TOO EARLY TO TELL

(An Update of the Sentosa 27+ Nurses’ File)
by Felix Q. Vinluan, Esq.

“So, which side has won?  Have the nurses really lost?  I thought they had already won.  Now, I heard Sentosa is throwing a victory party.  Have we seen the end to this protracted legal battle between the nurses and their former employers?”

Background

Almost three and a half years ago, the advocacy by several former Sentosa nurses, now known as the Sentosa 27++, to expose the fraud and misrepresentation in the immigration process that they believed resulted in the discrimination and abuse of immigrant Filipino nurses began.

The nurses filed the first salvo of complaints against Sentosa Enterprise before the Office of Special Counsel for Immigration Related Unfair Immigration Practices.  A few days later, Sentosa filed breach of contract cases against the nurses before the New York Supreme Court in Nassau County.  It also filed administrative complaints against the nurses before the NYSED-Office of Professional Discipline, charging the nurses with patient abandonment.

The nurses countersued the Sentosa-affiliated nursing home facilities for breach of contract.  They alleged the facilities were the ones that actually breached their contracts by not providing them any employment.  They contended they were made agency nurses of Prompt Nursing Employment Agency, doing business as Sentosa Services.  Prompt/Sentosa Services is an entity distinct and separate from any of the contracting nursing home facilities.

Almost a year later, ten of these nurses were indicted by the Suffolk County District Attorney’s Office for allegedly endangering the welfare of their patients.  Newsday reported it was after Sentosa’s meeting with the District Attorney that the criminal investigations against the nurses were opened.

Two Major Decisions

Two major decisions have so far been issued in the year 2009.  The first decision, issued in January, was won by the nurses.  Criminal prosecution of the nurses was prohibited.  The second decision, recently issued in June, spelled victory for Sentosa.  It dismissed, by summary decision, the nurses’ complaints for discrimination and retaliation.

To date, however, neither side can claim total victory yet.  As in the war against terrorism, some battles are won; some are lost.  The war rages on.

Updates:

Administrative cases:  discrimination and retaliation

Lawyers for the nurses are expected to file an appeal from the decision of the OCAHO Judge dismissing the discrimination and retaliation complaints before the end of this month.  If and when the petition for review is granted by the Second Circuit Court of Appeals, the complaints may be remanded to the OCAHO Judge to proceed to trial.

Administrative cases:  patient abandonment

Back in September 2006, the Office of Professional Discipline closed the administrative complaints against the nurses.  It ruled that, contrary to some published reports and rumors, the nurses did not walk out of their jobs, and did not abandon their patients.

Civil Cases:  breach of contracts and countersuits

After an extensive discovery process, the issues have just been finally joined in the civil cases pending in Nassau County.  All the parties have until September 14, 2009 to file their respective motions for summary judgment.  Trial of the case may start as early as January 2010.  These cases will show which party indeed breached the employment agreements.

Criminal Cases:  endangering the welfare of patients

Following the issuance in January of the writ of prohibition by the Appellate Division, Second Department of the New York Supreme Court, the nurses moved to have their criminal indictments dismissed.  For reasons that cannot be fathomed, the lower court advised nurses’ defense counsel, just two weeks ago, that the motion to dismiss had been granted as early as March of this year.

The nurses have filed a notice of claim against Suffolk County for malicious prosecution and violation of their civil rights.  They are expected to file their formal complaint sometime before the end of this year.  When they do, it is also expected that they would implead Sentosa as well.

Conclusion

As of now, it’s still too early to tell which side will eventually prevail.  These related cases may be litigated for the next several years, as each party may decide to appeal, up to the highest court of the land.

It is crucial therefore that the Filipino-American community and the professional nursing community continue to support the cause of the Sentosa 27++ nurses.

When the dust finally settles, this writer believes that the community will benefit from the struggles and the advocacy begun by these brave nurses.

(N.B.:  The writer is the original lawyer of the Sentosa 27 nurses.  Having been impleaded as party-defendant in the civil and criminal cases, he has consciously avoided commenting on the merits of said cases.  The procedural case histories mentioned in this article are readily-available matters of public record.)