Salmon v. Dept. of Public Health & Addiction Services, (SC 16400)

Citation259 Conn. 288,788 A.2d 1199
Decision Date05 February 2002
Docket Number(SC 16400)
CourtSupreme Court of Connecticut
PartiesSANDRA SALMON v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES

Sullivan, C. J., and Borden, Norcott, Katz and Palmer, Js. Edward F. Osswalt, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant-appellee (defendant).

James R. Smart, with whom, on the brief, was Steven D. Ecker, for the appellee-appellant (plaintiff).

Opinion

BORDEN, J.

The principal issues in this certified appeal and cross appeal are whether: (1) pursuant to General Statutes § 20-102cc (a),1 a subjective or objective test should be applied in determining whether a nursing home resident has suffered any harm or adverse impact as a result of alleged abuse by her caregiver; (2) the definition of resident abuse under the aforementioned statute requires an element of intent or wilfulness, and if so, the proper meaning of such term; and (3) the Appellate Court improperly affirmed the trial court's denial of the plaintiff's motion to remand the case to the defendant, the department of public health and addiction services (department),2 for the taking of additional evidence. We reverse the judgment of the Appellate Court.

The present case involves allegations of verbal abuse brought by Vivian Tschauder against the plaintiff, Sandra Salmon, a nurse's aide at the Shelton Lakes Residence and Health Care Center (Shelton Lakes) where Tschauder resided. Upon learning of the purported abuse, Shelton Lakes terminated the plaintiffs employment and reported her to the department, which formally charged her with violating 42 U.S.C. § 1395i-3 (c) (1) (A) (ii) (1988)3 and 42 U.S.C. § 13951-3 (g) (1) (C) (Sup. V 1993).4 After an investigation and hearing, the department found Tschauder's allegations to be substantiated, and entered the plaintiffs name in the statewide registry of nurse's aides. See footnote 1 of this opinion. Thereafter, the plaintiff appealed from the department's decision to the Superior Court pursuant to General Statutes § 4-1835 of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. The trial court sustained the appeal, determining that the department had improperly found the existence of resident abuse without making the predicate finding that the plaintiffs inappropriate and vulgar language had adversely affected Tschauder. The court remanded the case to the department for purposes of determining whether the existing record supported such a finding. The plaintiff then appealed, and the department cross appealed, from the judgment of the trial court to the Appellate Court. A majority of the Appellate Court, with Schaller, J., dissenting, affirmed the judgment of the trial court. Salmon v. Dept. of Public Health & Addiction Services, 58 Conn. App. 642, 669, 754 A.2d 828 (2000). Following our grant of certification to appeal,6 the department appealed, and the plaintiff cross appealed, to this court.

The following additional factual and procedural history is relevant to the resolution of this appeal and cross appeal. "In August, 1993, the plaintiff was employed as a registered nurse's aide at Shelton Lakes .... On August 18, 1993, Shelton Lakes terminated the plaintiffs employment on the basis of allegations of patient abuse and reported the accusations to the department. On April 27, 1994, the department brought formal charges against the plaintiff, alleging that she had violated 42 U.S.C. § 1395i-3 (c) (1) (A) (ii) (1988) and 42 U.S.C. § 1395i-3 (g) (1) (C) (Sup. V 1993)7 in that she had abused [Tschauder] ... `by using vulgar and inappropriate language and intimidating the resident [while] rendering incontinent care' to her." Salmon v. Dept. of Public Health & Addiction Services, supra, 58 Conn. App. 645. More specifically, the department credited Tschauder's allegations that the plaintiff used the word "pussy" several times while cleaning her perineal area. Id., 646.

"The department notified the plaintiff by letter ... dated May 9, 1994, that the charges against her had been dismissed for insufficient evidence. On May 16, 1994, Mary C. Crowley, a Shelton Lakes administrator, wrote a letter to Donna Buntaine Brewer, chief hearing officer at the department, stating, inter alia, that it was Crowley's understanding `from our telephone conversation today, that at no time was the complaining resident interviewed by your department and, therefore, you are reopening the case as of today.'8 On May 20, 1994, the department notified the plaintiff that it had sent the dismissal letter in error.

"On August 16, 1994, the department served the plaintiff with notice of the hearing and the statement of the charges, which the plaintiff, through her attorney, answered on September 4, 1994. A hearing before a department hearing officer was held on December 16, 1994. At the hearing, Tschauder testified, 'I was all naked there, and she's wiping me and she said, "That's pussy." She kept wiping me, wiping me, saying, "Pussy, pussy, pussy," all the time I'm—away from it all. I couldn't.' Tschauder [also] testified that she was not afraid of the plaintiff after that incident, but that the plaintiff had frightened her that night.

"In her defense, the plaintiff denied ever physically or verbally abusing Tschauder. The plaintiff testified that on the night before Tschauder made the accusation, the plaintiff had a dispute over an unrelated bath incident with coworker Diane Thorpe, the nurse's aide who reported the Tschauder allegation to the head nurse [at Shelton Lakes]. The plaintiff further testified that Thorpe allegedly told her that night that she would `get' the plaintiff. The plaintiff also called Crowley and the Shelton Lakes director of nursing, Mary Frances Wolf, to testify. Crowley gave testimony regarding her investigation of the alleged incident with Tschauder and the termination of the plaintiffs employment. Wolf testified regarding Tschauder's physical condition and mental state.

"On January 20, 1995, the hearing officer issued a proposed final decision in which he determined that Tschauder's testimony was more credible than the plaintiffs and that Tschauder `had nothing to gain by fabricating a story, as [the plaintiffs] attorney suggested she was doing. She was consistent in the main points of her testimony on both direct and cross-examinations. She not only told Diane Thorpe, but also Mary Crowley and Mary Frances Wolf what had happened.'

"On February 15, 1995, the commissioner of public health and addiction services (commissioner) adopted the proposed decision as the final decision in the case... [and] found that the plaintiff had abused the patient through intimidation, and by using vulgar and inappropriate language. [Subsequently, however] [t]he commissioner ... sent a letter to the plaintiffs attorney notifying him that the February 15, 1995 final decision had been sent in error because the department had not been notified that the plaintiff had timely requested an opportunity to file exceptions to [and to present oral argument regarding] the proposed final decision .... After both parties filed briefs and oral argument was heard on March 24, 1995, [the commissioner issued] another final decision ... on April 25, 1995. That decision adopted and incorporated the January 20, 1995 proposed final decision in which the hearing officer determined that patient abuse had occurred... on the basis of the use of vulgar and inappropriate language [but rejected the proposed finding of intimidation].... [T]he commissioner's decision [also ordered] that `a finding of resident abuse [shall] be listed on the Connecticut Nurse Aide Registry [registry], and that this final decision [shall] be filed in the registry.'9

"The plaintiff thereafter appealed from the department's decision to the Superior Court pursuant to ... § 4-183 ... claiming that the department (1) lacked jurisdiction to hear the complaint, (2) violated her due process rights, (3) relied on testimony that lacked credibility and (4) exceeded its statutory authority by finding that vulgar and inappropriate language constituted abuse." Id., 645-48. The plaintiff also moved, pursuant to § 4-183 (h), for a remand to the department in order to present additional evidence concerning the credibility of both Tschauder and the staff from Shelton Lakes who had testified at the original hearing. In a separate ruling, the trial court denied the plaintiffs motion.

"The court sustained the plaintiffs appeal on the sole ground that the plaintiffs substantial rights were prejudiced by the department's determination of resident abuse without the requisite finding that the plaintiffs use of vulgar and inappropriate language had an adverse affect on the patient.10 The court remanded the case to the department for further proceedings on the existing record to state its findings as to whether the language at issue had an adverse impact on Tschauder." Id., 648. The plaintiff then appealed, and the department cross appealed, from the judgment of the trial court to the Appellate Court. Id.

In her appeal to the Appellate Court, the plaintiff claimed, inter alia,11 that the trial court had "improperly... interpreted General Statutes § 20-102cc (a) as not requiring an element of intent and ... abused its discretion in denying her motion to present additional evidence." Id., 644. The plaintiff also joined the department's cross appeal, which challenged the trial court's remand of the case for a determination of whether Tschauder had been harmed by the alleged verbal abuse.12 Id., 644-45. Although the Appellate Court declined to determine whether intent was an element of § 20-102cc (a), citing the plaintiffs failure properly to raise that argument in the trial court; id., 662-63; the court affirmed the trial court's judgment in...

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