unacceptable.
On July 5, 1983 you ~eceived a verbal waening relatlng
to yoUt" conduct towards patients and your level of
professionalism, and on Octooer 10, 1989 a written
warning. On October 10, 19:39 you were also given a one
day suspension foe moving a patlent with an obvious
fractUt"ed femUt" - an action cunning cont~ary to basic
x-ray technology principles and in oreach of your
professional responsibilities and standards. On October
27, 1939 you recelved a three day suspension for taking
~adiographs of the wrong side Shoulder and elow of a
patient and then placing the incoerect anatomlcal
marKer on the film. These are serlous eeroes whlch run
contrary to basic x-ray technology peinciples.
In vlew of the most recent incident, a disciplinary
actlon of a three day suspension on February 12, 13 and
14, 1930 will be issued. Should any fQether incidents
arise in the future, stronger disciplinary action will
be taken.
(Letter expurgated as to full name of patient
to protect patient confidentiality)
Mrs. Gallagner aSlCed the grievoe to write hee a memorandum setting
forth his version of events and any explanation. Thls memo was filed before
us:
30
On January 11, 1990 D.K. was brought to the x-ray
depaetmenc on a steatcher along with an x-ray
requisition that indicated that a left shoulder was
inju~ed and that a left shoulder should be x-~ayed.
When I x-rayed the patient I x-rayed the injured
shoulde~ which happened to be the right shoulder and I
placed a "right" marKee on my film. In sent the patient
baclC to emeegency and the doc toe came over to read the
films. '
~t the end of my shift I .ent over my films of that
evening and noticed that this paeticular ~equisition had
aSKed fo~ a left shoulder to oe x-rayed and I had a
right marker on my film indicating I had x-rayed the
right shoulder. Since the patient had left and the
doctor had gone home [ did not have a chance to cheCK it
out .ith them. I ass~ned that I had made a mlstake with
my marKee and changed it to colncida with the
requisition which had the left shoulder balng injured.
The raquisition had this er~oneous infornation on it
three times. [t is attached.
Eight days later I ~eceived your let tee lnfoemlng me
that there is some questions about the anatomical
martcers on the film.
'while looKing at D. K. 's x-rays I noticed that she was
again x-eayed today and that hee eight shouldee was the
one injured. [have compared the x-rays taKen today
.ith the onas I tOOK eight days ago and they are
identical. [had indeed x-rayed the right injueed
shoulde~ eight days ago. ,[ should have stUctc to my
martcer and not changed it ,to coincide ,wlth the mlstakes
made ln the emergency department by Dr. Watt and the
admittlng secretary.
Had the casualty officer or the admittlng secretary not
made a mistalCe ln ma~klng the left shouldee on the
~equlsition my original anatomical martcer would have
remained untouched.
I quite often find requisitions that coma from emergency
with mistakes on them. [usually cor~ect them. '
(l'1emo expUt"gated as to patient's na.rna
to protect confidentiallty)
3)
This incident occurred wnlle the grievoe's films were still being
reviewed on the day shift by M~s. Gallaghe~ followlng the night shift worked
by the grievor. Only one month before, the gelevor had completed a stint of
approximately slx weelCS of worlClng undee closer supervision on the day
shift and with performance expectations clearly set and communlcated to hlm.
The grievor had been required to review the policy and procedure manual and
the safety manual. FUt"theemoee, this incident is similae to that <liCh
respect to the patient C.S. and lnvolves a oreach of the policy on
ve~ification of X-ray requisitions.
Undoubtedly the errors made in the &nergency Departmenc on the
requisition in this case would have been detected by the grievor if he had
clarified the discrepancy between the patient's complaint and the
requisition when the patient was present and before the X-rays weee taKen.
Once the radiographs .ere taKen, the grlevoe would have detected the problem
if he had checked the radiog~aph while the pat lent was still peesen~, rather
than dolng so ac the end of the shift. In any event, the grie'lOe should
have Known tnat it was incorrect to change the anatomical marker at the end
of shift when the doc toe and patient had bocn left.
In llght of the grievor's previous record, the steps talCen by the
Hospital after the incident with patient C.S. to impeove the grievor's
familiarity with performance expectations, and given the short lapse of time
between the C.S. and D.K. incidents, which we find to be of a similar
nature, we conclude that the Hospital was not acting unreasonably in
imposlng a suspension of three days. Accordingly, the grievance in respect
to this incident is denied.
40
Dated at Kingston, Jntaeio on the
'l.OrT\.l- day of August, 1991.
~:
.J C.?::_j-----.J
Elnrich
Chair
'D I~<:'/=^\"\' A-PP~l1J Dt'lr'\'\
Robert Redford Hospital Nominee
~ /{ ~- -'
Peter Seguin Ass icn Nominee
41
"
, ,
PARTIAL DISSENTING OPINION OF P.R. SEGUIN
IN THE MATTER OF AN ARBITRATION HEARING
BETWEEN THE RIVERSIDE HOSPITAL OF OTTAWA
AND THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS OF ONTARIO
RE GRIEVANCES OF SID BILLSMAN
---------------------------------------------------
------------------------------------------------------
After reviewing the entirety of the award, I find that ! must
partially dissent with respect to the Board's decision concerning
the two grievances regarding Article 22.0p - Call-Back.
On two separate occasions the Grievor was required by the
hospital to attend a meeting to review the method and results of
his work. Both of these meetings occurred "outside his regularly
scheduled hours".
The Board has arrived at the'conclusion that the Grievor's
attendance at these meetings does not constitute a Call-Back. In
reviewing the evidence and argument, it was clearly determined that
these two situations fell within the normally accepted principles
of "inconvenience" and "an extra trip to and from work".
However, the Board examined the language of Clause of 22.05
and concluded that these meetings did not fall within the normally
accepted definition of "work".
In addition, the Board reviewed
these situations in the context of the Collective Agreement
language and arrived at the conclusion that the lack of express
Page two (2)
language qualifying these "investigative and review" meetings as
a Call-Back, should then necessarily disqualify them from such
consideration.
It is both of these conclusions that I cannot accept.
Authors Earl Edward Palmer and Bruce Murdoch Palmer, in their
third edition of "Collective Agreement' Arbitration in Canada"
review the jurisprudence on the issue of "work which qualifies for
Call-Back Pay" at page 631 of their text. They have concluded as
follows: "It has also been held that in order to qualify for Call-
Back Pay, it is not necessary that the employee actually work after
reporting; however, it may be necessary that an order to wo~k be
given. Similarly, the type of work done does not affect payment.
Thus, persons may be recalled for overtime work or for special
work, such as participation in a mock disaster by the
hospital/employer, and validly demand such pay. However, it must
be kept in mind that the rational for Call-Back pay is "work". And
consequently Call-Backs that are not directly related to work may
not be compensable under these clauses."
Page three (3)
In keeping with these principles, the Grievor in this case was
clearly "called-in" to the workplace to deal with issues concerning
the methods which he employed in obtaining x-rays. In addition,
the hospital had concerns regarding the quality and correctness of
some of the x-rays which the Grievor produced.
There is absolutely no doubt that these Call-Back situations
resulted from matters which were "directly related to work". As
such, any conclusion that these situations did not meet the
specific requirements of Clause 22.05 of the instant Collective
Agreement can only be concluded to be unreasonable.
This is further supported by a review of the generally
accepted principles of labour relations as they apply to the
"investigation and processing of grievances". It has lO!1g been
accepted that any meetings called by the parties to deal with
matters of discipline fall within the definition of "work". The
instant Collective Agreement clearly establishes that the parties
recognize labour relations meetings between them as constituting
"work".
The hospital decided that they could not wait for the
Grievor's next scheduled day of work to deal with their concerns,
and made a proper management decision to request the Grievor to
attend meetings in the workplace.
Page four (4)
In my view, the Board's conclusion that the Call-Back premium
is inapplicable, is contrary to the express language of the
Collective Agreement, and the recent jurisprudence concerning the
"directly related work", which qualifies for Call-Back. I would,
therefore, have allowed both of the Grievor's requests for .Call-
Back Pay.
&- /(' ~"
Peter R. Seguin
August 20, 1991
,,'
PARTIAL DISSENTING OPINION
OF R. W. REDFORD
IN THE MATTER OF AN ARBITRATION
BETWEEN RIVERSIDE HOSPITAL OF OTTAWA
AND AAHPO - GRIEVANCE OF BILLSMAN
Having had an opportunity to review the award, I find that I must
.,
partially dissent. The portion of the award that I cannot acc~pt
is the portion dealing with the second suspension for having
X-rayed the wrong shoulder. The incident occurred October 16,
1989 just a few days after the grievor had served a one day
suspension for a similar offense.
The first issue is the criteria that a Boaed of Arbitration
should apply in changing a penalty. In supporti,ng the first one
day suspension which the Hospital had app l j,,,,d relative to the
October 2nd incident, the Board concludes that the Hospital's
penalty was "not unreasonable".. This suggests that the stanaard
which is being applied is one which would allow a latitude of
reasonableness and was not simply a reassessment and the
application of the Board I s judgement over t.'nat of the Hospital. I
can agree with this standard.
However, in the second application of discipline, in my
submission, the test was narrowed and the Chairperson has simply
imposed her own conclusion over that of the Hospital without
having established it to be "unreasonable". Indeed the
chairperson agrees'that discipline was \']<l1.Tar,ted, but differs
-2-
only slightly from the Hospital in the quantum that should be
applied. Even the type of discipline appropriate to the October
16th incident is not at issue. Both the Hospital and the
chairperson agree a suspension is warranted. The only difference
is the chairperson's assessment of the number of days which
should apply versus that of the Hospital. Where the differenc~s
are so narrow and where it has not been found that the Hospital's
action was "unreasonable", it would have been my view that the
discipline should have stood.
What the chairperson has done is impose her own assessment on the
Hospital's and second guessed the matter. This is not, or should
not be the standard applied through arbitration. Where a penalty
is deemed to be "unreasonable" in all of the circumstances, It
should be changed, but the arbitration process should not be used
as an "armchair quarterback" to impose their "superior"
interpretation.
On the facts, I also dis~gree with the c0DclusloD of the
chairperson on this issue. The mistake that was made on October
16th was a second mistake similar to the one which had just been
investigated and where discipline had been applied. It was a
failure to follow accepted procedure in un area where he knew or
should have known how to proceed. While his actions after being
told of the error were different than the October 2nd incident,
-3-
it remains that he did not follow procedure in a very critical
area for the second time in less than three weeks.
Surely it is not "unreasonable" for the Hospital to impose
progressive discipline. The infraction was similar and the
timeframe was frighteningly short. Three days, after a one day
suspension was not "unreasonable". Therefore, I would have found
that the Hospital's actions were well within the bounds of
reasonableness, and would not have felt it appropriate to
reassess the penalty.
In my view, the Board should not interfere with a decision on
discipline unless the employer's position was clearly
unreasonable. In this case, the employer's position was not
unreasonable, given the facts of the October 16th incident.
I would have dismissed this grievance and t:l1e Hospital's three
day suspension would have stood.
1(?(iiK(
-
R. W. Redford
June 13, 1991
,.
ADDElIDOM 1'0 AWARD
I have had an opportunlty to review the partial dissent of Mr. Seguin
on the issue of the geievoe's claims to call-back premlum pursuant to
~ticle 22.05. At p.2, he makes eeference to an excerpt at p.531 of the
text Collective Agreement ~oitration in Canada, 3rd edition, oy th~ authors
Earl Ed'.ard Palmer and Bruce .'1U("doch Palmer, to the effect that "the type of
wor~ done does not affect payment. Thus, persons may oe recalled for
overtime WO~K or foe special work, such as paeticipation in a mock dlsastee
by the hospital/employer, and validly demand such pay. However it must be
kept in mind that the rationale for call-baCK pay is "work'! and consequently
call-oaCKS that are not dieectly related to worlC may not be compensable
under these clauses".
Indeed, I would subscribe to the principles artlculated oy the authoes,
and would not have hesltated to allow the g~levor's claims to call-baCK if
he had been summoned by the Hospital to participate in a mock disaster, or
to attend an In-service educational meeting, or to pee form some other
ove~time duties that are not regularly scheduled. However, the eeason the
grievor .as required to commute co the wor~place was to attend meetings at
which allegations of misconduct against hlm were being investigated and from
which discipline could and did ensue. Had the grievor noc engaged in
misconduct, tne Hospital would not have eequLeed any such meetings to
lnvestigate the allegations. Thus, in the absence of language clearly
entitling the grlevor to the peemium, the majority has concluded that the
call-baclC premlum oughc not to attacn to attendance at such meetings. The
'C
majority reasons that the extea cost of the peemium payment should not be
visited upon the Hospital where the ciecumstances giving rise to the need
for the meeting are instigated oy miscondLlct of the grievor rather than by
the worK-related requi~ements of the Hospital.
~
.
E. Emrlch
E'-E~