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Ulysse v. Lumpkin

November 12, 2002

MARGUERITE ULYSSE, PLAINTIFF-APPELLANT,
v.
JOHN R. LUMPKIN, DIRECTOR, THE DEPARTMENT OF PUBLIC HEALTH, AND THE DEPARTMENT OF PUBLIC HEALTH, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 00-M1 450531 (transferred to Chancery) Honorable Robert V. Boharic, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill

UNPUBLISHED

Plaintiff appeals an administrative decision removing her from the state registry of qualified certified nurse's aides (CNA) maintained by the Illinois Department of Public Health (the Department). We affirm.

The Department issued a formal notice to plaintiff on December 17, 1999, charging her with abusing a nursing home resident on November 11, 1999. Plaintiff asked for a hearing to contest the allegations. The following evidence was taken at the hearing.

Plaintiff testified that she had been a CNA for eight years and had worked at Ballard Health Care Center for four. CNAs are responsible for feeding, changing and moving the residents to and from their beds. Gertrude Streeter was plaintiff's supervisor. Plaintiff had complained to Ballard management about Streeter's unfairness in assigning extra work. Plaintiff claimed she was assigned work other CNAs refused to do.

Plaintiff worked the 6:30 a.m. to 2:30 p.m. shift. She had been caring for an Alzheimer's patient for three to four months. Plaintiff said that the patient was confused and could not remember what happened from one minute to the next. On November 11, plaintiff was trying to move the patient from a wheelchair into her bed. The patient began fighting and sliding down the chair. Plaintiff called to Streeter for help four or five times before she came. Streeter did not respond immediately because she was on the phone. Plaintiff tried to tie the patient down as instructed by Streeter. Plaintiff was kicked several times as she tried to restrain the patient. Plaintiff denied slapping the patient and claimed that she only held the patient's wrists while telling her to stop fighting. Plaintiff did not intentionally hit the patient. Plaintiff believed that Streeter reported otherwise because she and Streeter were mad at each other.

Plaintiff was interviewed by Sam Ogunro and Sue Mikals on November 11. Ogunro is a nursing supervisor. Mikals is the vice-president of clinical operations for Ballard. Plaintiff told Ogunro and Mikals that she tried to grab the patient's hand but did not slap her, either on the face or the hand. Plaintiff told the patient she was being "bad" and to stop fighting. Mikals told plaintiff that she would be terminated because she had abused the patient twice-grabbing the patient's hand and telling the patient that she was bad. Mikals told plaintiff she could prepare a letter in response and deliver it to Mikals the next day. Plaintiff testified that she prepared a one-page letter and gave it to Mikals as instructed. Plaintiff offered a copy of the letter into evidence. The Department's objection to the letter's admission was sustained.

Gertrude Streeter testified that she worked at Ballard as a licensed practical nurse. Streeter was in charge of providing medical care to the residents, some of whom suffered from Alzheimer's. Streeter also supervised the CNAs, including plaintiff.

Streeter said that, on November 11, 1999, she and plaintiff were working the same shift. At about 2 p.m. Streeter and plaintiff moved an Alzheimer's patient from a wheelchair to her bed. Both then left the room. Streeter and plaintiff returned to the room and noticed that the patient was trying to climb out of bed. Streeter and plaintiff helped the patient to sit up. The patient was agitated and flailed her arms and legs. Plaintiff tried to restrain the patient's left wrist with a wall restraint when the patient kicked her in the face. Plaintiff then slapped the patient in the face. Plaintiff slapped the patient again minutes later. Streeter told plaintiff that she was not supposed to hit the patient. Plaintiff said that if she was hit, she would hit back. Streeter examined the patient and noticed a red mark on her face. Streeter reported plaintiff's conduct to Sam Onguro, the afternoon nursing supervisor.

Streeter denied that plaintiff called several times for help in moving the patient before Streeter came to the room. Streeter did not remember being on the phone. Streeter said that if plaintiff called for help Streeter responded right away. Streeter denied that the slapping was accidental.

Streeter testified that she and plaintiff were friends and there was no tension between them. There were no complaints about plaintiff hitting other patients. Streeter did not recall whether plaintiff filed complaints against Streeter based on workload assignments. Streeter said she divided the work evenly between the CNAs.

Sam Ogunro testified that he is a registered nurse and nursing supervisor for Ballard. Ogunro said that Alzheimer's patients were sometimes combative and hit CNAs caring for them.

Ogunro learned of the November 11 incident at 2:30 p.m., about one-half hour after he came on duty. Streeter explained to him that she and plaintiff were helping an agitated patient into bed when plaintiff was kicked and that plaintiff slapped the patient twice. Ogunro told Streeter that he was required to report the incident to his supervisor, Sue Mikals. Ogunro prepared a report for Mikals. The signed report detailed what Streeter had told Ogunro.

Ogunro met with Mikals. Ogunro was present when Mikals called Streeter in to relate what happened. Ogunro was also present when plaintiff was interviewed. Plaintiff denied slapping the patient in the face. Plaintiff said that after being kicked, she tapped the patient twice in the thigh and told the patient "don't do that, bad lady, bad lady." Ogunro said that plaintiff demonstrated ...


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