In re Smith, No. 97-417.

• Docket Nº: No. 97-417.
• Citation: 730 A.2d 605
• Case Date: April 09, 1999
• Court: United States State Supreme Court of Vermont

730 A.2d 605

In re Trudy J. SMITH

No. 97-417.

Supreme Court of Vermont.

April 9, 1999.

730 A.2d 607

William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan, Assistant Attorney General, Montpelier, for Appellant

Paul Gillies of Tarrant, Marks & Gillies, Montpelier, for Appellee.

Present DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and CASHMAN, District Judge, Specially Assigned.

SKOGLUND, J.

The State appeals the Washington Superior Court's remand of the Board of Nursing's decision to suspend the nursing license of appellee, home-health nurse Trudy Smith. The superior court remanded the case, ordering the Board to apply a clear and convincing standard of proof, rather than preponderance of the evidence, and on remand to exclude from consideration hearsay evidence presented by the State in the suspension hearing. We reverse and reinstate the Board's decision.

Appellee served as the primary home-health nurse for two elderly patients, L. and M., who accused her of taking some of their prescription Percocet, a narcotic drug, during September and October 1994. At the time of the alleged misappropriations of Percocet, appellee possessed a probationary nursing license from the Board that contained a condition requiring her to remain drug and alcohol-free. On October 17, 1994, prior to L. and M.'s reporting the allegations, the Board had fully reinstated defendant's license. On October 28, 1994, during a regularly scheduled visit from another home-health nurse, who until the spring of 1994 had been their primary nurse, M. reported that some of their drugs were missing and that they suspected appellee took them. The nurse immediately called the home-health supervisory nurse to relay the allegations. The supervising nurse met that same day with the patients to discuss the allegations and then reported appellee to the Board. As a result of the Board's investigation into the allegations, it charged appellee with unprofessional conduct.

On December 13 and 14, 1994, the Board held an evidentiary hearing. Neither L. nor M. testified at the hearing. Appellee's supervisor and the other home-health nurse testified at the hearing regarding L. and M.'s accusations. The supervising nurse stated that M. said she kept her bottle of Percocet by the telephone, moved it to her sock drawer after she noticed some tablets missing, and then she did not notice any more tablets disappearing. L. reportedly conveyed a similar set of facts to the supervising nurse. He kept his bottle of Percocet by the kitchen sink, changed the location to a cupboard next to

730 A.2d 608

the kitchen sink after he had noticed that tablets were missing, continued to find tablets were missing, and then put them in another cupboard in the kitchen behind boxes of pasta, after which no further tablets disappeared. The supervising nurse testified that these patients said appellee would make unscheduled visits on occasion, either to use the telephone or to use the bathroom. According to the supervising nurse, both patients said that on the occasions when she used the bathroom she would wash her hands at the kitchen sink even though there was a sink in the bathroom. She also testified to the fact that patient M. was hospitalized on October 8 and returned to home-health care on October 14

The patients' former primary home-health nurse testified concerning their physical ailments and current health status. According to her, M.'s medical condition kept her in the apartment and, although L. did sometimes go out, it would have been difficult for him to make it to the hearing given the cold weather. The nurse described a home-health visit on October 18, 1994, in which L. displayed uncharacteristic anger and ranted about the home-health nurse service. She stated that it seemed to her a disproportionate reaction to the scheduling confusion that had arisen that day. She then related the circumstances in which M. first reported her suspicions of appellee and what M. had specifically said. Further, she testified that M. appeared distressed by making the report and said that M. stated she cared for the appellee and wanted her to get help. Finally, the nurse testified to the patients' continued emotional distress and decline in physical health since they had reported their suspicions of appellee.

The State adduced further testimony regarding L. and M.'s allegations from the investigator on the case. The investigator spoke to L. and M. in the presence of the supervising nurse. L. reportedly related to him the following incident. L. stated that, to discover who was taking their Percocet, he and M. devised the plan to plant two tablets near the telephone in M.'s bedroom and to check if they were still there each time after a visitor left. While M. was in the hospital, appellee made an unscheduled visit to the apartment. She used the telephone, and, after she had left, L. found that the two Percocet were gone. The investigator in addition testified to his review of L. and M.'s pharmacy records, confirming M.'s Percocet prescription and clarifying that what L. had sometimes referred to as Percocet was actually a prescription for Propacet, another narcotic drug.

In his opening statement, appellee's attorney stated that "evidence as it will be presented to you today lacks a core piece of evidence; that is, the presence of L. and M." He went on to explain hearsay under the rules of evidence and the hearsay rule for administrative proceedings, then stating that the testimony the State presented would test these rules. Nonetheless, the witnesses testified to the facts detailed above without objection from appellee to the specific questions or answers. In fact, during the testimony appellee raised only one objection — when the State questioned whether M. told the home-health nurse what L.'s feelings were about the disclosure.

Applying a preponderance of the evidence standard of proof, the Board found that the appellee took two Percocet from L. and M.'s apartment during the week of October 8, 1994. The Board concluded that: appellee's unprofessional conduct was of a character likely to harm the public; diversion of the Percocet was a violation of the conditions on appellee's license at the time of the incident; and, based on a review of her pharmacy records over the past eight years, appellee had an active, untreated addiction to narcotics. The Board ordered appellee's license suspended, conditioning reinstatement on fulfillment of certain conditions.

Appellee appealed the Board's decision to an appellate officer, contending there

730 A.2d 609

was insufficient evidence to support the Board's findings and conclusions and attacking the Board's reliance on hearsay evidence. Without reaching the hearsay issue the appellate officer upheld the Board's conclusion that appellee had an active, untreated addiction to narcotics, but reversed the Board's other conclusions. By characterizing the burden of proof in a "theft" case as requiring more than evidence of nonexclusive opportunity to take the object later found missing, which the Board found the State had not even shown, and by citing to a criminal case in support, the appellate officer appeared to employ the criminal law standard of proof: beyond a reasonable doubt. Both parties appealed to the superior court

Before the superior court, appellee continued to contest the Board's conclusions on sufficiency of the evidence grounds. That is, appellee argued insufficient evidence existed to uphold the Board's conclusion appellee had an active, untreated addiction. By contrast, the State appealed the appellate officer's use of the criminal law standard of proof, arguing that the officer should have upheld the Board's decision based on the standard of proof the Board had applied, that is, preponderance of the evidence. In addition, the State asked the court to address the hearsay issue. The State maintained that appellee waived any challenges to admissibility by failing to adequately object to the presentation of the hearsay statements at the time the Board heard the testimony.

The superior court rejected both the standard of proof applied by the appellate officer and the standard of proof applied by the Board, holding instead that, given the seriousness of the disciplinary process and the potential loss of livelihood, the Board should have applied a clear and convincing evidence standard of proof. The court therefore remanded the case back to the Board for a new evidentiary hearing. At the parties' request and in the interest of judicial economy, the court addressed the question of whether the hearsay evidence presented at the first hearing would be admissible if the Board heard the matter again on remand. The court ruled that on remand the hearsay statements would be inadmissible.

The State's appeal to this Court followed. On appeal, the State asserts, as it did before the superior court, that the Board's decision applying the preponderance of evidence standard to the disciplinary hearing should have been upheld. Further, the State again maintains appellee waived her hearsay objections. Finally, it continues to argue that, employing the preponderance of evidence standard, sufficient evidence existed to support the Board's finding appellee took two Percocet tablets from the patients' apartment during the week of October 8, 1994.

We first address this Court's jurisdiction to consider the appeal as it was not taken from a final judgment. See Huddleston v. University of Vt., 168 Vt. ___, ___, 719 A.2d 415, 417 (1998) (superior court's remand to university did not resolve controversy between parties and therefore was not final judgment); In re Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (no final judgment where environmental court remanded matter for town's review of permit application). Although the State failed to request permission to take an interlocutory appeal, see V.R.A.P. 5., we have...