Alden Nursing Center-Morrow, Inc. v. Lumpkin

• Decision Date: 17 March 1994
• Docket Number: CENTER--MORRO,No. 1-92-4429,INC,1-92-4429
• Citation: 198 Ill.Dec. 7,632 N.E.2d 66,259 Ill.App.3d 1027
• Parties: , 198 Ill.Dec. 7 ALDEN NURSING, an Illinois Corporation, Plaintiff-Appellee, v. John R. LUMPKIN, Acting Director of the Illinois Department of Public Health, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 66

632 N.E.2d 66

259 Ill.App.3d 1027, 198 Ill.Dec. 7

ALDEN NURSING CENTER--MORROW, INC., an Illinois Corporation, Plaintiff-Appellee, v. John R. LUMPKIN, Acting Director of the Illinois Department

of Public Health, Defendant-Appellant.

No. 1-92-4429.

Appellate Court of Illinois,

First District, Fourth Division.

March 17, 1994.

Roland W. Burris, Atty. Gen., Chicago (Rosalyn B. Kaplan, Sol. Gen., Alison E. O'Hara, Asst. Atty. Gen., of counsel), for defendant-appellant.

Greenburg & Hermann, Chicago (Janet L. Hermann, of counsel), for plaintiff-appellee.

Justice HOFFMAN delivered the opinion of the court:

The Illinois Department of Public Health ("Department") charged plaintiff, Alden Nursing Center, with a "Type B" violation under section 1-130 of the Nursing Home Care Act ("Act") (Ill.Rev.Stat.1989, ch. 111 1/2, par. 4151-130), and with violating sections 300.3240(a) and 300.3240(d) of the Department's Minimum Standards, Rules and Regulations for Classification and Licensure of Long-Term Care Facilities ("Minimum Standards") (77 Ill.Adm.Code §§ 300.3240(a), (d) (1989)), after an Alden nurse's aide allegedly physically and verbally abused two residents and Alden failed to report the alleged verbal abuse to the Department. Following an administrative hearing, defendant, the Director of the Department, found against Alden. Alden sought administrative review, and the circuit court reversed the Director's ruling. The Director now appeals.

The following evidence was adduced at the administrative hearing. Alden resident Ronald Gray was a schizophrenic with a history of alcoholism and hypertension. Three times per week, Gray was transported to the Neomedica Dialysis Facility to undergo dialysis treatments. At Neomedica's request Gray was accompanied on these trips by Jackie Shannon, a nurse's aide employed by Alden. Gray often had "outbursts" or was otherwise ill-behaved, and Neomedica personnel considered Shannon to be the only one who could control him.

Martha Jackson was a registered nurse and Neomedica unit manager. Jackson had worked at Neomedica since Gray began his treatments there shortly after December of 1988, and had encountered him at the facility over 100 times. Jackson testified that on January 3, 1990, shortly before Gray's treatment, she overheard Shannon making loud statements to Gray while the two were inside a patients' bathroom. Jackson testified that she heard Shannon threaten to "kick [Gray's] teeth in, beat the piss out of him and whip his ass, if he didn't shape up and didn't listen to her." Shannon also warned Gray that his sister had given Shannon permission to do whatever she thought necessary to keep him in line. When Jackson heard this, she knocked on the bathroom door and ordered Shannon to come outside. She then reprimanded her about her shouting and said that her comments were inappropriate. Jackson testified that Shannon apologized for being loud but indicated that Gray drove her to it. Jackson acknowledged that Gray upset people, but told Shannon that such comments were not allowed in the clinic, and that she intended to report the incident to Alden.

Jackson subsequently accompanied Gray and Shannon to the waiting area. Jackson sat down next to Gray and asked Shannon to sit away from him because Jackson believed he looked scared as a result of the occurrence. Jackson testified that Gray was "not his usual self;" he had his hands in front of him and kept looking down and saying "I'll be good." When Jackson asked whether Gray wanted coffee, which he usually accepted, he refused for the first time. Jackson testified that Gray was normally jolly and singing and claiming to be God or the son of God; however, during the ensuing three-hour dialysis, Gray was quiet, withdrawn, frightened, and "not his usual self."

While Gray was in treatment Jackson telephoned Alden about the incident. Jackson testified that she spoke with Victoria Scott, Alden's assistant director of nursing, and told her that Shannon's conduct had distressed Gray, and requested that Shannon no longer be allowed to take him to Neomedica. Jackson also informed Scott of her intention to notify the Department about the incident. Jackson then notified the Department, both by telephone and then by letter on January 15, 1990. ¹ In addition, Jackson sent a follow-up letter about the incident to Alden.

Victoria Scott testified that after speaking with Jackson on January 3, 1990, she reported the matter to Alden's director of nursing, Linda Houston. Later that afternoon, Scott discussed the situation with Shannon and Gray individually. Scott testified that Shannon denied physically abusing Gray or using profanity with him. Similarly, when Scott asked Gray whether anything had happened at the dialysis center, whether Shannon had cursed at him, or if he was afraid of her, Gray said no. According to Scott, Gray seemed fine that afternoon and conducted himself in his usual manner.

Scott reported her discussions with Gray and Shannon to Houston. Thereafter, on January 24, 1990, a meeting was held at Alden about the incident, attended by Scott, Jackson, Jackson's supervisor, and Alden's administrator, Witkins. Scott testified that Jackson exhibited an inexplicably hostile attitude at the meeting.

Linda Houston, Alden's director of nursing, testified that when she asked Shannon about the alleged verbal abuse Shannon appeared "shocked" and denied that anything had happened. Houston also asked Gray about it, and he too responded that nothing had happened. Houston corroborated Scott's testimony that Gray's behavior was not unusual that afternoon.

Houston testified that she reported the matter to Witkins and told him that she was going to prepare an incident report because she "was required" to do so. Witkins, however, instructed her not to prepare the report because the matter was purely hearsay and he wanted to conduct his own internal investigation. Witkins also told Houston that he would notify her if his investigation indicated that a report was warranted.

Houston testified that Shannon was interviewed at the January 24, 1990 meeting and that she denied anything had occurred. Houston indicated that following the meeting, Witkins declined to file a report with the Department even though she advised him to do so; he reiterated to her that the matter was based strictly upon hearsay and circumstantial evidence.

On February 22, 1990, a nurse and an Alden resident saw Shannon strike a patient, Harriet Clapton, on the side of her face with a balled fist. Although Clapton, a schizophrenic, had been acting belligerently and "striking out", she had not hit anyone. Alden employees immediately reported the incident to police. Additionally, the parties stipulated that Alden telephoned the Department and properly filed an incident report on the matter. Linda Houston terminated Shannon's employment that day.

On March 3, 1990, Louise Bergthold, a licensed nurse and investigator for the Department, went to Alden to investigate the alleged verbal abuse against Gray in response to Jackson's correspondence. ² Bergthold examined Alden's files and found nothing about this incident. She also interviewed Houston who stated that when she learned of the incident, her first inclination had been to discharge Shannon. According to Bergthold, Houston had been told by Scott that Jackson was a reliable source and not easily upset. Bergthold also interviewed Witkins who admitted that he had done nothing to reprimand Shannon following the alleged verbal abuse. Bergthold testified that although Witkins considered the matter "all hearsay", he admitted he was unaware that Jackson had actually been present during Shannon's statements to Gray.

Bergthold also interviewed Gray during her investigation and inquired whether Shannon was ever "not nice" to him. Gray responded that Shannon had "yelled" at him and "said she wanted to * * * hit" him while in the bathroom at dialysis. Bergthold testified that in her opinion, Shannon's conduct had upset Gray and caused him emotional or physical injury. Bergthold also believed that this injury was a direct threat to Gray's health, safety, and welfare. Bergthold further found that Harriet Clapton was physically injured by the February 22, 1990, occurrence, and the parties stipulated to this fact.

In May of 1990, the Department issued the notice of violation against Alden regarding the incidents of January 3, 1990 and February 22, 1990. The notice, pursuant to section 3-303(b) of the Act (Ill.Rev.Stat.1989, ch. 111 1/2, par. 4153-303(b)), ordered that Alden prepare and submit a plan of correction relative to each violation. Following the administrative hearing, the hearing officer issued a recommended decision detailing his findings of fact and conclusions of law. The officer concluded that Shannon's reprimands and threats had caused Gray to be withdrawn, frightened and upset, and constituted abuse under section 300.3240(a) of the Minimum Standards. The officer further found that Alden failed to properly report the incident to the Department as required under section 300.3240(d). Finally, he found that the physical abuse of Harriet Clapton constituted a violation of section 300.3240(a). The decision was subsequently adopted in its entirety by the Department.

Alden filed a complaint for administrative review (Ill.Rev.Stat.1990, ch. 110, par. 3-101), and following a hearing, the circuit court reversed the findings of the Department and hearing officer. The instant appeal followed.

On appeal, the Director contends that the court erred in reversing the Department's decision as to all three violations of the Minimum Standards, because the decision was sufficiently supported by the evidence.

Administrative agencies are given wide latitude in exercising the discretion with which they are vested, and their findings of fact are considered prima facie true and correct. (Rubly v. Edgar (1991), 209 Ill.App.3d...