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03/17/94 ALDEN NURSING CENTER - MORROW v. JOHN R.

March 17, 1994

ALDEN NURSING CENTER - MORROW, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLEE,
v.
JOHN R. LUMPKIN, ACTING DIRECTOR OF THE ILLINOIS DEPARTMENT OF PUBLIC HEALTH, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LESTER D. FOREMAN, JUDGE PRESIDING.

Hoffman, Johnson, Theis

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The Illinois Department of Public Health ("Department") charged plaintiff, Alden Nursing Center, with a "Type B" violation under section 1-130 of the Nursing Home Care Act ("Act")(Ill. Rev. Stat. 1989, ch. 111 1/2, par. 4151-130), and with violating sections 300.3240(a) and 300.3240(d) of the Department's Minimum Standards, Rules and Regulations for Classification and Licensure of Long-Term Care Facilities ("Minimum Standards") (77 Ill. Adm. Code §§ 300.3240(a), (d) (1989)), after an Alden nurse's aide allegedly physically and verbally abused two residents and Alden failed to report the alleged verbal abuse to the Department. Following an administrative hearing, defendant, the Director of the Department, found against Alden. Alden sought administrative review, and the circuit court reversed the Director's ruling. The Director now appeals.

The following evidence was adduced at the administrative hearing. Alden resident Ronald Gray was a schizophrenic with a history of alcoholism and hypertension. Three times per week, Gray was transported to the Neomedica Dialysis Facility to undergo dialysis treatments. At Neomedica's request, Gray was accompanied on these trips by Jackie Shannon, a nurse's aide employed by Alden. Gray often had "outbursts" or was otherwise ill-behaved, and Neomedica personnel considered Shannon to be the only one who could control him.

Martha Jackson was a registered nurse and Neomedica unit manager. Jackson had worked at Neomedica since Gray began his treatments there shortly after December of 1988, and had encountered him at the facility over 100 times. Jackson testified that on January 3, 1990, shortly before Gray's treatment, she overheard Shannon making loud statements to Gray while the two were inside a patients' bathroom. Jackson testified that she heard Shannon threaten to "kick [Gray's] teeth in, beat the piss out of him and whiphis ass, if he didn't shape up and didn't listen to her." Shannon also warned Gray that his sister had given Shannon permission to do whatever she thought necessary to keep him in line. When Jackson heard this, she knocked on the bathroom door and ordered Shannon to come outside. She then reprimanded her about her shouting and said that her comments were inappropriate. Jackson testified that Shannon apologized for being loud but indicated that Gray drove her to it. Jackson acknowledged that Gray upset people, but told Shannon that such comments were not allowed in the clinic, and that she intended to report the incident to Alden.

Jackson subsequently accompanied Gray and Shannon to the waiting area. Jackson sat down next to Gray and asked Shannon to sit away from him because Jackson believed he looked scared as a result of the occurrence. Jackson testified that Gray was "not his usual self;" he had his hands in front of him and kept looking down and saying "I'll be good." When Jackson asked whether Gray wanted coffee, which he usually accepted, he refused for the first time. Jackson testified that Gray was normally jolly and singing and claiming to be God or the son of God; however, during the ensuing three-hour dialysis, Gray was quiet, withdrawn, frightened, and "not his usual self."

While Gray was in treatment Jackson telephoned Alden about the incident. Jackson testified that she spoke with Victoria Scott, Alden's assistant director of nursing, and told her that Shannon's conduct had distressed Gray, and requested that Shannon no longer be allowed to take him to Neomedica. Jackson also informed Scott of her intention to notify the Department about the incident. Jackson then notified the Department, both by telephone and then by letter on January 15, 1990. *fn1 In addition, Jackson sent a follow-up letter about the incident to Alden.

Victoria Scott testified that after speaking with Jackson on January 3, 1990, she reported the matter to Alden's director of nursing, Linda Houston. Later that afternoon, Scott discussed the situation with Shannon and Gray individually. Scott testified that Shannon denied physically abusing Gray or using profanity with him. Similarly, when Scott asked Gray whether anything had happened at the dialysis center, whether Shannon had cursed at him, or if he was afraid of her, Gray said no. According to Scott, Gray seemed fine that afternoon and conducted himself in his usual manner.

Scott reported her Discussions with Gray and Shannon to Houston. Thereafter, on January 24, 1990, a meeting was held at Alden about the incident, attended by Scott, Jackson, Jackson's supervisor, and Alden's administrator, Witkins. Scott testified that Jackson exhibited an inexplicably hostile attitude at the meeting.

Linda Houston, Alden's director of nursing, testified that when she asked Shannon about the alleged verbal abuse Shannon appeared "shocked" and denied that anything had happened. Houston also asked Gray about it, and he too responded that nothing had happened. Houston corroborated Scott's testimony that Gray's behavior was not unusual that afternoon.

Houston testified that she reported the matter to Witkins and told him that she was going to prepare an incident report because she "was required" to do so. Witkins, however, instructed her not to prepare the report because the matter was purely hearsay and he wanted to conduct his own internal investigation. Witkins also told Houston that he would notify her if his investigation indicated that a report was warranted.

Houston testified that Shannon was interviewed at the January 24, 1990 meeting and that she denied anything had occurred. Houston indicated that following the meeting, Witkins declined to file a report with the Department even though she advised him to do so; he reiterated to her that the matter was based strictly upon hearsay and circumstantial evidence.

On February 22, 1990, a nurse and an Alden resident saw Shannon strike a patient, Harriet Clapton, on the side of her face with a balled fist. Although Clapton, a schizophrenic, had been acting belligerently and "striking out", she had not hit anyone. Alden employees immediately reported the incident to police. Additionally, the parties stipulated that Alden telephoned the Department and ...


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