Palmer v. Me. State Bd. of Nursing
| Decision Date | 24 September 2019 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-19-01 |
| Parties | STAGEY PALMER, Petitioner v. MAINE STATE BOARD OF NURSING, Respondent |
| Court | Maine Superior Court |
KENNEBEC, ss
Before the court is Petitioner Stacey Palmer's (Palmer) M.R. Civ. P. 80C Appeal of Final Agency Action against the Maine State Board of Nursing (Board). For the reasons explained below, the court finds that Palmer's Rule 80C appeal should be denied.
The following facts are based on the Certified Administrative Record (R), and the findings of fact made by the Board in its Decision and Order that is under review. Palmer is a registered nurse, or RN, licensed to practice in Maine. (R. 23.) Palmer was employed as a contract nurse by All Med Staffing of New England and was assigned to work at Glenridge, an Alzheimer and dementia specialized division of Maine General Health. (R. 21; 28.) On August 6, 2017, Palmer responded to a call from a patient's ("DH") room. (R. 28.) DH had been ringing the nurses' bell and Palmer told him to visit the nurses' station instead, if he needed assistance. (R. 24, 28.) According to Palmer, DH became defensive, raised his voice, and threatened her with physical violence. (R. 28.) Palmer raised her voice to be heard over DH. (R. 28.) Palmer returned to the nurses' station and shortly thereafter, DH approached the station to request a phone. (R. 29.) DH and Palmer again raised their voices. (R. 24, 29.) CNA Grace Thomas (Thomas) witnessed the interaction, and testified that Palmer "was screaming at the resident" and that Palmer's "body mechanics were very threatening." (R. 91, 93.) Palmer contradicted Thomas' version of the events and testified that she did not yell at the patient. (R. 238-39.)
Palmer denied getting out of her seat, but Thomas testified that she had to step between Palmer and the resident. (R. 24, 29, 91-92.) Thomas does not recall the actual words exchanged between Palmer and the patient, but she testified a second time that Palmer "was definitely screaming." (R. 92, 106)) A supervisor was called to intervene, as the patient returned to his room. The supervisor did not intervene at the time, but questioned those involved approximately an hour after the incident. (R. 38.) April Feltis, Clinical Nursing Supervisor, investigated the incident by interviewing witnesses and writing summaries of the interviews. (R. 24-25, 126-28.)
On September 22, 2017, Palmer was notified of a report filed against her by All Med Staffing. (R. 21.) The Notice of Complaint stated that the reported incident of Palmer yelling at a resident/patient was a possible violation of professional conduct or other Board rules, 32 M.R.S. §§ 2105-A (2)(F), (2)(H).1 (R. 21.) The Notice of Hearing and Second Amended Notice of Hearing, sent on June 21, 2018, and September 21, 2018, cited possible violations of: (1) a rule adopted by the Board for engaging in behavior that exceeded professional boundaries, Board Rules Ch. 4§ 3(U), and; (2) a standard of professional behavior, Provision 1 of the American Nurses Associations' Code of Ethics.2 (R. 18, 428.)
The State filed proposed exhibits on July 9, 2018, pursuant to a July 1, 2018 Scheduling Order. (R. 424, 426.) Palmer's counsel requested a continuance on July 10, 2018. (R. 420-21.) The hearing was continued to September 19, 2018, and the State provided Palmer with its witness list and proposed exhibits on August 22, 2018. (R. 415-17.) Pursuant to a Continuance Order dated September 19, 2018, proposed exhibits, witnesses, and Palmer's objections to the State's exhibits were to be filed by September 27, 2018. (R. 415.) On September 27, 2018, Palmer identified several character witnesses and reserved the right to use the State's witnesses and exhibits. (R. 410.) Palmer did not object to any State exhibits or witnesses. (R. 410.)
The Board conducted the first day of the hearing on October 4, 2018. (R. 70.) Grace Thomas and April Feltis testified, were cross-examined, and were dismissed. (R. 85-206.) The hearing was continued due to an illness, apparently of Palmer's attorney. (R. 225-26, 378.) On October 6, 2018, Palmer's counsel requested six subpoenas for documents. (R. 406-08.) The State objected and Palmer filed a response to the State's objections. (R. 389, 401.) On October 15, 2018, an electronically signed subpoena was sent via email to Palmer's counsel. (R. 367.) In an Order on Subpoenas dated October 25, 2018, the Hearing Officer denied the remaining subpoena requests. (R. 378) In a detailed written Evidentiary Order dated October 29, 2018 the Hearing Officer allowed two of Palmer's exhibits and one identified witness. (R. 372.)
The Board conducted the final day of the hearing on November 1, 2018. (R. 209.) Palmer's counsel moved for a "mis-hearing" and argued the motion after the Hearing Officer had turned off the recording device to clarify the order of the hearing. (R. 217-19.) Palmer's counsel also accused the Acting Board Chair of "huffing and puffing," and moved that the Acting Board Chair and the Hearing Officer both recuse themselves. (R. 217, 225.) The Hearing Officer denied the oral motions. (R. 229-30.) The Acting Board Chair did not recuse herself because she "could continue to preside over the hearing in a fair and impartial manner." (R. 229.)
Palmer testified, was cross-examined, and was dismissed as a witness on November 1, 2018. (R. 209.) At the close of the evidence, Palmer moved to dismiss the allegations, which the Board voted to deny after argument. (R. 323-27.) After closing arguments, the Board began deliberations, but paused to ask Palmer some additional questions. (R. 347.) When deliberations resumed, a majority of the Board voted to find that Palmer had violated 32 M.R.S. 2105-A(2)(F) & (H) and Board Rules Ch. 4 § 3(U). (R. 151.) The Board issued a warning and imposed a one-year probation requiring Palmer to provide any nursing employer a copy of the Decision and Order, submit quarterly reports from a nursing employer, and complete two courses. (R. 16-17.) The Board issued its written decision on December 6, 2018. (R. 17.)
On January 7, 2019, Palmer filed an appeal from the Board's decision pursuant to M.R. Civ. P. 80C, alleging that the Board's action was biased and violated constitutional protections including her rights to due process and freedom of speech.3
The court reviews the Board's decision for abuse of discretion, error of law, or findings not supported by substantial evidence in the record. Connolly v. Board of Social Work Licensure, 2002 ME 37, ¶ 6, 791 A.2d 125. "The court's review is limited to determining whether the agency's conclusions are unreasonable, unjust, or unlawful in light of the record." Imagineering v. Department of Professional & Financial Regulation, 593 A.2d 1050, 1053 (Me. 1991). The court will sustain the administrative decision if, "on the basis of the entire record before it, the agency could have fairly and reasonably found the facts as it did." Seider v. Bd. of Examiners of Psychologists, 2000 ME 206, ¶ 9, 762 A.2d 551. The party seeking to vacate the agency's decision bears the burden of proving that no competent evidence exists to support the agency's decision. Id. Upon judicial review, the court's role is to "determine whether the Board applied the law correctly and whether it exceeded the bounds of its discretion." Lippitt v. Bd. of Certification for Geologists and Soil Scientists, 2014 ME 42, ¶ 16, 88 A.3d 154. "An abuse of discretion may be found where an appellant demonstrates that the decisionmaker exceeded the bounds of the reasonable choices available to it, considering the facts and circumstances of the particular case and the governing law." Id.
Palmer argues that the Board abused its discretion by admitting and relying upon Ms. Feltis's testimony and report because it constituted hearsay and double hearsay. The State asserts that Palmer did not preserve this issue for appeal because she did not object to the State's exhibits or witnesses. "Plaintiffs in a Rule 80C proceeding for review of final agency action are expected to raise any objections they have before the agency in order to preserve these issues for appeal." Forest Ecology Network v. Land Use Regulation Comm'n, 2012 ME 36, ¶ 24, 39 A.3d 74(internal citation omitted). While Palmer did not object to the State's exhibits or witness testimony, she did object to the State's questioning of Ms. Feltis on the basis of hearsay during the hearing. (R. 131.) The Hearing Officer ruled that the testimony, although containing hearsay, was admissible because it was reasonable. (R. 131.)
The standard for the admission of evidence in administrative hearings is whether the "evidence is the kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs." 5 M.R.S. § 9057(2); see Keller v. Maine Unemployment Ins. Comm'n, 477 A.2d 1159, 1161 (Me. 1984) (). While the Law Court has found that double hearsay did not satisfy the evidentiary standard for administrative proceedings if not corroborated by additional evidence, Keller at 1161, the Court has also emphasized that the reliability of hearsay is the determinative factor for assessing reasonableness. Dowling v. Bangor Housing Auth., 2006 ME 136, ¶ 32, 910 A.2d 376. In determining the reliability of hearsay for an administrative proceeding, the court considers "whether the hearsay evidence is corroborated, in whole or part, by live testimony presented at the hearing or an admission; the source of the hearsay, including the potential for bias or motive to fabricate; and whether the hearsay evidence is sufficiently detailed." Id. at ¶ 33 (quoting State v. James, 2002 ME 86, ¶ 15, 797 A.2d 732) (internal quotations omitted). The Hearing Officer did not abuse her discretion in admitting hearsay...
To continue reading
Request your trial