An arbitrator says Carney Hospital has to rehire six of the twelve nurses it fired in 2011 in a scandal involving physical and sexual abuse of patients in its adolescent psychiatric unit.

Arbitrator Philip Dunn said that while the hospital proved "a stunning level of dysfunction" in the ward, it was wrong to fire every single worker in an attempt to end a "deviant culture" without at least giving them a chance to prove their innocence.

In response, Carney filed a federal lawsuit yesterday to overturn the ruling.

Carney says it's willing to give the nurses comparable jobs in its adult psych unit - with back pay - but that letting them return to their old jobs in the 5 North unit could jeopardize the progress its made in turning it back into a place for caring for very troubled teens, and possibly even lead to the state revoking its license for the unit.

At the heart of Dunn's ruling and the lawsuit are five specific incidents in April, 2011: One female patient was pulled by the hair from behind and slammed against a wall after she threw water at an aide; a female patient reported a male aide had sexually assaulted her; a male patient somehow wound up with a bleeding lip and loose tooth after an aide went into his room to give him some medicine; two patients had sex, which would have been caught if the aides had done their assigned room checks; the male patient in the sexual encounter then tried to kill himself.

Alarmed by so many incidents in such a short period of time, state regulators stopped sending patients to the unit and threatened to pull the unit's license.

The hospital hired former state Attorney General Scott Harshbarger to recommend changes - he came back with a report calling on the hospital to fire everybody and start fresh with new nurses and aides (also known as "mental-health counselors") because of a culture in which nurses failed to adequately oversee the MHCs or report potential problems:

"One of the major underlying sources and causes of operational and performance dysfunction on the Unit is the "code of silence" that exists among all staff. No regular staff or RN supervisor on the Unit ever witnesses inappropriate professional care or behavior by MHC staff or RNs. This code results in a failure to report issues or conceRNs, and to reinforce a general attitude that reporting can trigger retaliation, intimidation, and/or be ignored or unsupported by others. This is true of both staff and RNs. Despite their status as licensed professionals, RNs tend to feel threatened by patients, and do not report incidents for fear that, in retaliation, they will not be protected by MHCs if, for example, a patient becomes violent. ...

"MHC staff, while experienced, educated, and generally dedicated to the concept of these careers and fully aware of the nature of the work, and licensed RNs (many of whom are trained for these Units) operate autonomously, and talk aside, seem to lack motivation to perform – and do not perform – at standards of excellence. For example, many RNs spend the majority of their time in the locked nurses’ station, rather than interacting with the patients. Similarly, many MHCs "hang out" together during their shifts, (and) do not perform required checks of patients.... Both RNs and MHCs habitually sleep on the job, particularly on the night shifts. In addition, both RNs and MHCs have resisted – and questioned – efforts over the past year to change and/or implement policies ... designed to enhance patient care

"MHCs often arrive late for their shifts, take breaks without notifying the RNs, or take breaks at the end of their shifts and leave the hospital before their shifts have ended. Similarly, MHCs report that RNs remain in their station, isolated from the floor and patients for the majority of the time during their shifts."

In his ruling on grievances filed by the Massachusetts Nurses Association on behalf of six nurses, Dunn said then hospital President Bill Walczak never gave the nurses - one of whom was not on duty during any of the April events - a chance to give their side: "While there appears to be little doubt that some awful things happened on 5N in April 2011, none of these six nurses were the perpetrators in those very serious incidents. Nor has it been shown that these six nurses personally contributed to a "culture of mediocrity and/or a deviant culture. ... The Union is correct that the Employer failed to meet its burden of proving that any of these six RNS committed dischargeable misconduct."

In its suit, filed in US District Court in Boston, the hospital responded the nurses proved their complicity in the unit's problems through their inaction: "Testimony at the arbitration established that the culture of mediocrity and substandard care had persisted for years on 5 North; that all of the nurses working on the unit were well aware of its massive deficiencies, which were obvious and persistent and included improper delegation of duties by nurses to MHCs; and that none of the grievants ever filed a complaint with either senior hospital administrators or [the state] concerning the substandard care on the unit."

The hospital added the nurses, along with others, resisted the hospital's initial attempts to switch to a different model of patient care during the investigations by state regulators and Harshbarger: "Reinstatement of the grievants to 5 North – which now, due to its lower patient census, is only staffed with approximately seven nurses – will result in the displacement and removal of virtually all of the RNs who have been serving in the reconstituted unit that had been licensed by DMH in August, 2011. All of the gains achieved in 5 North since its overhaul will be in jeopardy."

David Schildmeier, a spokesman for the Massachusetts Nurses Association, claimed the hospital is filing the lawsuit in an attempt to avoid being held accountable. "It's a terrible insult to a terrible injury to these innocent nurses who only did their job," he said, pointing to the arbitrator's report. "The incidents that led to this, none of them were involved in those incidents."

Schildmeier said union has copies of numerous official reports filed by nurses complaining of conditions on a regular basis. "There was no culture of silence," he said.

He added: "You don’t get to break the law, attack the people, take away their livelihood and then try to make a deal to reinstate them to another job. The hospital was wrong. The hospital broke the law. And it was found by an independent arbitrator that that was the truth."

Schildmeier said the nurses are owed an apology. "This is nothing short of obscene."