By Andrew Karpan

Law360 (April 21, 2020, 9:29 PM EDT ) A Bronx hospital operating at the heart of the COVID-19 pandemic urged a federal judge on Tuesday to let it out of a lawsuit alleging it isn't providing employees with enough masks and protective equipment to prevent them from catching the virus.

The Montefiore Medical Center wants U.S. District Judge Jesse M. Furman to reject the New York State Nurses Association's claims that it isn't doing enough to protect health care workers treating the hospital's influx of COVID-19 patients. In a letter motion filed a day after the union lodged its suit, the hospital insists that being legally ordered to provide equipment and testing whenever nurses say they are needed would come at the cost of jeopardizing the patients they are treating.

"Requiring compliance with NYSNA's new broad and non-specific standards such as 'as needed,' 'on demand,' 'all steps necessary,' and 'improved' upon the risk of civil contempt would paralyze Montefiore's ability to provide critical care to COVID-19 patients," the hospital argued.

The union, which represents 3,000 registered nurses that Montefiore employs, filed suit Monday against the hospital, the same day it leveled similar claims against the New York Department of Health and Westchester Medical Center.

The COVID-19 pandemic has turned Montefiore's main hospital in the Bronx into "a war zone," the union had said. In its complaint, the union detailed the hospital's refusal to respond to its concerns regarding the number of adequate protective masks and fluid-resistant gowns that were available to its members.

At least 150 nurses who work at Montefiore have already tested positive for COVID-19, the union said, and it estimates that at least 150 more nurses will catch the virus if they are not given additional protective equipment.

"We are being given one PPE mask a day," Christina Norstein, an intensive-care nurse at Montefiore, told Law360 on Tuesday, adding that the hospital is refusing to provide additional masks when those get contaminated.

Norstein also says that conditions for nurses at Montefiore are markedly worse than those at other New York hospitals, which she says makes it harder for the hospital to hire nurses to replace those who have fallen ill.

"It's all about saving the dollar and I just really don't understand it," Norstein says. "It's a disaster, it's like a nightmare. They're not protecting us and they're not doing the right thing by these patients."

In Tuesday's motion, Montefiore called this characterization of its motivations "as offensive as it is nonsensical."

The hospital also says that the union's proposals "go well beyond" recommendations by the Centers for Disease Control and Prevention.

"There is absolutely no basis to assume that an arbitrator — in the midst of a pandemic — would require Montefiore to adhere to more rigorous requirements regarding health and safety than what the federal, state, and local health agencies have recommended," the hospital said.

There wasn't enough time to run through the arbitration process mandated by its collective bargaining agreement with Montefiore, given the current crisis, the union said in its suit.

The hospital also argued that it could not be blamed for a shortage of COVID-19 tests, which, it says, forced the hospital's management to ration tests to prioritize symptomatic staff.

A Montefiore nurse previously testified in an affidavit that after she began experiencing symptoms of COVID-19, she reported them to the hospital and had asked for testing, but was informed the hospital would not test her. She later tested positive for the coronavirus after obtaining a test on her own.

Montefiore said that, regardless, it began testing its entire staff this week.

The hospital's response emphasized that any legal orders the union may be able to secure would come at the cost of the center's own flexibility and, therefore, its ability to treat patients.

"If Montefiore's health experts are not permitted to make these critical decisions based on their own and governmental expertise, patient outcomes will suffer," Montefiore writes.

The union has until Friday to respond to Montefiore's motion, according to a scheduling order Judge Furman issued Tuesday.

A representative for the Montefiore Medical Center did not respond to a request for comment Tuesday.

The nurses are represented by Kate M. Swearengen, Joseph J. Vitale, Joshua J. Ellison, Olivia R. Singer and Susan Davis of Cohen Weiss & Simon LLP.

Montefiore is represented by Neil Howard Abramson and Noa Michelle Baddish of Proskauer Rose LLP.

The case is the New York State Nurses Association v. Montefiore Medical Center, case number 1:20-cv-03122, in the U.S. District Court for the Southern District of New York.

--Editing by Bruce Goldman.

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