Legal Eagle Eye Newsletter for the Nursing Profession

May 1998

 Quick Summary: Federal regulations prohibit a nursing facility from verbal, mental, sexual or physical abuse, corporal punishment or involuntary seclusion.

  Abuse is defined by Federal regulations for nursing facilities as the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish.

  Willful in this context means a conscious intention to do an act.

  An act of abuse is willful when the act itself is intended, even if no harm or other bad purpose was intended to result from the act.

  In other words, willful abuse means the act was intentional rather than accidental. The actor’s motivation is not considered.

   In this case, the aide did not physically harm the resident. However, the aide did inflict an intentional act of intimidation upon the resident.

  There was justification to register this aide’s name as someone who had abused a patient. DISTRICT OF COLUMBIA COURT OF APPEALS, 1997.

  The nurse investigator in her report conceded that the nursing home resident in question could be "difficult to handle" and had "periods of inappropriate outbursts." However, the report concluded this was no excuse for how a certain certified nursing assistant had treated the resident. The department of consumer affairs and the District of Columbia Court of Appeals agreed with the report. The court ruled there were grounds to place the aide’s name in the abuse section of the nurses aide registry.

   A registered nurse told the investigator and then testified in court she saw the aide talk roughly to the resident. The aide shook her finger in the resident’s face, then grabbed the resident by the wrist and dragged her from the hallway into the resident’s room.

   The aide had received extensive in-service training for appropriate staff behavior in the face of difficult situations. The court agreed with the nurse the aide’s conduct was highly inappropriate under the facility’s own internal policies for how residents were entitled to be treated. The court also ruled the aide’s conduct violated Federal nursing facility regulations.

   The court ruled that verbal or physical intimidation of a nursing home resident is by law an act of violence, even if no actual physical harm comes to the resident.

   An act of intimidation is considered willful abuse, even if it is intended for the ostensibly beneficial purpose of controlling a resident’s behavior for the resident’s own benefit, according to the court.

   The court looked only at what the aide did and at the fact it was intentional rather than accidental.

   The court paid no heed to whether the aide intended to help the resident by intimidating the resident in order to control her behavior, rather than intending to hurt the resident, as that is legally irrelevant. Hearns v. District of Columbia Department of Consumer and Regulatory Affairs, 704 A. 2d 1181 (D.C. App., 1997).