Hospital wins appeal; OK to fire nurse for sex

HARRISBURG - A hospital had the right to fire a male nurse for having consensual sex with a patient less than two days after she underwent heart surgery, a state appeals court ruled yesterday.

A three-judge Commonwealth Court panel unanimously overturned an arbitrator's decision to reinstate the nurse.

The woman had double-bypass surgery at Temple University on July 13, 2006, and had sex with registered nurse Richard J. Baldwin sometime around 4 a.m. on July 15, according to the opinion.

The matter came to light a few days later, when the woman asked a doctor to determine if the unprotected sex had resulted in any sexually transmitted diseases. Hospital investigators said the patient indicated that she was attracted to Baldwin and that the medications she was taking had nothing to do with what happened.

Baldwin, now 44, apparently gave conflicting statements about the encounter to hospital investigators and the arbitrator.

He testified before the arbitrator that he did not have sex with the woman, but investigators said he told them that the woman had come on to him and he was being fired for having consensual sex.

In a brief phone interview with the AP yesterday, Baldwin said "of course" he did not have sex with the patient.

He called the court's decision "ridiculous" and said he was in the lounge of another hospital, where he currently works, and unable to discuss the matter in the presence of coworkers. He declined to identify his current employer.

Even if it was consensual, Temple hospital officials argued, the sex act was a violation of state nursing standards and hospital policy.

Arbitrator Richard Kashner concluded the hospital's evidence was not sufficient.

Judge Doris A. Smith-Ribner wrote that Kasher made troubling and serious errors.

"The arbitrator emphasized that he found a contradiction as to who initiated the sexual encounter, which could not be resolved because the patient did not testify," Smith-Ribner wrote. "As the applicable regulations make plain, and as should be immediately obvious, the question of who initiated the encounter has no bearing at all on whether Baldwin violated the regulations."

Jonathan K. Walters, attorney for the Temple University Hospital Nurses' Association, said yesterday the union would have to decide whether to pursue an appeal to the state Supreme Court. He said the Commonwealth Court panel exceeded the scope of its authority.

Temple University Hospital lawyer Joe H. Tucker Jr. said the court's ruling vindicated the decision to fire Baldwin. He said the hospital has refused to reinstate Baldwin, even after the union prevailed before the arbitrator and a county judge.

The patient, a divorced library assistant who is now 60, sued Baldwin and the hospital last year for negligence, assault and battery, medical malpractice, and other claims. That lawsuit is pending.

"You don't have sex with your patients after they've had open-heart surgery," said her lawyer, Joseph M. Fioravanti. "That's what this is all about."