STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GRANVILLE 02 DHR 0555

MARK THOMAS, )

Petitioner, )

)

v. )

) DECISION

NC DEPT OF HEALTH AND HUMAN )

SERVICES, DIVISION OF FACILITY )

SERVICES, )

Respondent. )

This matter was heard before Sammie Chess, Jr., Administrative Law Judge, on July 9, 2002 in Raleigh, North Carolina. Additional testimony for the record was taken by deposition of Karen Couch, R.N., on August 23, 2002 in Butner, North Carolina. Both Petitioner and Respondent, through counsel, were present at the deposition.

APPEARANCES

For Petitioner: Mark Thomas, pro se

Post Office Box 2105

Oxford, North Carolina 27565

For Respondent: Jane L. Oliver, Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

ISSUE

Whether Respondent failed to use proper procedure or otherwise substantially prejudiced Petitioner’s rights when it determined that, on or about October 6 and 7, 2001, Petitioner, a health care personnel, abused multiple residents of John Umstead Hospital, a healthcare facility, by using profanity and non-therapeutic interventions which resulted in the need to restrain one of the residents, J.M.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 150B-23

42 CFR § 488.301

10 NCAC 3B.1001

EXHIBITS

The following exhibits were admitted into evidence without objection: Respondent’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16.

FINDINGS OF FACT

Based upon the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following findings:

1. Petitioner was employed as a health care technician at John Umstead Hospital “Umstead”) in Butner, North Carolina from May 2001 until October 2001. While working at Umstead, Petitioner received training to become a certified nurse aide. Petitioner had previously worked at Umstead in 2000. (T pp 14-16)

2. Umstead is a psychiatric hospital and as such is a healthcare facility as that term is defined in N.C. Gen. Stat. § 131E-256(b)(7). (T p 16)

3. In October 2001, Petitioner was working on the adult admissions unit at Umstead Hospital. As a health care technician, Petitioner was responsible for providing direct care to the patients on the unit. Petitioner was part of the treatment team and was expected to have a therapeutic relationship with the patients and to teach social skills. Petitioner was responsible for reading and following the individual treatment plan for each patient. Petitioner’s job description required that he always maintain a calm demeanor and use appropriately the intervention skills which he had been trained in, including therapeutic communication skills. Petitioner had been taught that the hospital’s patients often have very low frustration tolerance and minimal coping skills. Petitioner was also required to observe and monitor the patients individually and in groups so that he would be aware of any significant changes in the patients. Petitioner was required to take appropriate action to maintain a safe environment for the patients. (T pp 16, 19, 47, 106-07; Resp Exh 1)

4. Petitioner received training at Umstead on patient rights and abuse, neglect and exploitation. Petitioner had been trained that “patient abuse” includes verbally “cursing, teasing, ‘baiting,’ or humiliating or . . . acting or gesturing in a manner demeaning to the patient.” In July 2001, Petitioner had been informally counseled about how to interact appropriately with patients. Petitioner was placed on a developmental work plan which cautioned him to avoid confrontations with patients and be more aware of his tone and body language. (T pp 18-19, 37-44, 108-12; Resp Exh 4, 12 and 13)

5. Petitioner worked second shift on October 6, 2001. During the afternoon, Petitioner came into the dayroom where some of the residents were watching a videotape. Lara Rose, a health care technician, was also present. Petitioner walked over to the VCR and took the tape out without explaining why. One of the residents, A.McF. started arguing with Petitioner. He asked Petitioner why he had taken the movie out. Petitioner responded, “I ain’t got to tell you shit. This is a hospital and you can’t watch this movie.” Petitioner and the resident began exchanging words. A.McF. told Petitioner, “This is fucking stupid.” Petitioner responded, “Who the fuck you calling stupid? You want some of this?” Petitioner left the room, put his glasses and keys down and returned to the dayroom. The resident took off his shoes to fight. James Morton, another health care technician who was fifty to sixty feet away, heard A.McF., cursing in the dayroom. Mr. Morton, did not go to the dayroom immediately, but then he heard Petitioner cursing. When he got to the dayroom, Petitioner and the resident were cursing each other back and forth. Mr. Morton told Petitioner to leave the dayroom. Petitioner left and Mr. Morton calmed A.McF. down. Later, Mr. Morton told Petitioner that he could ask Mr. Morton for assistance, if he ever needed help with patients. (T pp 221-23, 7, 47-49, 53, 62, 65-78, 85-86; Resp Exh 2, 5, 6 and 7)

6. Petitioner also worked second shift on October 7, 2001. During the afternoon, Mr. Morton was working on the female hall. Petitioner was in the dayroom taking vital signs of one of the patients. Mr. Morton heard one of the female residents, J.M., hollering in the dayroom. Karen Couch, R.N., was at the nurse’s station and she heard Petitioner say in a loud angry voice, “I said turn that TV down.” Petitioner admitted that he was angry and that he raised his voice. Mr. Morton went to the dayroom where Petitioner and A.McF. were exchanging words. He said to A.McF., “Don’t you motherf*****s start with me today, I’m tired of you.” A.McF. told Petitioner that he was going to “kick his ass.” Petitioner responded by saying, “You ain’t going to do a f****** thing to me. I’m going to bust you.” J.M. was escalating and Petitioner was doing nothing to calm her down. When Mr. Morton came into the room, he told Petitioner to leave and said that he would handle the situation. (T pp 29-32, 50-52, 54, 86-88; Deposition pp 7-14, 21, 39-44; Resp Exh 2, 5, 8 and 9)

7. Mr. Morton tried to calm A.McF. down but he could not get him to settle down. J.M., the female resident was extremely upset as a result of the incident and started screaming about someone trying to rape her. She became so out of control that staff from other units had to be called and J.M. was placed in restraints. J.M. had to be kept in restraints with one-on-one supervision for at least one hour. Ms. Couch had never seen J.M. acting so out of control. Ordinarily she just gets tearful and cries when she is upset but on this occasion she was yelling, cursing, screaming and pushing furniture. The other patients who were present were upset but not out of control. Ms. Couch tried to talk with Petitioner about what had happened but he was belligerent with her and would not sit and talk with her. (T pp 32-34, 50-51, 57, 87, 174-76; Deposition pp 13-14, 18-19, 30-35, 42-44; Resp Exh 5, 8 and 9)

8. Because psychiatric patients are emotionally fragile and do not tolerate frustration well, the staff had been trained how to deal with patients who are distraught. They are taught not to get angry or to curse or use profanity with the patients. The staff had been trained to walk away from a situation rather than lose control and get upset. The staff had also been told that they should get assistance from the supervising nurse who is always on the unit. (T pp 55-56, 60-61, 76, 113-14; Resp Exh 5, 7 and 9)

9. Karen Couch, R.N., contacted Robyn Carr, the patient advocate at Umstead Hospital, to report the incident that occurred on Sunday afternoon. Ms. Carr conducted separate interviews of Petitioner, James Morton, Lara Rose and the residents who were present on both October 6, 2001 and October 7, 2001. As a result of her investigation, Ms. Carr concluded that Petitioner verbally abused the residents by using inappropriate, threatening and demeaning language and by being threatening in his demeanor. Ms. Carr found that Petitioner’s version of events was inconsistent with that of the other witnesses, including patients and staff. Petitioner told Ms. Carr that he had not gotten into an argument with the patients and that he had no idea why they were upset with him. Petitioner was dismissed for verbal abuse of the patients. (T pp 80-84, 89-90, 94-97, 99, 100-02; Resp Exh 10, 11 and 13)

10. Ms. Carr reported the allegation to the Health Care Personnel Registry. Rosemary Harrell, R.N., a nurse investigator for the Health Care Personnel Registry, investigated the allegation that Petitioner had verbally abused the patients. Ms. Harrell visited John Umstead Hospital where she reviewed Petitioner’s training records and personnel file. She also reviewed the facility’s abuse policy, time sheets and assignment sheets, and the medical records of the patients involved, including the nursing notes and restraint records for J.M. Ms. Harrell then interviewed James Morton, Lara Rose, Robyn Carr, Susan Thompson, R.N. and Petitioner. (T pp 142-44; Resp Exh 10 and 14)

11. As a result of her investigation, Ms. Harrell concluded that Petitioner verbally abused the patients by yelling and cursing at the patients in the dayroom. Ms. Harrell relied primarily on her interview with James Morton and Lara Rose but she also considered the statements of the patients who had been present. (T 146-48; Resp Exh 15)

12. Respondent notified Petitioner by letter, dated February 27, 2002, that Respondent had substantiated the allegation of abuse against Petitioner and that Respondent intended to list the finding of abuse in the Health Care Personnel Registry. (T pp 148-49; Resp Exh 16)

13. “Abuse” is defined by 42 CFR Part 488.301 to mean: “the willful infliction of injury, unreasonable confinement, intimidation or punishment which results in physical harm, pain, or mental anguish.” This definition is incorporated by reference in the definition of abuse found at 10 NCAC 3B.1001(1).

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 131E and 150B of the North Carolina General Statutes.

2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. As a health care technician working in a healthcare facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4. On October 6, 2001 and October 7, 2001, while employed as a health care technician at John Umstead Hospital in Butner, North Carolina, Petitioner abused several psychiatric patients by becoming angry, cursing and yelling at the residents. As a result of Petitioner’s actions, on of the residents, J.M. became extremely upset and out of control such that she had to be placed in restraints.

5. Respondent did not err in substantiating the allegations of abuse against Petitioner because there is sufficient evidence to support Respondent’s conclusion.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

That the Respondent’s decision to place a finding of abuse at Petitioner’s name in the Nurse Aide Registry and the Health Care Personnel Registry be upheld.

NOTICE

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Resources, Division of Facility Services.

The agency is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150-36(a). The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This the 17 day of October, 2002.

__________________________________________

Sammie Chess, Jr.

Administrative Law Judge

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