Court: Hospital can fire nurse for patient sex

August 7, 2008 7:40:14 PM PDT
A hospital had the right to fire a male nurse for having consensual sex with a patient less than two days after she underwent heart surgery, a state appeals court ruled Thursday. A three-judge Commonwealth Court panel unanimously overturned an arbitrator's decision to reinstate the nurse.

The woman had double bypass surgery at Temple University on July 13, 2006, and had sex with registered nurse Richard J. Baldwin sometime around 4 a.m. on July 15, according to the opinion.

The matter came to light a few days later, when the woman asked a doctor to determine if the unprotected sex had resulted in any sexually transmitted diseases. Hospital investigators said the patient indicated she was attracted to Baldwin and that the medications she was taking had nothing to do with what happened.

Baldwin, now 44, apparently gave conflicting statements about the encounter to hospital investigators and the arbitrator.

He testified before the arbitrator that he did not have sex with the woman, but investigators said he told them that the woman had come on to him and that he was being fired for having consensual sex.

In a brief phone interview with AP Thursday afternoon, Baldwin said "of course" he did not have sex with the patient.

He called the court's decision "ridiculous" and said he was in the lounge of another hospital, where he currently works, and unable to discuss the matter in the presence of co-workers. He declined to identify his current employer.

Even if it was consensual, Temple hospital officials argued, the sex act was a violation of state nursing standards and hospital policy.

Arbitrator Richard Kashner concluded the hospital's evidence was not sufficient.

"While it is possible that (he) engaged in consensual sexual intercourse with the patient, the hospital has failed to provide clear and convincing evidence that such alleged misconduct occurred," he wrote.

Judge Doris A. Smith-Ribner wrote that Kasher made troubling and serious errors.

"The arbitrator emphasized that he found a contradiction as to who initiated the sexual encounter, which could not be resolved because the patient did not testify," Smith-Ribner wrote. "As the applicable regulations make plain, and as should be immediately obvious, the question of who initiated the encounter has no bearing at all on whether Baldwin violated the regulations."

Jonathan K. Walters, attorney for the Temple University Hospital Nurses' Association, said Thursday the union will have to decide whether to pursue an appeal to the state Supreme Court. He said the Commonwealth Court panel exceeded the scope of its authority.

"They hammered the arbitrator, but you know, they're not the arbitrator," Walters said. "He heard the evidence and he made the decision, and that's supposed to be the standard."

Temple University Hospital lawyer Joe H. Tucker Jr. said the court's ruling vindicated the decision to fire Baldwin. He said the hospital has refused to reinstate Baldwin, even after the union prevailed before the arbitrator and a county judge.

The patient, a divorced library assistant who is now 60, sued Baldwin and the hospital last year for negligence, assault and battery, medical malpractice and other claims. That lawsuit is pending.

"You don't have sex with your patients after they've had open-heart surgery," said her lawyer, Joseph M. Fioravanti.

"That's what this is all about."

In a February deposition in the case, she said her encounter with Baldwin changed her life.

"He didn't force me," she said. "My reaction was, fine, go ahead, not thinking that he would ever do it. So he didn't attack me."

The hospital is fighting the lawsuit, Tucker said.

"We are saying that this was, as the Commonwealth Court strongly implied, a consensual sexual act between these two that does not impose civil liability upon us but does require us to fire Baldwin," he said.

Baldwin's lawyer in the civil case, Michael L. Nix, was not immediately available for comment, his office said.

A hearing by state regulators into whether to revoke Baldwin's nursing license is scheduled for September. His license remains active, according to the Bureau of Professional and Occupational Affairs in Harrisburg.

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