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[T] Mason v. Department of Public Health

November 05, 2001

BRENDA MASON, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF PUBLIC HEALTH AND DR. JOHN R. LUMPKIN, DIRECTOR, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Williamson County. No. 99-MR-57 Honorable Phillip G. Palmer, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

Ordered published December 19, 2001.

Brenda Mason (plaintiff) appeals from the trial court's affirmance of a final order of the Department of Public Health (the Department) finding that plaintiff abused a nursing home resident. The Department's decision was based upon the recommendation of an administrative law judge (ALJ). Plaintiff argues (1) that the ALJ's finding that plaintiff's conduct was not an isolated incident is against the manifest weight of the evidence, (2) that the ALJ's finding that plaintiff's conduct was in furtherance of teasing a nursing home resident is against the manifest weight of the evidence, and (3) that the ALJ's conclusion that plaintiff was guilty of abusing a nursing home resident is clearly erroneous. We affirm.

FACTS

At the evidentiary hearing before the ALJ, the following pertinent evidence was presented. Lenitta Chandler testified that she was employed as a certified nurse's aide (CNA) at Saint Anne's Health Care Center (Saint Anne's), where she worked with plaintiff, who is also a CNA. Saint Anne's is a residential living facility for the elderly. Chandler described Saint Anne's as a "traditional nursing home setting." While employed at Saint Anne's, Chandler was acquainted with an elderly female resident by the name of Lola Juergens, who was alert but had some dementia. Other witnesses testified that Juergens suffered from Parkinson's disease.

Chandler described the incident for which plaintiff was accused of abuse, which involved Juergens, plaintiff, and another CNA, Susan Kastner. Chandler testified that she walked into a community room where the residents watch television with the staff. When Chandler walked into the room, Juergens was sitting in a chair with a tray table in front of her. On the tray table was a glass of juice. Chandler testified that Kastner was sitting to the right of Juergens and plaintiff was sitting to the left of Juergens.

Chandler testified that when she entered the room, Kastner was poking Juergens in the ribs and that plaintiff "was doing this with her hair." When the attorney for the Department asked Chandler if Kastner and plaintiff were bothering Juergens by touching and poking her, Chandler replied affirmatively. Chandler stated that Juergens threatened to throw her glass of juice on "her," but Chandler did not specify whether "her" referred to Kastner or plaintiff. Chandler testified that plaintiff continued "doing this" with Juergens' hair, that Kastner continued poking Juergens in the ribs, and that Juergens then threw the glass of juice on plaintiff.

Chandler testified that after Juergens threw the juice on plaintiff, plaintiff became "very upset [and] jumped up and started cussing." According to Chandler, plaintiff said to Juergens: "God damn you. Look what you did to my pants. I ought to take you outside in the ice and let you freeze." Chandler also testified that plaintiff called Juergens a bitch. Chandler described Juergens' demeanor after the incident as "shaking a great deal."

Connie Res, a CNA at Saint Anne's for 26 years prior to the hearing, testified that she was on duty at the time of the incident. Res testified that she witnessed Kastner poking Juergens in the ribs. Res testified that Juergens told Kastner to quit but that Kastner "kept it up." Res testified that she saw plaintiff "reach up and rub [Juergens] on the top of the head." Res also agreed that plaintiff told Juergens "it will be okay" as plaintiff rubbed her hand over Juergens' head one time. Res testified that Juergens threatened to pour the juice on plaintiff and then did so.

Kastner testified that her action of poking Juergens in the ribs initially caused Juergens to be upset and that Juergens was already upset when plaintiff came into the room and sat beside Juergens. Kastner testified that when plaintiff sat down, she rubbed Juergens' head and said: "It will be okay, Honey. It will be okay, Honey." Kastner testified that after Juergens threw the juice on plaintiff, plaintiff said, "God damn you, [Juergens], you threw juice on me." When Kastner was asked whether she normally teased residents, she replied, "No, not always; but once in a while, we have; yeah." Kastner denied that plaintiff said anything to Juergens about leaving her out in the cold.

Mark Trevathan was the registered nurse on duty the day of the incident. He testified that no one reported any problem with Juergens, plaintiff, or Kastner that day. He testified that he saw Juergens that day, after the incident, and he did not notice anything different about her behavior.

On July 7, 1999, the ALJ issued his report and recommendation, finding plaintiff subject to the jurisdiction of the Department pursuant to the Nursing Home Care Act (the Act) (210 ILCS 45/1-101 et seq. (West 2000)), because she was employed as a CNA at Saint Anne's at the time of the alleged abuse-January 9, 1999. The ALJ determined that under section 1-103 of the Act, abuse is defined as any physical or mental injury or sexual assault inflicted on a nursing home resident other than by accidental means (210 ILCS 45/1-103 (West 2000)). The ALJ further found that under the Illinois Administrative Code, verbal abuse may be established by evidence that (1) the CNA used oral, written, or gestured language, (2) the language was disparaging or derogatory, and (3) the language was within the hearing or seeing of the resident (77 Ill. Adm. Code §300.330 (2000)). The ALJ found also that mental abuse is established by acts including humiliation, harassment, threats of punishments or deprivation, or offensive physical contact. See 77 Ill. Adm. Code §300.330 (2000).

The ALJ's report, in relevant part, is as follows:

"Based upon the uncontroverted facts cited herein and my evaluation of the credibility of the witnesses, I find that the [Department] has established by a preponderance of the evidence verbal abuse and mental abuse under [section 1-103 of the Nursing Home Care ...


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