Raven v. Dep't of Soc. & Health Servs.

• Decision Date: 27 March 2012
• Docket Number: No. 40809–1–II.,40809–1–II.
• Court: Washington Court of Appeals
• Parties: Resa RAVEN, Respondent, v. DEPARTMENT OF SOCIAL & HEALTH SERVICES, Appellant.

273 P.3d 1017

Resa RAVEN, Respondent,

v.DEPARTMENT OF SOCIAL & HEALTH SERVICES, Appellant.

No. 40809–1–II.

Court of Appeals of Washington, Division 2.

March 27, 2012.

Catherine Roubal Hoover, Attorney General of Washington, Olympia, for Appellant.

Jeff B. Crollard, Crollard Law Office, PLLC, Seattle, for Respondent.

Carol S. Vaughn, Thompson & Howle Downtown Office, Karen Marie Thompson, Attorney at Law, Seattle, Amicus Curiae on behalf of Washington Association of Profes.Susan L. Kas, Disability Rights Washington, Seattle, Amicus Curiae on behalf of Disability Rights Washington.ARMSTRONG, J.

¶ 1 The Department of Social and Health Services (DSHS) found that Resa Raven,¹ a court-appointed limited guardian, neglected her ward, Ida, by failing to provide the medical services Ida needed to maintain her health and prevent harm and pain to her. Raven appealed and the administrative law judge found no neglect. The DSHS Board of Appeals (Board) ² reversed the administrative law judge, concluding that Raven neglected Ida by inattention and by failing to ensure that Ida's medical needs were met under the Abuse of Vulnerable Adults Act, chapter 74.34 RCW. The superior court reversed and awarded Raven attorney fees. DSHS now appeals.

¶ 2 We affirm the Board, thereby reversing the superior court. Although Raven's duty did not include guaranteeing effective care and treatment, it did include making every reasonable effort to provide the care Ida needed. And the findings support the Board's conclusion that Raven failed to meet her duty. We also reject Raven's argument that DSHS had to prove neglect by clear, cogent, and convincing evidence, rather than by a preponderance of the evidence. Finally, because DSHS's action was substantially justified, we reverse the trial court's award of attorney fees to Raven.

FACTS

¶ 3 Ida ³ was born on April 15, 1921, and died on April 24, 2007. In 1996, Ida fell and fractured her fibula, leaving her bedridden. Her leg muscles atrophied and she was no longer able to ambulate or sit up.

¶ 4 Ida became physically fragile, requiring assistance with most activities of daily living. She suffered from periodic urinary tract infections, ongoing rheumatoid arthritis, congestive heart failure, and allergies. She had muscle contractures that locked her legs in a splayed position. As of 2001, she was incontinent of bladder and bowel. She also experienced deteriorating pressure ulcers ⁴ associated with poor nutrition, lack of turning, and incontinence. These conditions caused Ida severe and chronic pain. In addition to her physical ailments, Ida had symptoms of dementia and hallucinations.

¶ 5 Catholic Community Services (Catholic Services) provided in-home care to Ida. DSHS's Area Agency on Aging (Aging Agency) provided case management, and Ida's husband and daughter provided additional care. Ida was often hostile, uncooperative, and physically abusive to her care providers. Her aggressive behavior was exacerbated when her husband failed to consistently administer her pain medication.

¶ 6 Ida resisted medical treatment between 1996 and 2001, although the reasons were not clear. A consultant noted on December 8, 2001, that she had a history of hallucinations and was disoriented. He also commented that home care was difficult because of her “personality” and because she was “very unclean when she came to the hospital” and was covered in stool and urine. Administrative Record (AR), Ex. 95 at 2113. Still, after an investigation in which it found some paranoia, Adult Protective Services (Protective Services) did not substantiate allegations of self-neglect.

¶ 7 In 2001, Ida refused surgery for her glaucoma and cataracts. In 2003, she refused to see a doctor when her dark stool suggested internal bleeding, stating that she did not care and that she wanted to die. Later that year, her daughter called the police so a doctor could inspect Ida's infected foot. Ida's primary care physician discharged her as a patient when she refused to come to his office.

¶ 8 In January 2004, Protective Services found self-neglect in a second investigation. DSHS petitioned for guardianship based on its concerns that Ida was refusing medical care and neglecting herself, and because her husband and daughter were unable to make competent decisions for her. Ida told Protective Services that she was refusing treatment and care because “she believed that her husband and caregiver had run away to California and left imposters behind.” AR, Ex. 71 at 2055.

¶ 9 The superior court appointed a guardian ad litem (GAL), Jan Carrington, who arranged a mental health professional to evaluate Ida. The mental health professional documented that Ida was delusional and believed that her husband of 18 years was not her husband, that the emergency room doctor was not a doctor, and that the hospital was not St. Peter's. Carrington concluded that Ida needed a professional guardian with a mental health background who could reasonably assess Ida's needs and make competent health care decisions.

¶ 10 Based on the GAL's recommendation, the superior court appointed Raven as Ida's limited guardian on March 12, 2004. Raven is a licensed mental health counselor and a professional guardian. Ida was Raven's first ward as a guardian. The trial court gave Raven authority to (1) consent to or refuse medical treatment and (2) decide who would provide care and assistance. The court also granted Raven “[t]he power and duties of the guardian ... as required by RCW 11.92.” AR, Ex. 25 at 1510.

¶ 11 After her appointment, Raven reviewed Ida's records, including the GAL's report, the Providence St. Peter Hospital records, and the court order appointing her. She discussed Ida's psychological problems with the GAL and met with the Aging Agency and Catholic Services personnel involved in Ida's care, along with Ida's daughter and husband. Raven concluded that Ida was variable in her responses to medical treatment but had consistently resisted nursing home placement. Raven visited Ida with some frequency during this investigative phase of their relationship but her home visits subsequently decreased, especially when Ida was under hospice care. Raven testified that she maintained a log of some, but not all, of her actions taken on Ida's behalf.

¶ 12 In November 2004, the Aging Agency comprehensively assessed Ida's condition and treatment plan. At the time, Ida had 10 pressure ulcers and the Aging Agency recommended bi-hourly repositioning to prevent further skin deterioration. The caregivers remained reluctant to turn her more than once or twice a day, however, because of Ida's intense pain. The assessment noted the continuing problems of rheumatoid arthritis, congestive heart failure, allergies, and angina.

¶ 13 In August 2005, a registered nurse from the Aging Agency examined Ida and concluded that she should be taken to the emergency room because of open sores on her leg, a possible urinary tract infection, and contractures of the leg. Raven stayed with Ida in the emergency room and she participated in planning Ida's discharge. Ida was discharged under hospice care because her life expectancy was considered to be less than six months. Raven selected Assured Home and Hospice as the hospice provider. Through hospice, Ida obtained a new primary care physician.

¶ 14 On October 19, 2005, an Aging Agency nurse assessed Ida's health and found only two pressure ulcers. On October 25, 2005, a hospice nurse spent “significant time” explaining to Ida's primary caregiver from Catholic Services the need to frequently turn Ida and control her pain. In her report, the nurse noted that the Catholic Services caregiver resisted these instructions because she believed that repositioning once a day was sufficient for skin care. The nurse concluded that Ida needed additional staff to reposition and medicate her if she was to remain at home.

¶ 15 On November 17, Raven conferred with the Aging Agency case manager, hospice nurse, and social worker to discuss concerns about Catholic Services' cooperation and Ida's husband's resistance to giving Ida pain medicine. Raven decided that they should wait until after the holidays to discuss changes to the situation to avoid additional stress.

¶ 16 Ida's skin condition was deteriorating in December 2005. In January 2006, the hospice nurses documented several painful stage II pressure ulcers. Raven and all the health care providers attended a care conference on January 10, 2006. Raven's notes acknowledge that Ida's pressure ulcers were worsening. The team agreed to seek additional support so that Ida could receive more hours of care and it could train the Catholic Services caregivers on techniques for turning Ida.

¶ 17 In February 2006, Ida's Aging Agency case manager asked Raven to fill the additional hours with independent care providers. Raven responded that she did not want to because she wanted providers who the agency supervised. The case manager then pointed out that the current plan was not working because they did not have enough workers. Raven replied that “we'd have to do the best we could with what we have.” Administrative Record (AR), Verbatim Report of Proceedings (VRP) at 58. Raven explained that she was still determining whether Catholic Services could meet Ida's health care needs, but she acknowledged the possibility that Ida might need independent providers at some point.

¶ 18 Hospice discharged Ida as a client on May 16, 2006, citing difficulties with Ida's husband. Ida had become more agitated because he had not been medicating her as needed. Ida's hospice doctor quit the same day despite Raven's request that he keep Ida as a patient.

¶ 19 On May 30, 2006, Raven petitioned Thurston County Superior Court for direction on how to proceed with Ida's care. At the hearing, the superior court initially stated it believed that Ida needed institutional care and that the statute and appointment order authorized Raven to...