Download Published - North Carolina Office of Administrative Hearings

STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 DHR 6196
COUNTY OF LENOIR
Kelvin Donelle Lewis,
Petitioner,
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vs.
Health Care Personnel Registry,
Nurse Aide Registry,
Respondent.
DECISION
THIS MATTER came on for hearing before the undersigned, Joe L. Webster,
Administrative Law Judge, on January 21, 2010, in New Bern, North Carolina.
APPEARANCES
For Petitioner:
pro se
For Respondent:
Juanita B. Twyford
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether Respondent substantially prejudiced Petitioner’s rights; and acted erroneously, failed to
use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law when
Respondent notified Petitioner of its intent to enter his name with a finding of neglect and fraud
against a facility in the Health Care Personnel Registry based upon a substantiation of the
following allegations:
On or about April 29, 2008, Petitioner, health care personnel, employed at
a state psychiatric facility, Cherry Hospital, in Goldsboro, North Carolina,
neglected a Patient, (SS), by failing to provide proper care to the patient,
including not properly performing 15 minute precautions, resulting in
physical harm.
On or about April 29, 2008, Petitioner, health care personnel, employed at
a state psychiatric facility, Cherry Hospital, in Goldsboro, North Carolina,
committed fraud against a facility by intentional deception by falsifying
two entries at 3:00 a.m. and 3:15 a.m. on a 15 minute precaution flow
sheet for Patient SS with unauthorized benefit to Petitioner.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. §150B-23
42 CFR § 488.301
10A N.C.A.C. 130.0101
PETITIONER’S WITNESSES
Petitioner
Nathaniel Carmichael
RESPONDENT’S WITNESSES
Nathaniel Carmichael
Mona Williamson
Petitioner
Pamela Anderson
EXHIBITS
Respondent’s Exhibits 1-13 were admitted
Respondent’s Exhibit #13 is an encrypted surveillance DVD admitted under seal.
BASED UPON careful consideration of the sworn testimony of the witnesses presented
at the hearing and the entire record in this proceeding, the Undersigned makes the following
findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence
and has assessed the credibility of the witnesses by taking into account the appropriate factors for
judging credibility, including but not limited to the demeanor of the witness, any interests, bias,
or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember
the facts or occurrences about which the witness testified, whether the testimony of the witness is
reasonable, and whether the testimony is consistent with all other believable evidence in the case.
From the evidence presented, the undersigned makes the following:
FINDINGS OF FACT
1.
At all times relevant to this matter Cherry Hospital in Goldsboro, North Carolina
was a state psychiatric facility, and therefore subject to N.C. Gen. Stat. § 131E-256.
2.
At all times relevant to this matter Petitioner, Kelvin Donelle Lewis, was
employed at Cherry Hospital as a Health Care Technician I (HCT) and was therefore subject to
N.C. Gen. Stat. § 131E-256.
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3.
Pursuant to N.C. Gen Stat. §131E-256, Respondent is responsible for
investigating allegations of patient abuse, neglect, misappropriation of property, diversion of
drugs, and fraud by health care personnel.
4.
Respondent received a 5-Working Day Report from Cherry Hospital dated June
24, 2008. The report alleged that on or about April 29, 2008, Petitioner neglected Patient SS by
failing to meet the patient’s basic needs, nutrition, hydration, toileting and monitoring, 24 hours
prior to the patient’s death.
5.
Pamela Anderson, RN, (“Anderson”) is the Eastern Regional Supervisor for the
Health Care Personnel Registry. Health Care Personnel Registry nurse investigators are charged
with investigating allegations against health care personnel. Accordingly, Anderson received the
allegation report from Cherry Hospital. On August 21, 2008, Anderson determined that the
allegation warranted investigation by the Health Care Personnel Registry.
6.
By letter dated August 21, 2008, Anderson notified Petitioner that Respondent
would be investigating the allegations that he had neglected a patient at Cherry Hospital and
committed fraud against Cherry Hospital on or about April 29, 2008, and that his name would be
listed on the Health Care Personnel Registry pending investigation of the allegations. The letter
gave notice of appeal rights.
7.
Anderson conducted an investigation, and gathered information from the
following sources: on-site visits to the facility; interviews with Petitioner, witnesses, and staff; a
review of Petitioner’s personnel file; a review of Patient SS’s medical records; and, a review of
the facility records and documentation.
8.
Anderson considered the credibility and consistency of the information she
gathered during the course of her investigation and completed an Investigation Conclusion
Report. Anderson substantiated the allegation that Petitioner neglected Patient SS by failing to
provide proper care to the patient, including not properly performing 15 minute precautions,
resulting in physical harm. In addition, Anderson substantiated the allegation that Petitioner
committed fraud against a facility by intentional deception by falsifying two entries at 3:00 a.m.
and 3:15 a.m. on a 15 minute precaution flow sheet for Patient SS with unauthorized benefit to
Petitioner.
9.
Petitioner was notified by letter dated May 6, 2009, that the allegations of neglect
and fraud were substantiated. Attached to the letter were the Entries of Findings, which are the
substantiated findings as they will appear on the Health Care Personnel Registry. The letter also
notified Petitioner of his appeal rights.
10. Petitioner timely filed a petition for contested case with the Office of Administrative
Hearings contesting the listing of the allegations of neglect and fraud on the Health Care
Personnel Registry. Petitioner challenges the substantiated findings, saying that he did not
neglect Patient SS and did not commit fraud against Cherry Hospital.
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11.
Anderson reviewed Patient SS’s file to gain an understanding of his physical and
mental condition at the time of the incident. SS was a 50 year old male admitted to Cherry
Hospital on involuntary commitment during the early morning hours of April 26, 2008, after he
was found walking naked in the road and appeared to be responding to internal stimuli. Patient
SS had previous admissions to Cherry Hospital, and a prior diagnosis of Bipolar Disorder.
Patient SS had also been diagnosed with COPD and hyperlipidemia, and his medical history
included a hip replacement in 1975. On admission, Patient SS was oriented only to person,
demonstrated manic symptoms with significant psychosis, and had a urine drug screen positive
for benzodiazepines. Admission orders included: assure safe physical environment; vital signs
twice daily; 1:1 precautions for 24 hours and then every 15 minutes; lab work; and medications.
On the afternoon of April 28, 2009, an order was written to increase Patient SS’s fluids to 8
ounces every two hours for three days due to lab results showing increase BUN and creatinine
levels. On April 28, 2008 at about 8:20 p.m., nursing staff administered the Heimlich maneuver
on Patient SS after he choked on his medication and fell backward hitting his head on the floor.
A Physician’s Assistant assessed Patient SS about 10:20 p.m., and ordered vital signs with a
pulse oximeter reading every six hours for 24 hours. On April 29, 2008 at about 9:00 p.m.,
nursing staff called a Code Blue because Patient SS was unresponsive. Patient SS was
transported by EMS to the hospital emergency room in cardio-pulmonary arrest, and was
pronounced dead at 10:01 p.m. According to the Medical Examiner’s Report, lymphocytic
myocarditis was the cause of death.
12.
Mona Williamson, RN, is the Nurse Manager for Building U2 at Cherry Hospital.
Ms. Williamson initiated a facility investigation to review the basic care needs provided to
Patient SS 24 hours prior to his death. As part of the facility investigation, Ms. Williamson
reviewed the video surveillance of Building U2 3 West at Cherry Hospital to observe Patient SS
and staff on April 28-29, 2008, and supervised the creation of a timeline of activities tracking the
video surveillance. In addition, Ms. Williamson reviewed Patient SS’s medical record and
assisted in interviewing staff. Along with Larry Dawson, Patient Advocate, Ms. Williamson
completed an Abuse, Neglect and/or Exploitation Investigation Report.
13.
The facility determined that Petitioner neglected Patient SS, and willfully violated
a known or written work rule. Specifically, the facility found that Petitioner falsified two entries
on Patient SS’s 15 Minute Precaution Flow Sheet on April 29, 2008 at 3:00 a.m. and 3:15 a.m.
Further, the facility found that Petitioner failed to adhere to the Quiet Time on Ward Policy by
turning on the TV at 2:12 a.m. and watching it intermittently for the remainder of the shift.
14.
Petitioner was the HCT in charge at Building U2 3 West at Cherry Hospital
during the third shift from 11:30 pm on April 28, 2008 until 7:30 a.m. on April 29, 2008. Aimee
Clark, RN, Jennifer Kilpatrick, HCT, and Anthony Green, HCT, were staff assigned to work on
the unit that night with Petitioner. Petitioner is first seen in the video surveillance of Building
U2 3 West at Cherry Hospital at 01:13:19 on April 29, 2008.
15.
Ms. Williamson reported that Petitioner was assigned to provide 15 minute
precaution checks on Patient SS from 11:00 p.m. on April 28, 2008 to 7:00 a.m. on April 29,
2008. Ms. Williamson explained that HCTs are trained to visually observe the patient and assess
them for safety every 15 minutes when the patient is on 15 minute check precautions. The
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purpose of the 15 minute check is to check the patient’s location and behavior and assure that the
patient is safe.
16.
On the video surveillance, Ms. Williamson identified Patient SS sitting in the
chair in the dayroom at the start of Petitioner’s shift at 11:00 p.m. on April 28, 2009. Patient SS
can be seen sitting in the chair in the dayroom during Petitioner’s shift until 7:30 a.m. on April
29, 2008.
17.
On the video surveillance, Petitioner makes his first appearance in the dayroom at
1:13 a.m. Petitioner documented that Patient SS was asleep in the dayroom every 15 minutes
from 11:45 p.m. through 2:45 a.m. At 3:00 a.m. and at 3:15 a.m., Petitioner documented that
Patient SS was asleep in his room. However, the video surveillance shows that Patient SS is
sitting in the chair in the dayroom at 3:00 a.m. and at 3:15 a.m. From 3:30 a.m. to 7:15 a.m.,
Petitioner documented every 15 minutes that Patient SS was in the dayroom asleep.
18.
Reviewing the video surveillance, Anderson observed that Petitioner was not
performing 15 minutes checks on Patient SS in accordance with Cherry Hospital policy and
procedure. The video shows that Petitioner did not enter the dayroom where Patient SS was
sitting until some two hours after the start of his shift. The video also shows that Petitioner
began watching TV at 2:12 a.m., and is not seen observing Patient SS until 3:33 a.m. Petitioner
documented Patient SS was in his room asleep at 3:00 a.m. and at 3:15 a.m. when the video
shows that Petitioner SS is sitting in the dayroom. Petitioner continues to watch television, and
intermittently goes toward the nursing station or down the hall to bedrooms during the shift.
The video does not show Petitioner offering Patient SS fluids during the shift even though
Patient SS had an order to increase fluids to 8 ounces every two hours. The video does not show
attempts by Petitioner to encourage Patient SS to go to his bed or to the bathroom during the
shift. The video does show that Patient SS unsuccessfully attempted to get out of the chair at one
point. The video shows that Petitioner interacted only once with Patient SS during the entire
shift.
19.
Petitioner had been employed at Cherry Hospital as a HCT since September 8,
2000. During his employment, Petitioner completed orientation and in-service trainings.
Anderson reviewed facility protocols, policies, procedures, and training materials to determine
the expectations of personnel. After reviewing the facility protocols, policies, procedures, and
training materials along with Petitioner’s personnel file, Anderson determined that Petitioner had
the requisite training and had demonstrated the skills necessary to perform his job as a HCT at
the facility.
20.
During the facility investigation concerning Patient SS, Petitioner provided two
written statements. In each of these statements, he wrote that he was assigned to perform 15
minute checks on Patient SS, and that Patient SS remained in the chair in the dayroom the entire
night shift April 28-29, 2008. Petitioner also wrote that he asked Patient SS several times
during the shift if he wanted to go to bed.
21.
During the Health Care Personnel Registry investigation, Petitioner confirmed
that he documented that Patient SS was in his room asleep at 3:00 a.m. and 3:15 a.m. on April
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29, 2008. When Anderson asked Petitioner why he had documented this, Petitioner replied that
Patient SS must have gotten up and gone to bed during this time. Petitioner reported, “I would
not have documented anything he did not do.” This information is inconsistent with the video
and with other staff interviews. The video shows that Patient SS never left the chair in the
dayroom the entire shift. The other staff who worked third shift with Petitioner on April 28-29,
2008 all confirmed that Patient SS sat in the chair in the dayroom the entire shift.
22.
At hearing, Petitioner viewed the video surveillance for the first time. Petitioner
agreed that that he is first seen in the video surveillance at 1:13 am on April 29, 2008. Petitioner
maintains that he had been in the nursing station, outside the video’s range, doing paperwork
since the start of his shift at 11:00 p.m. According to Petitioner, he could see Patient SS from
the nursing station.
23.
At hearing, Petitioner agreed that Patient SS remains in the chair in the dayroom
at 3:00 a.m. and at 3:15 a.m. on April 29, 2008. Petitioner maintains that he simply made a
mistake when he documented that Patient SS was in his bedroom asleep on the 15 minute
precaution sheet. Petitioner points out only two checks on the precaution sheet are erroneous in
support of his contention that the errors were not intentional. Although Petitioner is not seen
with the clipboard charting precaution checks in the video, Petitioner responded that he
documented the checks as they were done.
24.
As Ms. Williamson explained, the precaution flow sheet is a medical document
relied upon by staff in assessing patients. The erroneous information documented by Petitioner
makes it appear that Patient SS was able to ambulate from the dayroom to his bedroom and from
his bedroom back to the dayroom. This information could be significant when assessing Patient
SS’s status over the 24 hour period prior to his death.
25.
Petitioner contends that he went to shift change report when he started his shift on
April 28, 2008. Petitioner explained that any change in the patient’s status is reported to the oncoming shift during this report. Information that Patient SS had choked and been assessed by the
PA was passed along to the on-coming shift based upon information Anderson reviewed during
her investigation, However at hearing, there was no evidence confirming that this information
was provided to Petitioner at the start of his shift on April 28, 2008. Petitioner does agree that a
patient choking, a change in the frequency of vital sign, and the need for increase fluids for a
patient are all things that would be reported during shift change, but he has no memory of
hearing that Patient SS required the Heimlich when he choked on his medicine that evening, that
a PA had assessed Patient SS at about 8:30 p.m. and ordered pulse oximeter every 6 hours, that
Patient SS had an order for 8 ounces of fluid every two hours, or that Patient SS had been drowsy
during the evening shift. Petitioner explained that vital signs, fluid orders, and precaution checks
are written on a board in the nursing station when ordered more frequently than routine, and he
recalls that that the board only indicated that Petitioner was on 15 minute precautions.
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At hearing, Petitioner agreed that he was responsible for providing for the basic
care needs of Patient SS, and for reporting any change in his status to the nurse. Petitioner
maintains that there was nothing unusual about Patient SS’s condition during his shift that
warranted special attention or report to the nurse.
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27.
Petitioner recalled that he admitted Patient SS on the ward during the early
morning hours of Saturday, April 26, 2008. Petitioner remembered that Patient SS called him by
name, was talkative, and moved around the ward without difficulty. Petitioner did not see
Patient SS again until his April 28-29 shift. Petitioner denied that he observed a sharp contrast
in Patient SS’s behavior when he returned to work on April 28-29, although Petitioner
acknowledged that during his entire shift Patient SS remained in the same chair in the dayroom
and did not interact with him as he had on the morning of admission.
28.
Petitioner confirms that he turned the TV on in the dayroom during his shift, but
adds that he did this only after receiving permission from the nurse. Petitioner explained that the
television often keeps patients who are unable to sleep from disturbing other patients. However,
no patients other than Patient SS are observed in the dayroom during the shift. When Petitioner
is watching TV in the dayroom, he estimated he was about 15 feet from Petitioner. However,
close proximity to Patient SS does not necessarily mean that Petitioner is adequately performing
precaution checks. Petitioner documented at each 15 minute precaution check that Patient SS
was asleep. While the angle of the video does not allow for visualization of Patient SS’s face,
there are times when Patient SS’s movements indicate that he is awake.
29.
Although Petitioner contends that he asked Patient SS several times during the
shift if he wanted to go to bed, the video shows Petitioner approaching Patient SS only once
during the entire shift. Petitioner repeatedly emphasized that it was not his job to force patients
to go to bed, to go the bathroom, or to drink. Petitioner reiterated that unless a patient is
incontinent, they are able-bodied and it is not his job to worry the patient every few minutes.
When asked what signs he would look for to indicate that a patient sitting in the dayroom needed
assistance, Petitioner replied, a patient sliding out of a chair on the floor. Petitioner did not
recognize that Patient SS needed assistance during his shift even though Patient SS can be seen
trying unsuccessfully to get out of the chair at one point.
30.
Based upon the interviews, the documentation, the video surveillance, and the
testimony of the Petitioner, the evidence is insufficient to find that Petitioner intentionally
deceived the facility by misrepresenting on Patient SS’s 15 Minute Precaution Flow Sheet that
Patient SS was in his bed asleep at 3:00 a.m. and 3:15 a.m. on April 29, 2008. The undersigned
finds that the Petitioner’s testimony to be very credible that he made a mistake in entering “1 E”
(patient in room) at 3:00 a.m. and 3:15 a.m. in the registry. This testimony is supported by the
Precaution Flow Sheet’s entries of “5 E” (patient in day room) in every other 15 minute interval
throughout Petitioner’s work shift. The undersigned finds that it would be of no benefit to
Petitioner for him to intentionally enter “1 E” in the Precaution Flow Chart solely for a thirty
minute period of time from 3 a.m. to 3:30 a.m., and enter “5 E” in every other 15 minute interval
during Petitioner’s work shift.
31.
Based on the interviews, the documentation, and the video surveillance, there is
credible evidence that Petitioner neglected Patient SS by failing to provide the “necessary care or
services” to Patient SS to maintain the patient’s mental health, physical health and/or well-being
resulting in physical harm.
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Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge
makes the following:
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has jurisdiction over the parties and the
subject matter pursuant to chapters 131E and 150B of the North Carolina General Statutes.
2.
Petitioner has the burden of proof. See Overcash v. N.C. Dep’t of Env’t &
Natural Res., 179 N.C. App. 697, 699, 635 S.E.2d 442, 444-45 (2006).
3.
As a HCT working in a state psychiatric facility, Petitioner is a health care
personnel subject to the provisions of N.C. Gen. Stat. § 131E-256.
4.
“Neglect” is the failure to provide goods and services necessary to avoid physical
harm, mental anguish or mental illness. 10A N.C.A.C. 130.0101, 42 CFR § 488.301.
5.
Petitioner failed to demonstrate that Respondent substantially prejudiced
Petitioner’s rights, acted erroneously, failed to use proper procedure, acted arbitrarily or
capriciously, or failed to act as required by law when Respondent notified Petitioner of its intent
to enter his name with a finding of finding of neglect in the Health Care Personnel Registry, and
there is sufficient evidence to support Respondent’s conclusion that on or about April 29, 2008,
Petitioner, a health care personnel, employed at a state psychiatric facility, Cherry Hospital, in
Goldsboro, North Carolina, neglected a Patient, (SS), by failing to provide proper care to the
patient, including not “properly performing” 15 minute precautions, resulting in physical harm.
6.
“Fraud” is the intentional deception or misrepresentation made by a person with
the knowledge that the deception could result in some unauthorized benefit to him or some other
person. It includes any act that constitutes fraud under applicable Federal or State Law. 10A
N.C.A.C. 130.0101(5).
7.
Petitioner demonstrated that Respondent substantially prejudiced Petitioner’s
rights, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or
failed to act as required by law when Respondent notified Petitioner of its intent to enter his
name with a finding of finding of fraud in the Health Care Personnel Registry, and there is
insufficient evidence to support Respondent’s conclusion that on or about April 29, 2008,
Petitioner, a health care personnel, employed at a state psychiatric facility, Cherry Hospital, in
Goldsboro, North Carolina, committed fraud against a facility by intentional deception by
falsifying two entries at 3:00 a.m. and 3:15 a.m. on a 15 minute precaution flow sheet for Patient
SS with unauthorized benefit to Petitioner. The undersigned finds as a matter of law that the
evidence is insufficient to support Respondent’s finding that Petitioner committed fraud as the
word is defined in N.C.A.C. 130.0101(5) and/or pursuant to State or Federal law.
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DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby
determines that Respondent’s decision to place a finding of neglect at Petitioner’s name on the
Nurse Aide Registry and the Health Care Personnel Registry should be UPHELD as to
Respondent’s finding that Petitioner neglected the patient, but Reversed as to Respondent’s
finding that Petitioner committed fraud.
NOTICE
The Agency that will make the final decision in this contested case is the North Carolina
Department of Health and Human Resources, Division of Health Service Regulation.
The Agency is required to give each party an opportunity to file exceptions to the
recommended decision and to present written arguments to those in the Agency who will make
the final decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. §
150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the
parties’ attorney of record and to the Office of Administrative Hearings.
In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact
contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the
preponderance of the admissible evidence. For each finding of fact not adopted by the agency,
the agency shall set forth separately and in detail the reasons for not adopting the finding of fact
and the evidence in the record relied upon by the agency in not adopting the finding of fact. For
each new finding of fact made by the agency that is not contained in the Administrative Law
Judge’s decision, the agency shall set forth separately and in detail the evidence in the record
relied upon by the agency in making the finding of fact.
This the 5th day of April, 2010.
_____________________________
Joe L. Webster
Administrative Law Judge
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A copy of the foregoing was mailed to:
Kelvin Donelle Lewis
204 LaGrange Street
LaGrange, NC 28551
PETITIONER
Juanita B. Twyford
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ATTORNEY FOR RESPONDENT
This the _____ day of __________, 2009.
______________________________
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 733-2698
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