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CA: OR nurse's asthma results from Bovie smoke: hospital refuses to pay workers' comp. claim. (Hospital Law Decisions of Note).

CASE FACTS: California Pacific Medical Center hired Marjory Siegel as a surgical nurse at its west campus in March 1992. West campus operating rooms require the use of endoscopes that cannot be sterilized by conventional steam heat methods. Instruments must be rapidly sterilized for reuse. Instruments are sterilized by immersing them in a basin of Cidex, which allows reuse in 20 minutes. A basin of Cidex is kept in all ORs on the west campus. Cidex can cause respiratory problems. Operating rooms on the hospital's east campus are used for procedures not requiring sterilization with Cidex. A "Bovie" (an electrical to instrument used to cut and cauterize tissue to stop small blood vessels from bleeding) is in all operating rooms on both campuses. The smoke emitted is known as Bovie smoke. In August of 1992, Nurse Siegel reported an allergic reaction to Cidex. In April 1993, Dr. Thomas Harrington, a workers compensation physician, placed her on full work status with a permanent restriction not to work with or be exposed to Cidex. In December of 1993, the nurse's treating physician, Dr. Robert Harrison, diagnosed her with asthma. He concluded the asthma had developed as a result of Cidex exposure and reiterated the work restriction regarding Cidex. The hospital assigned Nurse Siegel to ORs in which Cidex was not used. Between December 1993 and August 1997, Nurse Siegel was able to avoid Cidex while working as an OR nurse. On August 1, 1997, Nurse Siegel was exposed to Cidex fumes emanating from a cracked container in an OR. She did not return to work at the hospital. On August 5, she saw Dr. Dennis Shusterman, who released her to work with the restriction that she could work only in a Cidex free and Bovie smoke free environment. Nurses supervisors agreed they could not continue to accommodate Nurse Siegel as an OR nurse. Nurse Siegel brought suit against the hospital under the Fair Employment and Housing Act (FEI-IA) for unlawful employment practices based on physical disability. She alleged the hospital failed to meet its burden of demonstrating reasonable accommodation. San Francisco County Superior Court rendered judgment for the defendant. Siegel appealed.

COURT'S OPINION: The Court of Appeal of California affirmed the judgment of the lower court. The court held, inter alia, that there was sufficient evidence from which the trial court could find that the hospital's efforts to locate a position within the hospital comparable to the nurse's existing position constituted "providing her reasonable accommodation."

Siegel v. California Pacific Medical Center, 2002 WL 1042322 P.2d --CA

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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Article Details
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Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Brief Article
Geographic Code:1U9CA
Date:Jun 1, 2002
Words:543
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