February 5, 2023

Judge Lifts Order Preventing Wisconsin Hospital Workers From Starting New Jobs

A judge in Wisconsin on Monday lifted an order that had temporarily blocked seven employees of ThedaCare, a major regional hospital system, from leaving for new jobs with another health care network until it could find people to replace them.

The dismissal of a temporary injunction cleared the way for the workers to begin their new jobs with Ascension Northeast Wisconsin. Last week, ThedaCare sued Ascension, seeking to temporarily keep the workers from leaving and touching off an unusual labor dispute rooted in twin crises roiling the health care industry: a shortage of workers, many of whom are demanding higher wages, and a raging coronavirus pandemic.

Ascension Northeast Wisconsin said in a statement before Monday’s hearing that ThedaCare “had an opportunity but declined to make competitive counter offers to retain its former employees.”

The employees, members of ThedaCare’s interventional radiology and cardiovascular team, were at-will employees and were not contractually obligated to stay with ThedaCare for a fixed time, according to Ascension, which is part of one of the largest Catholic health care systems in the United States.

ThedaCare, which operates seven hospitals and provides care to more than 600,000 people annually, said in its lawsuit that it was seeking to “protect the community” by temporarily retaining the employees, who accepted new jobs with Ascension in December and were supposed to start on Monday.

It added that the employees, who together make up a majority of an 11-person team, provide “vital care for critically ill patients” and that Ascension “should have known that this action would decimate ThedaCare’s ability to provide critical care” to trauma and stroke victims in the Fox River Valley, a three-county stretch from Green Bay to Oshkosh.

Lynn Detterman, a senior vice president of ThedaCare South Region, said in a statement on Monday, “We know this situation has put the team members who decided to leave ThedaCare in the middle of a difficult situation.”

“Our goal was always to create a short-term orderly transition, not to force team members to continue working at ThedaCare,” she said.

David Muth, a lawyer for Ascension, said in a motion filed on Monday that ThedaCare was blaming others for its own mistakes, and that it had attempted to turn its “poor management” into “a disruptive personal emergency for everyone — anyone — but itself.”

Last week, Judge Mark McGinnis of Outagamie County Circuit Court granted ThedaCare’s request for a temporary restraining order blocking the employees from starting at Ascension this week as planned, and told the lawyers for both parties on Friday to seek a deal, The Post-Crescent of Appleton, Wis., reported.

The lawsuit was filed as hospital systems across the country, including in Wisconsin, are struggling to retain workers during the pandemic.

But Joe Veenstra, a labor and employment lawyer in La Crosse, Wis., said the lawsuit was an unusual and far-reaching attempt by ThedaCare to interfere with the free market and to keep employees without having to pay them higher wages.

“We’ve definitely entered an alternate universe,” Mr. Veenstra said, adding: “Now we have managements incapable of controlling labor and asking courts to prevent the free market from happening. It’s just, we’re living in an upside down world right now.”

It was unclear how long ThedaCare wanted to retain the seven employees. The hospital system said in its lawsuit that it wanted Ascension to either lend one radiology technician and one nurse to ThedaCare each a day until it hired adequate staff or pause its hiring of the employees until replacements could be found.

Mr. Veenstra said that for ThedaCare “to restrict their employment in this way, it’s very, very unusual.”

ThedaCare says in the lawsuit that in order to retain the Level II trauma center status at ThedaCare Regional Medical Center-Neenah — the second-highest category a hospital can achieve — it must be able to perform interventional radiology procedures 24 hours a day. That is impossible to sustain if the employees leave, it says.

If the hospital is unable to provide round-the-clock interventional radiology care, such as restoring blood flow to a patient’s brain after a stroke, it would “risk the withdrawal of its Level II trauma center verification” and be forced to transport patients elsewhere, the lawsuit states.

Timothy Breister, one of the employees mentioned in the lawsuit, said in a letter to Judge McGinnis that Ascension “in no way recruited any of the seven of us,” as ThedaCare has argued.

Instead, Mr. Breister said, one member of the team “received an outstanding offer not just in pay but also a better work/life balance,” inspiring the others to apply.

After they received offers from Ascension, the seven employees asked ThedaCare’s management to match Ascension’s offer, Mr. Breister said. He said they were told that “by matching the offers, the long term expense to ThedaCare was not worth the short term cost and that no counter offer would be made.”

He added that patient care would not be compromised because the services the workers performed at ThedaCare would now be done at Ascension. He and the other employees could not be immediately reached on Monday.

Ms. Detterman of ThedaCare said in an affidavit that if the employees left, the hospital would need to divert patients to facilities as far away as Milwaukee or Madison, both of which are about 100 miles away.

“Unfortunately, it is foreseeable that some patients may die because ThedaCare cannot timely treat them without interventional radiology and cardiovascular services,” she said.

She added that diverting patients had become more difficult during the pandemic, which has strained hospitals as case counts have risen.

Health care workers in Wisconsin, where 63 percent of eligible people are fully vaccinated against Covid-19, are dealing with a surge in cases. On Sunday, the daily average for new cases in the state was more than 21,000, according to a New York Times database.

Mr. Muth, the lawyer for Ascension, said in his motion that the company had posted the jobs in part to address the “same staffing shortages affecting the entire health care industry during the pandemic.”