STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 03 DHR 1525

ALPHA KAMARA, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

Respondent. )

THIS MATTER came on for hearing before the undersigned Augustus B. Elkins II, Administrative Law Judge, on December 18, 2003 and January 12, 2004, in Raleigh, North Carolina.

APPEARANCES

Attorney Mark A. La Mantia

for Petitioner Farrell and La Mantia

4900 Falls of Neuse Road, Suite 212

Raleigh, North Carolina 27609

For Respondent: Morgan Whitney, Jr. (December 18, 2003 Hearing)

Wendy L. Greene (January 12, 2004 Hearing)

Assistant Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602

ISSUE

Whether Respondent acted erroneously, arbitrarily or capriciously, and/or failed to act as required by rule or law when it substantiated the allegation and entered a finding that Petitioner neglected a resident at the Laurels of Forest Glenn resulting in a fracture of the resident’s left ankle in the Nurse Aid I Registry and Health Care Personnel Registry?

EXHIBITS

Petitioner’s Exhibits 1 through 5 were entered into evidence.

Respondent's Exhibits A through J, P, Q, R, S, U, W and X were entered into evidence.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearings (including Ms. Blanton’s testimony by telephone on January 12, 2004 over the objection of Petitioner and after Respondent had been provided the opportunity to continue the hearing to have Ms. Blanton appear in person and Ms. Blanton continued to refuse to appear in person and/or Respondent failed to make proper arrangements), the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. The parties, either before or during the hearings, stipulated to the following facts:

A. Mr. Kamara did transfer the subject resident, JR, from her wheelchair back to her bed by himself, without any assistance, in the early afternoon on April 10, 2003.

B. There were no documents in Mr. Kamara’s personnel file showing any in-servicing or training on any particular procedures, including abuse, neglect or transfers. (Tr. Pps. 221-222)

C. Laurels of Forest Glenn has no records of the CNA book referred to in the testimony by Ms. Vermilyea, the Director of Nursing, or Ms. Bright, the morning and early afternoon charge nurse from April 10, 2003, or any of the Care Plan sheets that would have been in any such CNA book. (Tr. Pp. 222, ll. 6-9).

2. Laurels of Forest Glenn is a nursing facility and health care facility as defined in N.C. Gen. Stat. §131E-255 and 256(b), and therefore subject to those statutes.

3. Alpha Kamara is 25 years old and a native of Sierra Leone. Mr. Kamara first came to the United States to live in September of 1999. English is not his first language. Mr. Kamara first received his CNA certification in the year 2000. In addition to working as a CNA, Mr. Kamara is/was a student and training as an Olympic athlete in track, having competed for his native country in the Olympics in Sydney, Australia. (Tr. Pps. 222-225; Pp. 226, ll.15-17). As a result of his training, Mr. Kamara is strong and testified he regularly lifts over 240 pounds. (Tr. 235, ll. 4-15).

4. After having worked at a couple of other facilities, Mr. Kamara was hired at the Laurels of Forest Glenn on September 27, 2001. Mr. Kamara remained employed there until April 25, 2003, on which date he was terminated. At least as of January 14, 2003, when his last personnel evaluation was done, it was documented that had received an overall rating of excellent and it was stated that: “Overall performance above minimum standards. Felt to show professionalism in the care of residents as well as in his involvement with staff.” (Tr. Pp. 226; Exhibit F)

5. Mr. Kamara testified that he never failed to follow instructions, and that he had never had any problems or complaints made against him before Ms. Vermilyea came on as the Director of Nursing in January of 2003. (Tr. Pp. 240, ll. 14-19; Pp. 227, ll. 2-8). Nurse Bright confirmed that she had worked with Mr. Kamara on occasion before April 10, 2003 and that to her knowledge he never refused to follow instructions and he was a very good employee. (Tr. Pp.37) Even after Ms. Vermilyea came on as the Director of Nursing, and prior to his termination on April 25, 2003 there was only one complaint that she had made Mr. Kamara aware of and, although she had suspended Mr. Kamara at the time, at the hearing she admitted that the matter had turned out that the complaint was not justified. (Tr. Pp. 77)

6. Mr. Kamara worked a limited schedule at the Laurels of Forest Glenn, generally weekends and Thursdays. He was also not assigned to a particular location or floor, and according to him no one ever told Mr. Kamara that he need to check any care log before tending to patients, on the 10th of April or otherwise.. (Tr. Pp. 229-230, ll. 1-2) The Undersigned finds Mr. Kamara’s testimony credible.

7. On April 10, Mr. Kamara reported for work and was assigned to work in the area where Sarah Bright was the charge nurse. Mr. Kamara worked a double shift that day (i.e. from approximately 6:09 am to 10:41 pm)(Exhibit J).

8. JR was a patient in that part of the facility at that time, having been brought in on March 18, 2003 after she had suffered a broken leg from a fall from her wheelchair on or about March 8, 2003. (Exhibit H, Exhibit 1) Mr. Kamara did not normally work that side of the facility. (Tr. Pp. 230, ll. 22-23). Although Mr. Kamara had some familiarity with JR from his prior work in the facility, this is the first contact he had with her after she had broken her leg. (Tr. Pp. 227, ll. 10-22).

9. Sometime about 10 - 11 am, Mr. Kamara went to Nurse Bright and asked her whether he could get JR out of bed. (Tr. Pp. 229-231, Pp. 24-25) ) According to Mr. Kamara, at that time Nurse Bright said that he would have to get someone from physical therapy to come and show him how to position JR’s leg, and no one ever told him he need to check the care log or that JR was a two person transfer. (Tr. Pp. 229-231).

10. Nurse Bright confirmed this in her live testimony at the hearing, although there was some conflict between her live testimony and the written information developed by the Nurse Investigator, Sarah Flowers, concerning her statements/interview notes from Ms. Bright. (Tr. Pp. 24-26, Pp. 38, Exhibits V and W) Nonetheless, in direct response to a question from Assistant Attorney General Whitney regarding whether she told Mr. Kamara that JR was a 2 person transfer, Ms. Bright again stated she told Mr. Kamara he had to go to physical therapy. (Tr. Pp. 29, ll.9-14) - she never said she instructed him on or before April 10, 2003 that this was a 2 person transfer.

11. When Mr. Kamara went back into JR’s room that morning, Diane Blanton the Physical Therapy nurse was already there and they took JR out of bed and Ms. Blanton showed Mr. Kamara how to position JR’s leg in the chair. According to Mr. Kamara he had not called Physical Therapy to come (i.e. Ms. Blanton was already there when he came back into the room) and no one other than Ms. Blanton was present. (Tr. Pp. 231-232, Pp. 244-246) Mr. Kamara strongly denied, when questioned later by Ms. Vermilyea, the State Surveyor (Elaine Edwards), or Sarah Flowers the Nurse Investigator, and at the hearing, that Ms. Blanton had given him any instructions that JR was limited to a 2 person transfer (Tr. Pp. 231-232, Pp. 243), or that Ms. Blanton had Mr. Kamara practice with another CNA transferring JR from the bed to her wheelchair. (Tr. Pp. 249). The Undersigned finds Mr. Kamara’s testimony credible.

12. In her telephone testimony at the January 12, 2004 hearing, and once again despite some conflict between her hearing testimony and the written information developed by the Nurse Investigator, Sarah Flowers, concerning her statements/interview notes from Ms. Blanton, Ms. Blanton clearly confirmed that: she had not been called to the room by Mr. Kamara that day and that she had not called Mr. Kamara, but rather Mr. Kamara had happened to come in at about the same time Ms. Blanton had gone to take JR to physical therapy for the first time after she had broken her leg on March 8, 2003 (Tr. Pp. 284, 313); she and Mr. Kamara were the only staff from Laurels of Forest Glenn in the room with JR that morning and that they did not practice getting JR in and out of bed on that date (Tr. Pp. 299-300). Ms. Blanton also testified that she did not review any CNA sheets (Tr. Pp. 297, 314), kept no notes of her own concerning this matter (Tr. Pp. 301-302), was not sure if she had worked with Mr. Kamara before (Tr. Pp. 287), and could not identify any other CNA she had instructed regarding JR, whether alone or together with Mr. Kamara, or state when she had showed Mr. Kamara and any other CNA how to transfer, and practiced transferring, JR from her bed to the wheelchair and back. (Tr. Pp. 311-313)(Compare Exhibit X)

13. Mr. Kamara put JR back to bed sometime around 1:30 pm and was then out of the facility for a lengthy period of time (several hours) taking another patient for a Doctor visit, during which time another CNA (Maggie) would have had his assignments. (Tr. Pp. 233-234, Exhibit I) At the time he put JR back to bed, Mr. Kamara did not rest any weight on her feet and after she was back in bed JR made no complaint to Mr. Kamara about any problems or pain prior to the time he left to take the other patient to the Doctor. (Tr. Pp. 235)

14. Nurse Bright stated that: she gave JR medication that day (April 10) between 8-9 am while she was still in bed; she later saw her up in the chair; she saw her again mid-day to flush her drainage tube; she saw her last about 2-2:30 at the end of her shift and after she was already back in bed and Nurse Bright was giving her reports to her relief nurse, Diane Calvi. (Tr. Pp. 27; Pp. 34-35). At no time prior to her leaving for the day did Nurse Bright observe JR to be in any pain or discomfort, or did JR complain to Nurse Bright about any pain or discomfort. (Tr. Pp. 34-35)

15. At 11:30 pm April 10, 2003 the nurse’s notes for JR show that a Nurse Calvi recorded that JR appeared to have excruciating pain in her left foot and that the foot was swollen and turned outward, and that JR seldom complained of this much pain and she faxed a note to Dr. Soni. (Exhibits Q and R). This was long after (many, many hours) Mr. Kamara had put JR back to bed and after Nurse Bright had left for the day around 2-2:30 pm. These are the only nurse’s “Progress Notes” for that entire day, and no notes were kept or documentation done each time a resident is moved in and out of bed. (Tr. Pp. 70-71)

16. JR was taken to REX Hospital the next day, where it was determined that she had a fracture near her ankle and in her foot. (Exhibit 6).

17. At various times since, JR has stated that: she did not know how she was injured (interviews with Surveyor, Investigator, and statements on Saturday April 12 to Nurse Bright, Tr. Pp. 30, ll. 5-7); or, that she was transferring from her wheelchair and the wheelchair rolled over and she fell and twisted her left lower extremity (Exhibit 6 - Surveyor’s Report reflecting hospital emergency records); or, that she fell out of her wheelchair when reaching over and trying to get something from her night stand and two girls picked her up when her wheelchair turned over (Exhibit C). No physician or other qualified person has ever determined the cause of JR’s injuries on April 10, 2003. (Tr. Pp. 91, ll. 9-14 (Vermilyea) and Tr. 174-175 (Flowers))

18. Even though JR was aware that Alpha (Mr. Kamara) had waited on her sometimes (Exhibit C), she has never said anything to anyone that indicated that Mr. Kamara had done anything to her or caused her injuries on April 10, 2003. (Tr. Pp. 47, ll. 10-16 (Bright), Tr. Pp. 73, ll. 2-8 (Vermilyea) and Exhibit C).

19. Cheryl Vermilyea was the Director Nursing at the Laurels of Forest Glenn on April 10, 2003. She worked for the Laurels of Forest Glenn from approximately January 2, 2003 to September 12, 2003. (Tr. Pp. 52) Ms. Vermilyea was not present at the facility on either 10th or 11th of April, and first heard of JR’s situation and injury on Saturday, April 12, 2003.(Tr. Pp. 54)

20. Ms. Vermilyea suspended Mr. Kamara when she returned after that weekend because she felt it was a transfer injury and she had determined that Mr. Kamara had transferred JR by himself. (Tr. Pp. 55-58) Ms. Vermilyea and Mr. Morris, the Administrator at the Laurels of Forest Glenn, did not however conduct any interview of Mr. Kamara until April 25, 2003, the same day they terminated his employment. (Tr. 58-59 (Vermilyea), Tr. Pp. 237-239 (Kamara)) Even though Mr. Kamara maintained that no one told him JR was a two person transfer, Ms. Vermilyea testified that she did not believe him and reached her conclusions regarding Mr. Kamara’s neglect and the transfer injury based on the care plan and other information she reviewed before she and Mr. Morris spoke to Mr. Kamara. (Tr. Pp. 79, Pp. 79, Pp. 92, ll. 9-14) Although Ms. Vermilyea opined that the injury, i.e. an “oblique fracture”, was consistent with a transfer injury, on cross-examination she admitted that: she was not a doctor and that such an injury could be caused by other events, including for example an elderly person’s leg and foot getting twisted in the bed sheets; that she could not say what conclusively caused any injury to JR; and that no doctor ever concluded what the cause of JR’s injuries was. (Tr. Pp. 85, 89 and 91) Further, as stated above JR herself never cited Petitioner as the cause of her injuries.