Judge Backs Nurses Over Staffing

Gov. Arnold Schwarzenegger had no authority to suspend a new law requiring more nurses at California hospitals and emergency rooms, a judge said Thursday, handing an early victory to some of the governor’s most vocal critics.

The tentative ruling by Sacramento County Superior Court Judge Judy Holzer Hersher concerns one of the Schwarzenegger administration’s most controversial decisions. Last year, the governor issued an emergency order suspending a law requiring one nurse for every five patients in California hospitals, which are regulated by the state. He cited a severe a nursing shortage and hospital closures as reasons for the action.

The California Nurses Assn. sued Schwarzenegger in December to overturn his emergency edict and enforce the ratios. The lawsuit came two weeks after Schwarzenegger dubbed the 60,000-member group a “special interest” that was angry because he was “kicking their butts.”

The judge’s 21-page ruling sided with the nurses on most of their points. A hearing is scheduled for today in Sacramento for both sides to argue their cases one more time; the judge could still change her mind.

Rose Ann DeMoro, executive director of the nurses’ organization, nevertheless said the preliminary ruling “is monumental news for all California patients and families who need hospital care.”

“It is the right thing to do,” said state Sen. Deborah Ortiz (D-Sacramento), chairwoman of the Senate Health Committee. “It’s better for patient care, but it is a challenge. We have failed to have enough nursing programs. We haven’t supported the profession enough.”

Catherine Lefkowitz, 51, of Pasadena, a pediatric nurse at Martin Luther King, Jr./Drew Medical Center, greeted the tentative ruling with, “Right on, hallelujah.” The governor, she said, “didn’t have the authority to go around the Legislature to make a decision. There wasn’t an emergency.”

Robert Tousignant, chief counsel for the state Department of Health Services, said the administration hopes to be able to change the judge’s mind today. If it can’t, he said, officials will “pursue all our legal remedies,” including an appeal.

“The state’s regulatory action on nurse-to-patient staffing ratios is based on a solid legal foundation,” said Kim Belshe, Schwarzenegger’s Health and Human Services secretary, “and is consistent with the administration’s priority of protecting patient safety while ensuring access to care.”

The nurse-patient ratios were signed into law by former Gov. Gray Davis in 1999 and took effect in January 2004. In November, Schwarzenegger postponed the new ratios for medical-surgical units and emergency rooms. His Department of Health Services has been attempting to make the changes permanent through regulations.

Under the Schwarzenegger order, medical-surgical units would be required to maintain the old 1-to-6 ratio of nurses to patients instead of the new 1-to-5 ratio. The administration also postponed a requirement that hospitals provide one nurse for every four patients in emergency rooms as long as there is a “healthcare emergency.” The definition of a healthcare emergency is in dispute.

In her tentative ruling, the judge appeared sympathetic to complaints from hospitals that forcing them to have more nurses could lead to closures. She noted that the managed care industry, inadequate payments for Medi-Cal patients and an increasing population of uninsured patients have put pressure on hospitals’ bottom lines.

Hospitals say they are under intense financial pressure. In a separate matter Thursday, 30 California hospitals sued the state Department of Health Services in federal court over how much they are paid by the state. The hospitals say the state has illegally frozen the rates it pays for treating 6.6 million low-income Medi-Cal patients.

But despite the financial pressure on hospitals, the Sacramento judge said state regulators did not have the right to overrule a state law requiring that nurses be “accessible and available to meet the needs of patients.” She also said state health officials did not present any “data to support or refute these and other claims that have been made about problems caused or exacerbated by the current nurse-to-patient ratios.”

Hospital groups said the new ruling will make their financial situation worse if the judge upholds it. Jim Lott, spokesman for the Hospital Assn. of Southern California, said many already figured the proposed flexibility in staffing into their budgets. He said the problem is particularly acute in Los Angeles County, where only 78 hospitals still have emergency rooms.

“We’ve had nine hospitals either close their ER or close their hospital altogether over the last two years,” Lott said.

“Every hospital cited as part of the problem and part of the reason for closing the hospital, the labor problem with meeting nurse staffing ratio. Several other hospitals are on the cusp of closing because of financial burdens.... This may make some of those hospitals close,” Lott added.

Dr. Thomas Garthwaite, the director of Los Angeles County’s Department of Health Services, said the county has been making do with temporary traveling nurses, who cost much more than regular staff nurses.

Even so, he said, not enough nurses were available to keep all the county’s beds open.

The county suffers particular shortages in the intensive care units and psychiatry.

“I’m not against more nurses, proper nurses. Because I think you don’t want your nurse to be tired and rushed when she’s caring for you,” Garthwaite said. “At same time, we’re stretched to meet the ratios now.”

Throughout the dispute over the ratios, the California Nurses Assn. has been one of Schwarzenegger’s loudest critics.

Its members interrupted his speech at a Long Beach women’s conference. They held a 1,500-person protest at the Capitol, shouted at his guests during a movie premiere and unfurled a banner at a Sacramento policy speech he gave.

Times staff writer Jordan Rau contributed to this report.