Abuse Patients - Articles Compiled From
Legal Eagle Eye Newsletter for the Nursing Profession
Abuse Reporting: Court Reviews Nurse’s Legal Obligation As A Mandatory Reporter.
A nurse is a mandatory reporter of abuse or neglect of a vulnerable adult patient. When there is reasonable cause to believe that abuse, neglect, assault or exploitation has occurred, a mandatory reporter must report immediately to the Department of Social and Health Services and to the appropriate law enforcement agency. COURT OF APPEALS OF WASHINGTON February 17, 2015
An elderly resident of an adult family home who suffered from Parkinson’s disease, dementia and hypertension died from morphine intoxication. Morphine was not prescribed for her. Her death was ruled a homicide.
An RN was employed by an agency which provided nursing services in the facility. The RN was not the resident’s nurse. An LPN from the same agency cared for the resident. Another resident of the facility told the RN that the resident in question was being given morphine by a non-licensed staff member. The other resident said she saw two purple morphine tablets in a cup next to the resident’s bed and said that the resident seemed to be sedated all the time to the point she could not wake up or eat. When she checked the medication administration record the RN found out that the resident in question, in fact, was not prescribed morphine. Immediately the RN phoned the state Department of Social and Health Services. It took more than an hour to get past the busy signal and actually speak with someone. The RN reported that what she was told came second-hand from a resident whom she did not consider a reliable source, who was on morphine herself and had a history of drug abuse.
The RN’s only direct observation to report was the barely conscious resident having to be manually taken to the bathroom to be cleansed, which could have been due to heavy sedation, or her medical condition. The RN did not contact a law enforcement agency.
The Court of Appeals of Washing-ton dismissed the RN from the civil wrongful death lawsuit filed by the family. The RN had done more than what was required of her by law. The Court focused on the phrase
reasonable cause to believe in the state’s mandatory reporting law. The Court ruled the other resident’s second-hand information did not establish reasonable cause for the RN to believe a report of abuse was required to the Department or to law enforcement. The RN was justified not to consider the other resident a reliable source, even though her information was true. The obtunded mental status that the RN herself had observed was not inconsistent with the resident’s medical diagnoses and did not provide the RN with reasonable cause to believe that the resident was a victim of abuse. Kim v. Lakeside, __ P. 3d __, 2015 WL 667998 (Wash. App., February 17, 2015).Dependent Adult Abuse By Family Member: Court Endorses Caregivers’ Actions.
The nursing facility, its staff nurses, nursing director, president and owner were not named as defendants in the daughter’s lawsuit. The only actual legal issue was the Court’s ruling that the police officer was not liable to the resident’s daughter for false arrest. The officer arrested the daughter based on reports from the nursing facility and his own investigation. The daughter was acquitted of criminal charges. The complaint filed against her with the Department of Human Services was dismissed after an administrative hearing. Nevertheless, the patient’s caregivers all acted appropriately in the patient’s best interests.
SUPREME COURT OF IOWA January 9, 2015Two adult daughters visited their elderly mother in the nursing home where she resided. Later that same day a staff nurse reported to her charge nurse that she saw one of the daughters shoving the resident into her wheelchair and wheeling her out of view and then heard the daughter screaming at the resident. The charge nurse told the staff nurse to write an incident report and to forward the report to the nursing director. The nursing director told the staff nurse to examine the resident for signs of physical injury and forwarded the incident report to the nursing home president.
The nurse’s exam revealed fresh bruising on the resident’s knee and forearms. The nursing director phoned the local police. The assigned detective came to the nursing home and met for over two hours with the staff involved, then asked to speak with the resident herself. The nursing home caregivers persuaded the detective not to speak directly with the resident, fearing that could lead to reprisals by the daughter if and when her actions led to legal repercussions. Instead, they proposed that a physician speak with the resident, examine her and then speak with the detective. The detective was given a copy of the staff nurse’s initial incident report for this incident and was also made aware of previous similar incidents and given copies of pertinent chart notes.
The detective reported the daughter to the Iowa Department of Human Services and requested they assign a caseworker immediately to investigate and step into the situation. The physician found "thumbprint" bruises on the resident’s forearms and a bruise on her buttocks which were consistent with the first staff nurse’s description of the incident. The physician’s report was summarized in a phone call to the detective by a nursing home staff member. The detective called the daughter to come down to the police station. She refused to talk without a lawyer present. She was arrested nevertheless.
The jury acquitted the daughter of misdemeanor assault charges. An administrative law judge dismissed the complaint filed with the Department of Human Services and the case was closed. However, the Supreme Court of Iowa ruled the detective had probable cause to arrest the daughter. The overall tone of the Court’s opinion was that the resident’s caregivers and other concerned parties acted appropriately with her best interests at heart.
Veatch v. Waverly, __ N.W. 2d __, 2015 WL 15493 (Iowa, January 9, 2015).Abuse Reporting: Defamation Suit Dismissed.
Healthcare personnel are mandatory reporters of suspected abuse or neglect of a dependent adult by a caregiver. The law clearly gives mandatory reporters immunity from civil lawsuits over the making of such reports. Non-mandatory reporters are immune from suit unless it can be proven that the report was intentionally made with actual knowledge that it was false.
CALIFORNIA COURT OF APPEAL March 21, 2012The mother of a thirty year-old daughter who since age twelve has had a seizure disorder that has resulted in brain and nervous system damage filed a civil lawsuit for defamation against a hospital and several private-practice physicians. While taking care of the daughter in her home the mother called an ambulance to take the daughter to the hospital because she thought the daughter might be coming down with pneumonia. An advanced decubitus ulcer on the patient’s back caused personnel from the hospital to contact adult protective services whose investigation resulted in the daughter being removed from the home.
The California Court of Appeal dismissed the lawsuit. The daughter met the definition of a dependent adult. Her mother was her caretaker. By law, healthcare personnel are mandatory reporters of suspected abuse or neglect of dependent adults by their caretakers. Failure to report is a criminal offense for a mandatory reporter. The other side of the coin is that the law gives mandatory reporters immunity from civil liability for reporting as they are required.
Kirby v. Prime Healthcare, 2012 WL 946309 (Cal. App., March 21, 2012).Abuse Reports, Age Discrimination: Court Dismisses LPN’s Lawsuit.
Age discrimination occurs when a forty-plus year-old is subjected to discipline not visited upon younger persons or replaced by a significantly younger person, unless the employer is able to show a legitimate, non-discriminatory reason. Failure to follow a facility’s legitimate policy for reporting of known or suspected abuse is a justifiable reason for termination.
UNITED STATES COURT OF APPEALS SIXTH CIRCUIT December 21, 2011An LPN charge nurse sued her former employer, a nursing facility, for age discrimination after she was fired for non-compliance with the facility’s policy for reporting abuse and neglect of residents. The US Court of Appeals for the Sixth Circuit dismissed her case.
The nursing home’s written policy required any employee who witnessed or suspected abuse or neglect of a resident or misappropriation of a resident’s property to report it immediately to the employee’s own supervisor. Supervisors, in turn, were required to inform the nursing home administrator immediately so that the situation could be promptly investigated. Failure to report known or suspected mistreatment of a resident was grounds for disciplinary action, up to and including termination.
An aide heard another aide use a "hateful" tone telling a resident she could not come back to her room and feed her until she collected all of the other breakfast trays. Later that morning she heard the same aide yelling at a resident who asked her for more ice water, telling him she had brought him some earlier that morning and might not bring him any more until tomorrow if he kept pestering her. The aide waited a while, then told the LPN charge nurse what she heard. The LPN charge nurse, however, did not relay it to the administrator. She decided instead to monitor the situation and see whether or not the problem persisted. The next day the aide told the facility’s QI director, who told the administrator, who interviewed both of the aides, two other aides and the LPN charge nurse and fired the first aide for verbal abuse of a resident and the LPN charge nurse for violation of the facility’s mandatory reporting policy. The aide who went to the QI director was written up but was not fired because she did report what she heard, albeit later than she should have.
After her termination the LPN charge nurse, fifty-five years of age at the time, sued for age discrimination. The Court conceded the LPN charge nurse had a
prima facie case of age discrimination simply because she was fired at age fifty-five and her former position was filled by a much younger person. That did not nail down her discrimination case but it did force the facility to come forward with a legitimate, non-discriminatory reason for her termination.The Court found a legitimate, non-discriminatory reason for her termination in the fact she violated the facility’s legitimate reporting policy that left no discretion to her to decide if the incident squarely fit the definition of abuse or whether it should be reported to the administrator. Her supervisory responsibility was to report known or suspected abuse or neglect to the administrator. Other employees who were aware of the situation but did not go to the administrator were not supervisors and did not have the same responsibilities. Moreover, the Court ruled it was not relevant to the charge nurse’s duty to re-port known or suspected abuse that the first aide’s actions were eventually determined not to have fit the definition of abuse, but merely displayed a "bad attitude" toward persons under her care which nonetheless justified her termination.
Rutherford v. Britthaven, Inc., 2011 WL 6415109 (6th Cir., December 21, 2011).Abuse, Neglect: Aide’s Certification Revoked, Name Placed In Registry.
The aide’s conduct fits both definitions, abuse and neglect of a patient. A resident of a long-term care facility has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment and involuntary seclusion. Residents are entitled to be treated with courtesy, consideration and respect for the individual’s dignity and individuality. Abuse is defined as willful infliction of injury, unreasonable confinement, intimidation or punishment with physical harm, pain or mental anguish resulting. Neglect is defined as the failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION October 25, 2011A nursing home resident was known for yelling out for help and for being combative with caregiving staff. While being assisted into his wheelchair the resident repeatedly told the aide "easy does it" in a loud voice. The aide became frustrated with the resident’s repeated outbursts. She snapped the footrest down forcibly, grazing the resident’s leg in the process. The resident kept telling her "easy does it" and so she slapped the side of his head and told him to shut up. Then she pushed his wheelchair into the hallway, left him there and told him to get himself to the dayroom on his own. Another aide who witnessed the incident checked and found no injuries to the resident, on his leg or on his head, but she reported it to the charge nurse.
The director of nursing suspended the aide the next morning and reported her to the state Department of Health and Senior Services which revoked her certification to work with vulnerable adults. The Superior Court of New Jersey, Appellate Division, ruled that the aide was guilty of physical and verbal abuse for striking the resident and telling him to shut up and was guilty of neglect for leaving a helpless total care patient in the hallway somehow to get to the dayroom on his own.
Dept. of Health v. Moise, 2011 WL 5041397 (N.J. Super., October 25, 2011).Abuse: Male Nurse’s License Revoked For Misconduct With Vulnerable Female Patients.
A male nurse declining assistance from a female nurse or nurses aide for intimate care of a female patient is considered an "atypical circumstance" which may be viewed as evidence of intent to engage in improprieties or abuse of female patients. State nursing regulations prohibit mistreatment in the form of improper confinement of patients, require nurses to protect patient dignity, require nurses to promote public confidence in the nursing profession and require nurses to observe appropriate professional boundaries with patients. This nurse was guilty of a continuing pattern of intentional behavior which amounts to gross misconduct.
SUPREME COURT OF MASSACHUSETTS May 7, 2010The nurse got his license in 1978 and worked at the same hospital more than twenty years before his termination. After an allegation of sexual abuse against the nurse was ruled unfounded the nurse manager nevertheless met with all the male nurses informally to communicate suggestions for male nurses providing intimate care to female patients. The male nurses were advised to have a female "chaperone" present to protect female patients’ dignity and to protect male nurses from allegations of misconduct. The male nurse, however, was later accused of a number of additional violations of nursing standards. This time the facts were verified by five coworkers in the hospital’s emergency department.
The allegations centered on his conduct with young, female, intoxicated patients, some in four-point restraints, with whom he was caught alone in the bathroom or in treatment rooms with the curtains drawn or the doors locked or barricaded with equipment or carts. One of the nine separate incidents went beyond suspicious circumstances. The nurse was caught in the act sexually abusing a patient under his care in a trea-ment room with a cart placed behind the closed door to hinder entry by other staff. The Supreme Court of Massachusetts ruled that that incident alone would justify revocation of the nurse’s license.
Duggan v. Board of Registration in Nursing, 456 Mass. 666, __ N.E. 2d __, 2010 WL 1797114 (Mass., May 7, 2010).Patient Abuse By Family Member: Court Says Nurses Reacted Appropriately, Lawsuit Dismissed.
Nursing home staff began closely watching the daughter because they thought she and her brother were being overly aggressive while participating in their mother’s care. A staff nurse notified the charge nurse when she found bruising after the daughter shoved the resident into her wheelchair. Believing that a reportable incident of elder abuse had occurred, the director of nursing notified the state department of health and the local police. The police saw probable cause to arrest the daughter for elder abuse. At her arraignment the local magistrate also saw grounds for a criminal prosecution and released the daughter on her own recognizance pending trial.
UNITED STATES DISTRICT COURT IOWA October 9, 2009The nursing home’s nursing staff reported a resident’s daughter to the police after a nurse saw her push her elderly mother roughly into her wheelchair in the facility’s dining room and then found new bruises on the resident’s arms. The state department of health was also notified that a possible episode of elder abuse had occurred at the facility. The daughter claimed they called the police on her in retaliation for her complaints about her mother’s care. The nursing home staff were encouraging her mother to drink her juice when she did not want to, were insisting her mother get out of bed and were trying to get her to walk when she preferred just to sit in her chair.
The daughter’s criminal trial for elder abuse ended in her acquittal. The investigation by the state concluded that no abuse could be substantiated. Notwithstanding those outcomes, the US District Court for the Northern District of Iowa dismissed the daughter’s civil civil-rights lawsuit against the nursing home. A nursing home is required by law to investigate, to report to the state and to notify local law enforcement any time what appears to be elder abuse occurs. The motivation behind the nursing home’s staff in reporting the daughter was only to protect the resident and to fulfill staff members’ legal duties, the court concluded.
Veatch v. Bartels Lutheran Home, 2009 WL 3270823 (N.D. Iowa, October 9, 2009).Patient Abuse: Aide Found Guilty Of Misappropriation Of Property.
Misappropriation of a resident’s property means the deliberate misplacement, exploitation or wrongful temporary or permanent use of a resident’s belongings or money without the resident’s consent. A CNA who is experienced in the care of dementia patients knows that despite their normal appearances they do not have the wherewithal knowingly to give others use of their property. The CNA also knew that at this facility the residents who had phones in their rooms were billed separately for their phones on monthly invoices that item-ized the charges for each outgoing call, local or long distance. The resident was only billed $1.73 for nine calls by the CNA, but the size of the bill is beside the point.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION September 4, 2008The family of a long-term dementia patient became concerned and contacted management at the nursing facility when they received a bill for outgoing telephone charges. Families had the option of paying extra for a phone in the room and receiving itemized statements for outgoing calls, local or long distance. Many residents did not have phones. This resident was not up to the task of making calls herself, but the family got her a phone anyway so that they would be able to call her. It came to light that a CNA made the calls from the resident’s phone, nine calls over three days, to her next door neighbor’s home and adult daughter’s cell phone numbers. The charges totaled $1.73.
The CNA was reported to the state department of health, was found guilty of misappropriation of a resident’s property and was listed in the state registry of per-sons found guilty of abuse. The Superior Court of New Jersey, Appellate Division, turned down the CNA’s appeal and upheld the department’s actions. It was irrelevant that the CNA had permission from the resident. The court labeled that argument "ingenuous." The CNA knew the resident was not capable of making a knowing decision. The size of the bill was also irrelevant. The point was that the CNA had taken what was not hers and should not be allowed to work with vulnerable persons.
New Jersey Dept. of Health v. Robert, 2008 WL 4066426 (N.J. App., September 4, 2008).Abuse: Court Says That Home Health Nurse Did Not Willfully Abuse Her Patient, Nursing Board’s Charges Dismissed.
The Board of Nursing erred finding that the nurse willfully harassed, abused or intimidated her patient either physically or verbally. Willful conduct is done purposely and deliberately with specific intent to do something the law forbids. The nurse’s conduct was very upsetting to her patient, but the nurse had no intent to cause harm.
The nurse did not do or say anything with the intended purpose of harassing, abusing or intimidating her client, although that seems to have been the actual effect her actions had on her client. There was a therapeutic purpose which justified what the nurse did.
COURT OF APPEALS OF NORTH CAROLINA March 18, 2008A home health nurse’s care for her eighty-one year-old patient consisted primarily of managing her medications, that is, going to the home and observing and documenting that she was taking them. Among other medications the patient was on Seroquel, prescribed as treatment for her schizophrenia.
After being let into the home by a neighbor the nurse noticed the patient’s oxycodone was not with her other medications. The nurse went through the house room by room, opening kitchen cabinets, rifling through dressers, etc., looking for the oxycodone bottle, basically to ascertain whether or not the patient might be taking it inappropriately. The patient became very upset. The neighbor who was still there believed the nurse’s had acted inappropriately and reported her to the State Board. The Board sent the nurse a formal letter of reprimand, put her license on probation and ordered her to complete coursework in legal/ethical issues and therapeutic communications. The Court of Appeals of North Carolina reversed the Board’s decision. The nurse’s conduct had the effect of upsetting the patient, but the nurse did not act willfully, that is, with an intent to cause any physical or mental harm.
Elshoff v. Board of Nursing, __ S.E. 2d __, 2008 WL 706787 (N.C. App., March 18, 2008).Sexual Abuse: Nurse Must Report, Cannot Suffer Retaliation From Employer.
A nurse is, by law, a mandatory reporter of sexual abuse of any patient under the nurse’s care. A mandatory reporter of sexual abuse faces a myriad of legal repercussions for failing to report. The other side of the coin is that a mandatory reporter of sexual abuse cannot suffer retaliation from his or her employer for fulfilling the reporter’s legal duty. The abuse-reporting sta-ute is silent on the relevance of whether the reporter subjectively believes the alleged victim. That is, there is no exception to be found in the law to the mandatory duty to report when the caregiver thinks the victim’s allegations of abuse are the product of malice, dementia or delusion. Likewise, there is no exception to be found in the law to a mandatory reporter’s right to be free from retaliation even when the reporter himself or herself has reason not to believe and does not believe what the alleged victim is saying.
COURT OF APPEALS OF TEXAS February 7, 2007A nurse with almost thirty years of professional experience was working the night shift in a nursing home. Early in the morning an elderly female dementia patient told her that a certain male CNA had entered her room that night and exposed himself. The nurse told the CNA to stay out of her room the rest of the shift and began phoning her supervisors at home for guidance what to do next.
The problem was twofold. The resident had a lengthy history of complaints of sexual misconduct against her male caregivers, none of which to date had ever been substantiated. The CNA in question had a lengthy history of service with no blemish on his record. Staff had already taken the stance that the resident in question was not credible and was not to be believed. The nurse, however, believing it was her legal duty, interviewed the resident, charted what she had to say and wrote an incident report relating it at face value, even though she, like the others, did not actually believe it herself.
The nurse was fired the next day for insubordination. She sued for retaliation. The Court of Appeals of Texas upheld a civil jury’s verdict awarding her monetary damages from the nursing home but not from the nursing home’s parent corporation. The basis for the court’s ruling was that the law that mandates reporting of sexual abuse by caregivers does not say the duty to report exists only when the caregiver subjectively believes the alleged victim’s complaints can be substantiated. Nor does the law say protection for caregivers against retaliation for doing their legal duty as they understand it, to report any patient’s complaint of abuse, exists only when they themselves actually believe it.
Town Hall Estates-Whitney, Inc. v. Winters, __ S.W. 3d __, 2007 WL 416325 (Tex. App., February 7, 2007).
Abuse Of Dependent Adult: Facility Administrator Convicted, Failed To Report Incident With Staff.
Overreaction by a staff member in an institution for the mentally ill, involving physical contact that could produce physical injury, is abuse and must be reported to authorities. By law, certain healthcare professionals have the mandatory duty to report abuse of dependent adults. In California the definition of a mandatory reporter of abuse is very broad, including any staff of any public or private institution that cares for dependent adults.
The legal definition of what must be reported is also very broadly worded. It includes actual abuse that has been witnessed directly, abuse that has been reported to the mandatory reporter and abuse that is suspected to be occurring or to have occurred, provided there is a reasonable basis behind the reporter’s suspicion of abuse.
CALIFORNIA COURT OF APPEAL February 18, 2005In a recent opinion, the California Court of Appeal applied the state’s law on mandatory reporting of adult abuse to an administrator of a skilled nursing facility for adult psychiatric patients who failed to report a staff member who placed a patient in a choke hold after the patient refused to stand down from aggressive behavior toward a nurse.
Each state has its own definition of a mandatory reporter, who by law must report abuse or suspected abuse of a vulnerable adult to protective services and/or law enforcement. These definitions as a general rule include nurses, with respect to patients who are under their care. Mandatory reporter must report known or suspected abuse to proper authorities who are specified by state law. State law may say it is adult protective services, and give a phone number for the reporting hotline, and/or say that local law enforcement is to be notified. A mandatory reporter can be charged with a serious criminal offense for failing to report abuse as required by law.
The events occurred in a skilled nurs-ing facility providing long-term care to adults disabled by psychiatric problems. The patients qualified as dependent adults. A nurse intervened in an argument between two patients. She sent the non-aggressor to her room. A male staff mem-ber then moved in and began trying verbally to intimidate the aggressor patient to stand down. Both the patient and the staff member became more agitated. Then the staff member put the patient in a choke hold. It did not produce unconsciousness or any visible injury.
A report of the incident went from the nurses to the director of nursing to proper authorities. It resulted in criminal charges being filed against the administrator for not reporting abuse by the staff member.
Actual injury is not required for conduct to amount to abuse that must be reported. The potential to produce injury, physical or psychological, is all that is re-quired. A choke hold is not appropriate in these circumstances and can cause injury or death. A choke hold is an example of plainly abusive conduct, the court said. A mandatory reporter need not actually witness abuse or its effects, to be required to report it. Reasonable suspicion is all that is required. The fact the perpetrator is also a caregiver and a subordinate or coworker is also no defense to the mandatory duty to take action.
People v. Davis, 126 Cal. App. 4th 1416, 25 Cal. Rptr. 3d 92 (Cal. App., February 18, 2005).Additional references from nursinglaw.com
http://www.nursinglaw.com/alcohol-withdrawal-disability-discrimination.htm
http://www.nursinglaw.com/suicidal-mental-health-commitment.htm
http://www.nursinglaw.com/search-patient-property.htm
http://www.nursinglaw.com/arrest-warrant-patient.htm
http://www.nursinglaw.com/psychiatric-hold-nurse-negligence.htm
http://www.nursinglaw.com/mental-health-custody-control.htm
http://www.nursinglaw.com/hostage-drill-nursing-home.htm
http://www.nursinglaw.com/hospital-family-belligerent.htm
http://www.nursinglaw.com/forced-catheterization.htm
http://www.nursinglaw.com/emergency-department-nurse.htm