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December 21, 2014

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UMC faces sanctions in worker wage case

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Sam Morris / File photo

University Medical Center is Clark County's only publicly funded hospital.

University Medical Center could be on the hook to pay hundreds of thousands of dollars in federal court costs and sanctions after an appointed overseer concluded that it failed to produce documents as required in an employee wage and hours lawsuit.

A blistering report filed this week by Daniel Garrie, a court-appointed special master, found "pervasive misconduct" by hospital record-keepers who he determined "lied, or at best withheld" key electronic records that should have been provided to plaintiffs' lawyers.

"The level of intentional destruction of evidence by UMC shocks the conscience," Garrie said in his 78-page report to U.S. District Judge Andrew Gordon in Las Vegas. "UMC's actions and willful failure to comply with the court's orders has ... made a mockery of the orderly administration of justice."

Garrie recommended the court sanction the financially strapped public hospital and reach a summary judgment in favor of more than 600 class-action plaintiffs seeking damages and back pay, plus interest, for allegedly being forced to work through unpaid lunch periods for three years. The underlying lawsuit, Small v. University Medical Center, was filed in July 2012 on behalf of nurses, respiratory therapists, clerks and other employees.

"UMC failed to maintain, and still fails to maintain, proper time records reflecting when and if its hourly paid employees actually take bona fide 30-minute meal breaks," Garrie concluded.

Clark County Commission Chairman Steve Sisolak on Friday called it "extremely troubling" to learn that a court was poised to impose monetary sanctions.

"It's a great concern if a court order wasn't followed and evidence was willfully destroyed," Sisolak said. "We don't do business like that."

Garrie said hospital administrators blamed multiple factors for their failure to comply with court orders.

"When called to account for the violations, UMC has pleaded their size, their organization structure, their employee turnover and other individual factors," he said.

Hospital spokeswoman Danita Cohen said Friday the hospital wouldn't comment on an ongoing legal case.

Cohen also denied any link between the possibility of sanctions and the announcement this week that the hospital will lay off more than 200 workers as a cost-saving measure. The hospital also plans to quit offering outpatient oncology, pharmacy and clinic services.

UMC is the only publicly funded hospital in the state, and has the region's top trauma center and burn units. It provides millions of dollars' worth of care each year to uninsured patients who can't pay their bills. The facility needed a $70 million subsidy from Clark County to balance its budget this year, and took out another $45 million in emergency loans.

Hospital administrators were notified less than two weeks after the lawsuit was filed to preserve emails, text messages and computer records that might be relevant to the case, Garrie said in his report, filed Monday.

Nevertheless, Garrie said he found a "near-certainty" that University Medical Center destroyed relevant evidence and "violated multiple simply stated orders from the court and special master."

Garrie didn't attach a dollar figure to his recommendation for monetary sanctions. An actual sanction amount would be set by a judge.

He noted, however, that costs for the special master "run into the hundreds of thousands" even before counting attorney fees and costs.

Jon Tostrud, who heads the plaintiffs' lawyers, said Friday the Garrie report helped break a legal logjam in the pretrial phase of a case affecting thousands of employees.

Magistrate Judge Peggy Leen has given UMC until Sept. 1 to respond.

Garrie, based in New York, didn't immediately respond Friday to messages from The Associated Press.

The hospital has sought to seal records in the case.

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