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State clears Filipino nurses of wrongdoing

BY MICHAEL AMON and RIDGELY OCHS | michael.amon@newsday.com; ridgely.ochs@newsday.com

January 18, 2008

As many cheered a state inquiry clearing 10 Filipino nurses of placing Smithtown nursing home residents in jeopardy, a Suffolk County prosecutor said he would fight to keep the finding out of court when the nurses face trial on charges of endangering patients.

Assistant District Attorney Leonard Lato said the Health Department's review, along with a State Education Department investigation finding that the nurses did nothing wrong when they resigned en masse in April 2006, were not thorough and should not be admissible as evidence.

"It would usurp the function of the jury," Lato said. "That will be a point of contention. The defense attorneys will say 'yes, it is admissible.' I will say 'no, it's not.'"

Legal observers said the state agencies' rulings would be powerful evidence for the nurses, who, along with a labor attorney who advised them, face charges of conspiracy and endangering the welfare of patients in a pediatric ventilation unit at Avalon Gardens Rehabilitation and Health Care Center.

Defense attorneys said they would ask State Supreme Court Justice Robert Doyle to rule on it before trial.

"These agencies did not have to prove a case against the nurses beyond a reasonable doubt and they still cleared them," said Oscar Michelen, a Mineola attorney for the nurses' labor attorney, Felix Vinluan.

Legal experts disagreed about the admissibility of the state agencies' conclusions. Robert Gottlieb, a Commack defense attorney, said the findings probably will not be admissible but added defense attorneys could call state investigators as witnesses.

Stephen Scaring, a Garden City defense attorney, said there may be "technical" legal reasons to suppress the agencies' findings, but "this case really is going nowhere. I'm surprised that, given those findings, the district attorney doesn't just dismiss the charges."

The trial, scheduled for Jan. 28, will likely be postponed, attorneys said, because Doyle has a homicide trial scheduled for that week.

Meanwhile, Filipino-American advocacy groups stepped up efforts asking Gov. Eliot Spitzer to appoint a special prosecutor to replace Suffolk County District Attorney Thomas Spota. About 300 Filipino-Americans, nurses and other supporters have sent letters to Spitzer.

Spota has been criticized for meeting privately with the nursing home's owners and administrator to hear a pitch for charging the nurses. The May 2006 meeting was arranged by the nursing home's attorney, Howard Fensterman, a Democratic Party fundraiser who gave Spota's re-election campaign $1,500.

Spitzer spokesman Jordan Isenstadt said the special prosecutor request was under review. "A decision will be forthcoming," he said.

Spota has said the contribution played no role in the investigation and has noted that a grand jury indicted the nurses after hearing evidence.

The health department's inquiry resonated in New York and Manila. Cecilia B. Rebong, the Philippines consul general to the United Nations, said the finding "validated what our nurses and all of us have been saying all along."

Said Ma Theresa Ramos, one of the indicted nurses: "What's the use going through trial if the health department said there was no danger and the education department cleared us?"