Stone v. Mo. Dep't of Health

• Decision Date: 19 July 2011
• Docket Number: No. SC 91219.,SC 91219.
• Citation: 350 S.W.3d 14
• Parties: Catherine Ann STONE, Respondent,v.MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Appellant.
• Court: Missouri Supreme Court

350 S.W.3d 14

Catherine Ann STONE, Respondent,

v.MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Appellant.

No. SC 91219.

Supreme Court of Missouri, En Banc.

July 19, 2011.

Edwin R. Frownfelter, Attorney General's Office, Jefferson City, for Appellant.Mariam Decker and Julia S. Grus, Oliver Walker Wilson, Columbia, for Respondent.PATRICIA BRECKENRIDGE, Judge.

Catherine Ann Stone seeks review of the decision of the Department of Health and Senior Services to place her on the employee disqualification list (EDL) for 18 months after it found that she knowingly abused a patient. She argues that there was insufficient evidence to support the decision because expert testimony is required to prove that she knowingly abused a patient with dementia and mental disabilities. She also argues that the department deprived her of due process of law by allegedly failing to provide notice of a violation of 19 CSR 30–88.010(13) and (21) before finding her in violation of this regulation.

The department's lay witnesses' testimony was substantial and competent evidence that Ms. Stone knowingly abused a patient when she physically restrained the patient in an attempt to force-feed medication to the patient. In addition, the department provided her with notice of her violations. Although the regulation mentioned in the hearing officer's findings was not cited in the notice to Ms. Stone of her placement on the EDL, the regulation was not the basis of the department's decision. Therefore, her due process rights were not violated. The decision of the department is authorized by law and supported by substantial and competent evidence. The judgment of the trial court reversing that decision, therefore, is reversed.

Factual and Procedural Background

Ms. Stone is a licensed practical nurse. She was employed as a charge nurse at Maries Manor, a skilled nursing facility in Vienna, Missouri. On November 3, 2007, she was in the dining room dispensing medication to patients. One patient who required medication was K.S. K.S. was diagnosed with dementia and mental disabilities, described as mental retardation. K.S. often would become agitated and combative when her medication was administered. She would hit, kick, bite, scream, and curse.

K.S.'s individualized care plan, located near the nurses' station, instructed nurses to leave K.S. alone if she reacted negatively to a nurse attempting to give her medication. Her individualized care plan directed health care providers to walk away or have K.S. removed from the area and taken to her room until she calmed down. The nurse was to attempt to administer the medication later or ask someone else to make an attempt.

When Ms. Stone attempted to administer medication to K.S. on November 3, K.S. knocked the wooden medication spoon away. K.S. swung her right hand and arm and hit Ms. Stone in her left shoulder. Ms. Stone instructed Penny Foster, a nursing assistant, to restrain K.S.'s arm to prevent K.S. from hitting Ms. Stone again. Ms. Stone then forced medication into K.S.'s mouth with a small, wooden ice cream spoon while pushing her head forcefully against her wheelchair.

Andrea Delinger, a dietary aid at the facility, was present in the kitchen of the dining room when the incident began. She came out of the kitchen when she heard K.S. screaming differently than usual and observed Ms. Stone restraining K.S. and forcing medication into her mouth. She saw that K.S. was crying and screaming and was very upset and scared. She refused Ms. Stone's direction to remove K.S. from the dining room and was able to calm K.S. so she could be fed. She and Ms. Foster reported the incident to Joy Gunter, director of nursing of the facility, on November 7, 2007. Ms. Stone was suspended immediately.

Ms. Gunter spoke to K.S., who did not remember the incident and stated that she did not like taking her medication. After the facility's investigation, Ms. Gunter concluded that “there was restraint posed upon [K.S.] creating safety, health possible harm.” Maries Manor terminated Ms. Stone on November 8, 2007.

After a call was placed to the department's central registry hotline on November 7, 2007, Mary Jane Garbin, a department facility investigator, began investigating the abuse allegation. Ms. Garbin concluded that Ms. Stone held K.S. inappropriately to give her medication and that Ms. Stone's actions constituted abuse.

The department sent Ms. Stone a notice of violation on February 19, 2008. The notice informed Ms. Stone that the department intended to place her name on the EDL for 18 months. The EDL is a record of the names of person who are or who have been employed in any facility and who have been finally determined by the department to have recklessly or knowingly abused or neglected a resident in violation of section 198.070.13.¹ All persons, corporations, organizations, or associations that receive the EDL are prohibited from knowingly employing any person who is on the EDL. Section 660.315.12.

Ms. Stone challenged the department's decision to place her name on the EDL and requested a hearing, which was conducted August 28, 2008. At the hearing, Ms. Garbin, Ms. Gunter, Ms. Foster, and Ms. Delinger testified on behalf of the department. Ms. Stone and Deborah Kay Pruitt O'Shey, a licensed practical nurse at Maries Manor, testified on Ms. Stone's behalf.

Ms. Garbin testified about her investigation as director of nursing for Maries Manor and the interviews she conducted with Maries Manor staff, including Ms. Delinger, Ms. Foster, and Ms. Stone. Ms. Garbin testified that she found Ms. Delinger and Ms. Foster credible because their interviews matched their written reports that had been submitted to the facility and provided to Ms. Garbin. Ms. Garbin did not interview K.S. because of her cognitive state. Ms. Garbin did review her medical records, which show that K.S. is a difficult resident who yells and hits staff members. After her investigation, Ms. Garbin concluded that Ms. Stone held K.S. inappropriately to give her medicine. She testified that she believed that Ms. Stone's actions constituted abuse. When asked if she believed if Ms. Stone's actions toward K.S. caused harm to her, she said, “I don't believe there was any harm.”

Ms. Gunter testified regarding her investigation for the department. She testified that K.S.'s care plan, located near the nurses' station, instructed nurses to leave K.S. alone if she reacted negatively to a nurse attempting to give her medication. Her individualized care plan required health care providers to walk away or have K.S. removed from the area and taken to her room until she calmed down. The nurse was to attempt to administer the medication later or ask someone else to make an attempt. Ms. Gunter also stated that Ms. Stone had received training on resident abuse and residents' rights. Ms. Gunter said that Sandra Zimmer, a licensed practical nurse, was present in the dining room during the incident and she stated that she did not see any contact between Ms. Stone and K.S. Ms. Gunter also testified that she was not aware of any conflicts between Ms. Stone and Ms. Delinger.

Penny Foster testified that Ms. Stone instructed her to hold K.S.'s hand down. Ms. Foster stated that K.S. seemed upset. Ms. Foster testified that K.S. routinely tried to spit out her medicine. Ms. Foster witnessed K.S. hit Ms. Stone repeatedly. K.S. also attempted to “buck” herself out of her wheelchair. Ms. Foster testified that K.S. did not want to take her medicine and was in a bad mood that day:

Administrative Law Judge: Alright. And did you perceive that [K.S.] was upset by the actions of Ms. Stone and by herself was that the reason of her [angst] or was it because she didn't want to take her medication?

Ms. Foster: She just didn't want to take her medication. She was in a bad mood that day.

She testified that, in situations in which K.S. was combative, other nurses would walk away from K.S. and return to her to administer medication after she had calmed down. Ms. Foster admitted that she received a two-day suspension for failing to immediately report the incident to her supervisor.

Ms. Delinger testified that she was in the kitchen and heard K.S. screaming. K.S. frequently screamed, but her screaming was louder than normal, so Ms. Delinger stepped out of the kitchen. Ms. Delinger observed Ms. Stone forcefully holding K.S.'s forehead and pushing her head against her wheelchair and Ms. Foster holding K.S.'s arm. She saw Ms. Stone “force” medicine into K.S.'s mouth. Ms. Delinger testified that she observed that K.S. was “very, very upset. She was screaming, she was crying, she was being combative. You could tell that she was very scared. It was very upsetting.” Ms. Delinger instructed Ms. Stone to let K.S. calm down. Ms. Stone wanted K.S. removed from the dining room, but Ms. Delinger refused to let K.S. be removed. She soothed K.S. and got her to finish eating her meal. Ms. Delinger received a two-day suspension for waiting two days before reporting the incident.

Ms. Stone testified that she and Ms. Delinger had had a disagreement the day before the incident with K.S. Ms. Stone had requested food for a patient with low blood sugar and Ms. Delinger refused to give her food. Ms. Stone testified that she wrote up Ms. Delinger for this behavior.

Ms. Stone also testified that, on the evening of November 3, she approached K.S. with her medication. K.S. struck her in her left arm with enough force to cause a large bump. She stated that her left arm was immediately in pain and that she could not have used it to forcefully hold back K.S.'s forehead. She denied forcing medication into K.S.'s mouth. She testified that Ms. Foster was patting K.S.'s arm, not restraining it. Ms. Stone asked Ms. Foster and other aides to take K.S. back to her room. Ms. Delinger refused to let K.S. leave. Ms. Stone wrote a complaint about Ms. Delinger's usurping her authority and slid it under Ms. Gunter's...