American Association of Foreign Educated Nurses

ANATOMY OF INDICTMENT OF THE FILIPINO NURSES


Looking back on previous statements issued by the persons named below, a more objective determination of the indictment can be seen.

Mr. Lato, the District Attorney in Suffolk County said that the nurses "had every right to quit their jobs, but when you are a nurse or a doctor you owe the patients just a little bit more," he said.

He acknowledged no one was injured as a result of the resignations. But he said that the abrupt resignations set off a four-hour period of "panic and scrambling" as administrators tried to find replacements to cover the shifts of the 10 nurses.

Initially, Mr. Lato said he did not believe the case merited an indictment.

He said that he interviewed Mr. Felix Vinluan and several of the nurses, and "they seemed like hardworking, good people," he said. But "when I went into the nursing facility and I saw the children - I'd never seen children on ventilators - my feelings changed about the case," he added.

After that, Mr. Lato said he decided to leave it up to a grand jury to determine if the mass resignations represented a crime or a labor dispute. He asked the grand jurors to determine whether the nurses had a duty to the patients and whether they "put people in danger" by breaching that duty. They answered in the affirmative.

Simply giving more notice would have avoided charges altogether, he said. "Twenty-four-hour notice would have been more than sufficient - even 9 a.m, that morning," he said. "Whatever the dispute was there was a collateral consequence to what they did."

Both the nurses and Mr. Vinluan filed motions to dismiss. The nurses' attorney, James O. Druker's Kase & Druker, argued that the criminal charges violated the Thirteenth Amendment to the federal Constitution, which prohibits slavery and indentured servitude.

"I never thought that in all my years of practicing law I would use the Thirteenth Amendment to argue a labor dispute," Mr. Druker said. "I have no doubt that even if the nurses resigned in concert, as the D.A. says, that is not a crime, there is no crime here - the obligation to properly staff the facility is on the facility."

However, Supreme Court Justice Robert W. Doyle, in a Sept. 28 decision, rejected that argument.

"Under no view of the facts of this case could it be said that the People were seeking to compel defendants continued employment by any particular entity," wrote the judge in People v. Jacinto, Indictment No. 00769-07. Rather, he held that there was "sufficient evidence" to conclude that the nurses should be charged with" specific crimes for the actions taken by them, en masse, at a time when they were entrusted with the care of certain physically disabled children."

In a separate motion to dismiss the charges against Mr. Vinluan, Mr. Michelen argued that there was insufficient evidence to demonstrate that Mr. Vinluan intended to endanger someone's welfare.

However, the judge said the indictment against the attorney was backed by "ample evidence." "While a nurse may, oftentimes, have a right to unilaterally resign from his or her position of employment, the actions of these defendants, acting together with forethought and planning, was not a simple resignation from a nursing position," wrote the judge in People v. Vinluan, Indictment No. 00769A-07, noting that the resignations "could have had disastrous consequences."

The trial has been scheduled for April 28, 2008.

However, to prevent it from going forward, Mr. Michelen filed with the Appellate Division, Second Department, a writ of prohibition under Article 78 of the CPLR, and same was given due course earlier with a stay order issued until the ppellate Division can decide the case on the merit.

The Appellate Division can either ISSUE or DISMISS THE APPLICATION FOR A WRIT OF PROHIBITION.

DISMISSAL OF THE APPLICATION OF THE WRIT OF PROHIBITION will pave way for the criminal prosecution of the nurses.