Salmon v. Dept. of Public Health & Addiction Services, (SC 16400)
Citation | 259 Conn. 288,788 A.2d 1199 |
Decision Date | 05 February 2002 |
Docket Number | (SC 16400) |
Court | Supreme Court of Connecticut |
Parties | SANDRA 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).
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. 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 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.
10 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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