STATE OF NORTH CAROLIN IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
PENDER COUNTY 02 DHR 2206
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ORLANDO STEPHEN MURPHY, )
Petitioner, )
)
vs. )
) DECISION
NORTH CAROLINA DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
DIVISION OF FACILITY SERVICES, )
HEALTH CARE PERSONNEL REGISTRY )
SECTION, )
Respondent. )
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THIS CASE came on for hearing before the undersigned Administrative Law Judge during the course of a regularly scheduled hearing held on September 9, 2003 in the Brunswick County Courthouse in Bolivia, Brunswick County, North Carolina. Petitioner appeared before the court, represented by his attorney, Jeffrey S. Miller. Respondent, North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section appeared by its attorney, Assistant Attorney General N. Morgan Whitney, Jr.
The Administrative Law Judge, based upon the evidence presented, including all witnesses who testified at the hearing, all exhibits which were admitted, and the arguments of counsel as made, hereby makes the following Findings of Fact, Conclusions of Law, and Order.
FINDINGS OF FACT
1. This is an appeal by Petitioner Orlando Stephen Murphy from a finding by the North Carolina division of Health and Human Services that an entry should be made into the Nurses Aide Registry and Health Care Personnel Registry that the petitioner "sexually abused a resident (AI) at Britthaven - Wrightsville Beach, Wilmington, by touching him inappropriately in a sexual manner, thereby causing him emotional anguish" on October 21, 2002.
2. Petitioner filed a Petition for Contested Case Hearing pursuant to N.C.G.S. § 150B-23 in the Office of Administrative Hearings on December 4, 2002.
3. The allegation was investigated by Shirley Anderson, Registered Nurse, who interviewed AI", he alleged victim, Kelli Carlson, an employee of Britthaven, Tiwan Mullins, an employee of Britthaven, and Orlando Murphy, the person accused herein.
4. The witnesses at the hearing for the Respondent were Kelli Carlson, Angela Thatcher and Shirley Anderson. Neither the alleged victim nor Tiwan Mullins testified for the Respondent. The Petitioner testified on his own behalf.
5. According to the Investigative Conclusion (Respondent's Exhibit 14) the allegation of sexual abuse was substantiated on the following basis:
"The victim was consistent in his description of the incident in the reports to his Psychologist, in his statement during facility investigation and in his interview during HCPR investigation. The resident also reported the alleged abuse to his wife and caretaker, Tiwan Mullins."
6. At no point did Respondent provide any evidence of what the alleged victim said to his psychologist, to his wife or to his caretaker, Tiwan Mullins, none of whom testified at the hearing.
7. The statement of Tiwan Mullins (Respondent's Exhibit 9) was never admitted into evidence.
8. Comparing the statements made by the alleged victim during the facility investigation to the statement during the HCPR investigation the Administrative Judge does not find the statements to be consistent, but rather inconsistent.
9. During the facility investigation the victim said that the accused "had come into his room and tried to fondle him. I asked him what he meant by fondling him, he grabbed the palm of my hand and tickled it. I asked what else he had done and he stated that Orland had slept in his room and come in with a sheet wrapped around him saying that he was a preacher and come in to save him" and in what was apparently a separate event "touched him too affectionately." However, when interviewed by the investigator Shirley Anderson, the alleged victim said that the accused "took too long drying him" that the victim used a racial epithet directed toward the accused, and further expressed his dislike of homosexuals. In the interview with the investigator Anderson the alleged victim never said anything about any incident involving hand tickling.
10. From the uncontroverted testimony of the petitioner it is apparent that one of petitioner's responsibilities was to bathe the alleged victim, who was, at times, incontinent. From the petitioner's demonstration of how he would wash and dry the alleged victim's penis it appears that there is a very fine line between doing a good job in bathing a patient, touching him too affectionately, and sexually abusing a patient. The crux of what appears to have irritated the alleged victim in this case, as stated in his interview with the HCPR investigator, Shirley Anderson, is found in his statement "[n]o normal man would take delight in drying another man off. I think he was queer."
CONCLUSIONS OF LAW
Based on the aforesaid Findings of Fact, the Court hereby concludes, as a matter of law, as follows:
1. That this Court has jurisdiction over the subject matter of this action and the parties hereto.
2. That in order to make an entry into the Nurses Aide Registry and Health Care Personnel it must be established that resident abuse, neglect, misappropriation of property, diversion of drugs or fraud by the nurse aide or health care personnel has occurred.
3. The Respondent herein has failed to demonstrate by any standard of proof that any patient abuse occurred in this instance.
DECISION
IT IS HEREBY ORDERED that the Petition in 02 DHR 2206 is hereby allowed and that the listing in the Health Care Personnel Registry be deleted in its entirety.
ORDER
IT IS HEREBY ORDERED that the Agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714, in accordance with North Carolina General Statute § 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. § 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. § 150B-36(a).
This agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the Final Decision to all parties and to furnish a copy to the parties’ attorney of record.
This the 4th day of November, 2003.
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Beryl E. Wade
Administrative Law Judge
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