COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. Division of Administrative Law Appeals

Department of Public Health,

Petitioner

v. Docket No. PHNA-07-1059

Susan Smith,

Respondent

Appearance for Petitioner:

Joel Buenaventura, Esquire

Deputy General Counsel
Department of Public Health
250 Washington Street, 2nd FL
Boston, MA 02108-4619

Appearance for Respondent:

Donald C. Lynde, Esquire

126 Lake Shore Drive
Marstons Mills, MA 02648

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G.L. c. 111 s. 72J, 42 USC 1396r(e)(2), 801 CMR 1.02 et. seq. and
105 CMR 1.55, on October 11, 2007, the Petitioner, Department of Public Health (DPH) issued a Notice of Agency Action to the Respondent, Susan J. Smith (Smith), therein charging her with one count of patient abuse at Harborside Healthcare Mashpee onSeptember 12, 2007. (Exhibits 1 and 2). The Respondent filed her request for a hearing on October 24, 2007. (Exhibit 3). A hearing was held on May 30, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, fifteen exhibits were marked. The Petitioner presented the
testimony of the following witnesses: Barbara A. Smith, R.N., Director of Nurses at Harborside Healthcare in Mashpee, MA; Jackie Peters, Certified Nurse Aide at Harborside Mashpee; Judith E. Collins, L.P.N. at Harborside Mashpee; and Judy
Westgate, R.N. at Harborside Mashpee. The Respondent presented the testimony of DPH Investigator Susan Hunter. The Respondent, Susan J. Smith, also testified in her own behalf. Both parties stated their arguments for the record. Two audiotapes were made of the proceedings.

FINDINGS OF FACT

Based upon the testimony and documents submitted at the hearing in the above-
entitled matter, I hereby render the following findings of fact:

1. The Respondent, Susan J. Smith (Smith), 46 y.o.a., became a Certified Nurse
Aide (CNA) in or about 2003. She was hired to work as a CNA at Harborside Healthcare Mashpee (Harborside) by Director of Nurses (DON) Barbara A. Smith in October 2003. Smith received training at Harborside on abuse, mistreatment and neglect of residents. There is no record of prior discipline against Smith. Rather, there were discussions between Smith and her superiors concerning her need to demonstrate more compassion toward the residents and the need to utilize the correct tone of voice with them. (Testimony and Exhibit 5).

2. Harborside is a 98-bed long-term care and rehabilitation facility.

3. In September 2007, HN, a 75 y.o. female, had been a resident at Harborside
for five years. HN, a tall, strong woman, had been diagnosed with severe dementia, hypertension and Alzheimer's disease. HN was known as a "heavy wetter" and she required frequent incontinence care. HN was frequently agitated and resistive to care. She was not able to articulate her needs. She often flailed her arms and yelled out during care. It was directed by senior staff at Harborside that HN have two people caring for her at all times. (Testimony and Exhibits 7 and 9).

4. At approximately 12:40 AM on September 12, 2007, Smith was providing
incontinence care to HN. Smith was providing the care alone and on the right side of the resident. The overhead light was on. HN was flailing her arms and legs. She was in an agitated state, making noises and being resistive to care.

CNA Jackie Peters had come onto the floor from her assigned side of the facility
in order to procure paper cups from the closet near HN's room. She looked into HN's room and saw a struggle between HN and Smith. Peters was approximately ten feet away from Smith and HN.

Peters heard HN make a noise and she asked, "Sue, do you want some help?"
Smith started to turn around and said "huh?"

Smith then turned back to HN, whose hands were still flailing in the air, and
quickly took her right hand, extended her arm over the guardrail and hit HN's left hand.

Peters heard the soft, but audible slap. (Testimony and Exhibits 2, 11, 12, and 14).

5. Peters was stunned by what she had seen. She returned to her assigned unit
and reported what she had seen to the nurse on her unit, Judy Collins. Ms. Collins told her to write down what she had observed and that she, Collins, would "take it from there". Peters wrote a one-sentence report. (Testimony and Exhibits 11 and 14).

6. At 1:30 AM Judith Collins wrote a report concerning Peter's observations.
Collins also went to the other side to check on HN who was sleeping at that time. (Exhibit 12).

7. At some point following the incident with HN, Smith reported to her nurse
supervisor, Judy Westgate, that HN had been very resistive to care and was very abusive toward her. She told Westgate that Peters had come to the door and had not offered to help her with HN. She also stated that she had been trying to take and hold HN's hand so that HN would not hit her again. Smith also told Westgate that she hoped Peters had not gotten the wrong idea and come to the belief that she had hit HN because she had not.

Westgate found this last statement to be unusual.

Westgate ordered the other CNA on Smith's unit, Paula Campbell, to work
alongside Smith until the end of the shift. At about 4:15 AM, Westgate went to the other unit and spoke with Judith Collins. (Exhibit 12).

8. Westgate indicated that she had heard an unusual remark from Smith and that
she wanted to know what was going on. Collins reported what Peters had seen.
Westgate also briefly spoke to Peters at that time. (Testimony and Exhibit 12).

9. Westgate reported the incident to DON Barbara Smith at approximately 5:00
AM on September 12, 2007. DON Smith then began an investigation and eventually notified DPH. She also wrote out a report. (Id. and Exhibit 8).

10. The DON interviewed S. Smith at approximately 5:15 AM on
September 12, 2007. Smith informed the DON that she had been trying to take HN's hand in self defense. Smith was immediately suspended. (Id.).

11. Westgate went to check on HN at approximately 6:30 AM on
September 12, 2007. She observed no swelling or bruising on the resident's left hand. The resident was unharmed. (Exhibit 10).

12. At some point on September 12, 2007, CNA Smith wrote a statement wherein she indicated that she told Westgate that HN had been abusive and that Peters never offered her help. Smith also indicated that Collins had called Westgate and informed her that Peters had reported seeing Smith hit HN. She stated that she told Westgate that she hoped Peters had not gotten the wrong idea.

Smith also wrote that Westgate had helped her with HN later and that Westgate
had seen how difficult and resistive to care HN could be. She noted that Westgate had written down in the "green book" how abusive HN had been. Smith's final sentence was "I didn't think anything of it after that". (Exhibit 13).

13. On September 14, 2007, DPH Investigator Susan Hunter conducted an
investigation at Harborside and concluded that the allegation of abuse was valid.
(Exhibit 2).

14. On October 23, 2007, Smith wrote another statement concerning the
allegation against her. The final two paragraphs read as follows:

Since this case is one where two individuals are reporting the
same incident, it might have been helpful to interview some of
the personnel with whom I have worked consistently over these
three years.

In retrospect, I only wish that I had secured help in attending this
resident rather than seeking to do it by myself. During the
remainder of the shift I secured the assistance of the other Aide
on duty and there were no further incidents.
(Exhibit 4).

CONCLUSION

After a careful review of all of the testimony and documents in this case, I have
concluded that the Petitioner has met its burden of proof in this case. A preponderance of the evidence reflects that Smith slapped HN during care on September 12, 2007.

In reaching this conclusion, I have credited the testimony of Barbara Smith,
Jackie Peters, Judith Collins and Judy Westgate. I have discredited the testimony of the Respondent, Susan Smith, the party with the greatest reason to color her story in this case. She is motivated by self interest, the clearing of her "good name", and, most importantly, the need to work. In contrast, Jackie Peters, the eye witness to the incident, has no apparent bias or self-interest in the matter. Further, Peters' version of the events has been consistent and unwavering throughout the investigation and the DALA hearing.

Smith's retelling of the incident on September 12, 2007 is tantamount to someone who is trying to back out of a bad situation after a brief aberration and get back on the right road. I believe that she is a good-hearted person who probably was a very dedicated CNA. However, her efforts to cover her tracks were a bit overzealous. It is this and the inherent inconsistencies between her own statements and the statements of the other, credible, non-biased witnesses that contributed to my assessment of her credibility. Smith was very quick to emphasize how difficult HN had been on the night in question. She reported on many occasions that HN had hit her. She went on to report that she told Westgate that HN had hit her.

Westgate did not testify to Smith's being hit by HN. Westgate did not testify that
she assisted Smith with HN's care or that she herself found HN to be very resistive to care. Peters did not see HN hit Smith. No documents were offered into the record wherein it is reported that HN hit Smith or even that HN was very agitated on September 12, 2007. The report from Peters, the neutral eye witness, is that HN's arms and legs were flailing.

Next, Smith wrote in her first report that Collins had called over to Westgate and
reported Peters' observations. Smith alleged that this was why she expressed her concern about what Peters had seen and "misinterpreted". Neither Collins nor Westgate confirmed that Collins had made any call to Smith's unit. Instead, it was Westgate who became concerned over Smith's statement about what Peters saw. It was Westgate who took it upon herself to act on her instinct and go speak with Collins and Peters. Smith's proffering that Peters may have misinterpreted what she saw is an apparent attempt to cover the truth by making a first offering of a plausible version of the events favorable to herself so as to avoid discipline.

Smith was eager to point out that Peters did not offer any help. I believe that
Peters did indeed offer help. The contrary assertion by Smith serves as an attempt, albeit ineffective, to divert criticism and/or partial blame onto Peters.
Smith worked hard in her written statements and in her testimony to appear to be
the wrongfully accused "good guy" in the situation. In her statement of
October 23, 2007, she avers that her only mistake was to work with HN alone that night.

She adds that she herself secured the assistance of the other CNA for the remainder of her shift on the night in question. In point of fact, it was Westgate who told the second CNA to stay with Smith through the remainder of her shift and not the other way around.

Finally, at the DALA hearing Smith testified a number of times that she had been
attempting to keep HN's hands away from her (Smith's) face when the contact was made. Yet none of the reports by Smith mention that she was trying to protect her face.

None of the other witnesses heard any mention of Smith protecting her face. Peters did not see HN's hands anywhere near Smith's face. Smith did not even report to the investigator that she tried to prevent being hit in the face by HN. This aspect of Smith's testimony is an apparent recent contrivance.

For the foregoing reasons, DPH has put forth a strong and credible case through
its witnesses and documents. The finding that Smith abused HN by slapping her on the left hand on September 12, 2007 is upheld.

So ordered.

Division of Administrative Law Appeals,
BY:


Judithann Burke
Administrative Magistrate

DATED: September 15, 2008


This information is provided by the Division of Administrative Law Appeals .