Decision  Dept. of Public Health v. Bernal, Alexander (PHNA-16-314)

Date: 11/30/2016
Organization: Division of Administrative Law Appeals
Docket Number: PHNA-16-314
  • Petitioner: Department of Public Health
  • Respondent: Alexander Bernal
  • Appearance for Petitioner: Joel Buenaventura, Esquire
  • Appearance for Respondent: Alexander Bernal
  • Administrative Magistrate: Judithann Burke

Table of Contents

Summary of Decision

Department of Public Health has failed to prove that Certified Nurse Aide committed one count of patient abuse against a nursing home resident when he transferred the patient without the assistance of another staff member, in contravention with the resident’s care plan. The resident sustained bruising to her forearm during the transfer because the Respondent was unaware that she was sight-impaired and needed additional assistance in order to lift up from the bed an navigate her walker. These facts are tantamount to neglect in the transfer, but not intentional or willing abuse. 


Pursuant to G.L. c. 111, § 72J, 42 U.S.C. § 1396r (e) (2), 801 CMR 1.02 et seq. and 105 CMR 155, on June 6, 2016, the Petitioner, Department of Public Health (DPH), issued a Notice of Right to a Hearing to the Respondent, Alexander Bernal, charging him with one count of patient abuse at Beaumont Rehabilitation and Skilled Nursing Center in Northbridge, MA (Beaumont) February 19, 2016.  (Exhibit 2).  The Respondent filed his request for a hearing on July 6, 2016.  (Exhibit 3).  I held a hearing on October 11, 2016 at the offices of the Worcester Registry of Deeds, 90 Front Street, Worcester, MA.    

At the hearing, twelve (12) exhibits were marked.  The Petitioner presented the testimony of the following witnesses:   Debra Yedinak, R.N., Director of Nurses at Beaumont; and, Amanda DiPinto, L.P.N., who was employed at Beaumont in February 2016.  The Respondent testified and argued in his own behalf.  The hearing was digitally recorded.

Findings of Fact

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

  1. The Respondent, Alexander Bernal, 43 y.o.a., is a single parent of a toddler girl.  He was employed as a Certified Nurse Aid at the Expert Staffing Agency.  (Yedniak Testimony and Respondent Testimony.)
  2. Beaumont Nursing Home (Beaumont) in Northbridge, MA is a 154 bed skilled nursing facility.  (Id.)
  3. In February 2016, HK was a resident at Beaumont.  She was hearing impaired and legally blind with total left eye blindness.  She required supervision by a staff member when using the bathroom, but was able use the toilet herself after a transfer.  She required a gait belt and her walker when ambulating to the toilet.  Other diagnoses included heart failure and adjustment disorder with depressed mood.  (Id. and Exhibits 5 and 7.) 
  4. Beaumont staffing levels are maintained by a variety of nursing agencies when the employee staff levels are below minimum standards.  The Respondent was assigned to the evening shift on February 19 to 20, 2016 by the Expert Staffing Agency.  (Yedniak Testimony and Respondent Testimony.)
  5. At the time of this assignment, the Respondent had nearly twenty (20) years of experience as a Certified Nurse Aid with no history of complaints against him.  (Respondent Testimony and Exhibit 8.)
  6. At approximately 3:00 or 3:30 AM on February 20, 2016, HK rang her call button in order to request assistance with toileting.  The Respondent entered HK’s room, pulled the curtain around the bed and began to provide incontinence care to her in her bed.   HK told him several times that she needed to use the walker and ambulate to the bathroom for toileting.  HK’s roommate, GC, spoke up as well.  She told the Respondent that HK needed to get up and use her walker to go to the bathroom.  (Exhibits 1, 7 and 10.)
  7. The Respondent picked up the walker and put it down on the floor with some force.  GC described the sound as a “slam.”  HK reported that he “threw” the walker onto the floor.  (Exhibits 1 and 10.)
  8. The Respondent pulled HK up to a seated position by her arms, and then pulled her arms forward to place them on the walker.  HK yelled, “ouch, you are hurting me.”  The toileting was accomplished and the Respondent assisted HK back into bed.  (Id.)
  9. At approximately 8:45 AM on February 20, 2016, GC informed LPN Amanda DiPinto that the Respondent, whom she identified by name and description, had grabbed HK by the arms the previous evening and that HK had complained of pain.  (Exhibit 7.)
  10. Amanda DiPinto reported the allegation to Debra Yedniak who examined HK and observed 3 3 cm bruises on the top and a 1 cm bruise on the underside of the right forearm and a 1 cm bruise on the top and a 4 cm bruise on the underside of the left forearm.  There was also a .5 cm bruise to her right upper deltoid.  All of the bruises were dark red/purple in color.  HK denied pain at that time.  HK described the Certified Nurse Aid who took care of her overnight as “rough” and “terrible.”  She informed Yedniak that she did not know if the Respondent’s roughness was intentional or not.  (Exhibits 7 and 9-11.)
  11.   Amanda DiPinto contacted the Expert Staffing Agency and indicated that she needed to put the Respondent on suspension until further notice.  His name was placed on the “do not hire” list at Beaumont.   (Exhibits 6 and )
  12. In a hand written report on February 22, 2016, the Respondent indicated that he did not remember failing to take a patient to the bathroom and changing her in bed instead.  He indicated that he would have remembered a blind resident.  (Exhibit )
  13. In an undated Investigation note concerning the incident on February 20, 2016, the writer indicates that the conclusion of the staff at Beaumont was that they were unable to substantiate abuse, but that it was believed that the Certified Nurse Aid in question improperly transferred the resident which caused bruising to her arms.  It was noted that the Certified Nurse Aid would no longer work at Beaumont.  (Exhibit 8.)
  14. “Abuse” is defined in the Beaumont Abuse and Prevention Policy as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.  This also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental or social well-being.  This presumes that instances of abuse of all residents, even those in a coma, cause physical harm, pain or mental anguish.”  (Exhibit 4.)
  15. During an interview with DPH Surveyor Elizabeth Pungitore on April 25, 2016, the Respondent stated that he remembered answering a call light and entering HK’s room on the night in question.  He remembered providing incontinence care to HK in her bed and her asking to go into the bathroom after the care was complete.  He also acknowledged that GC told him that HK used the bathroom, but that he did not recall how he transferred HK out of bed or got her into the bathroom.  He indicated that he was sure he did not yank HK’s arms or cause bruises.  (Exhibit 1.)
  16. CG passed away in early October 20
  17. During his testimony at the October 11, 2016 hearing, the Respondent indicated that he had no memory of any incident on February 20, 2016.

Conclusion and Order

G.L. c. 111, § 72F defines “abuse” as the  willful infliction of injury, unreasonable confinement, intimidation, including verbal or mental abuse, or punishment with resulting physical harm, pain or mental anguish or assault and battery; provided, however, that verbal or mental abuse shall require a knowing and willful physical act directed at a specific person.” 

In contrast, G.L. c. 111, § 72F sets forth the definition of “neglect” as:

failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.

The Petitioner has not met its burden of proving that the Respondent was abusive toward HK on February 20, 2016.  There has been no evidence of any harmful intent on the Respondent’s part.  He did not express any overt animosity to HK or her roommate during his care of HK.  Rather, he carried out his duties, albeit in a manner in which both women believed he was being rough.  Whether this was due to his large, masculine physique and presentation, feeling or being over-worked, or a combination of both is unknown. 

The most that the evidence demonstrates is that the Respondent was neglectful in his care of HK on February 20, 2016.  He did not follow the procedures taught to him  regarding the use of a gait belt in transferring HK.  He did not identify himself or heed the sign posted near HK’s bed that she was legally blind.  Instead, he transferred HK by sitting her up by the arms and placing her arms and hands on the walker in an overly firm manner.  This caused HK discomfort and resulted in bruises.

In reaching this conclusion, I have analyzed the reports of the Beaumont staff members, the DPH surveyor and the Respondent.  It must be noted at this time that there is some discrepancy in the sequence of events reported by CG to Ms. DiPinto, Ms. Yedniak and Ms. Pungitore.  The surveyor’s report reflects that CG indicated she awoke after she heard HK say “ouch.”  The Beaumont staff report that CG was already awake when the Respondent entered the room.  When he entered the room, he pulled the curtain around HK’s bed.  Therefore, it is unclear exactly what, if anything, was seen by CG.  As she is now deceased, these questions cannot be answered.  As such, I cannot afford weight to the assertions of CG. 

At the same time, I have not credited the entire testimony of the Respondent, the individual with the greatest reason to deny the allegations against him in this case.  There are inconsistencies in his report from February 2016, his April 2016 interview with Ms. Pungitore and his October 2016 hearing testimony.  I believe that he does have some recall of the events in question.  However, I hold fast to the belief that he did not willfully inflict injury upon HK on the night in question.  However, his care resulted in discomfort and bruising to HK.    

An Administrative Magistrate has great deference in her findings on the credibility of witnesses.  “[F]indings based on oral testimony will not be reversed unless plainly wrong.” “…The reason for this rule is that the … [officer] who has heard the testimony and seen the witnesses face to face has a better opportunity for determining credibility of their conflicting statements than can possibly arise from reading a record; and has a great advantage in the search for the truth over those who can only read their written or printed word.”  Department of Public Health v. Kory Gagnon, PHNA-12-85 (Division of Administrative Law Appeals, March 28, 2013) citing Vinal v. Contributory Retirement Appeal Board, et al., 13 Mass. App. Ct. 85, 94 (1982) and Selectmen of Dartmouth v. Third District Court of Bristol, 359 Mass. 400, 403 (1971).  From his demeanor and tone of voice during his testimony, as well as his over-emphasis on the all shortcomings Beaumont facility and the health care industry in general, none of which addressed the specific allegations in this case, I find that the Respondent was not credible in certain aspects of his testimony. 

At the same time, his statements concerning his passion for his work, his dedication to the care of the elderly and infirm, and, his love and devotion to his young daughter, as well as his financial woes, all had a truthful ring.  I am entitled to believe portions of his testimony while discrediting others.  Herridge v. Board of Registration in Medicine, 424 Mass. 201, 675 N.e.2d 386 (1997).  I believe that this Certified Nurse Aid of over twenty years is both caring and competent.  While he may feel overworked and under-appreciated at times, I do not believe that he is abusive.

In conclusion, DPH has established, by credible evidence, including its witnesses and documents, that the Respondent’s act of moving HK without the assistance of a gait belt or another Certified Nurse Aid constituted patient neglect, but not the abuse with which he was charged.  Based on the foregoing findings, DPH shall take such action as is consistent with this Decision and/or is required pursuant to 42 U.S.C. § 1396r and G.L. c. 111, § 72J. 

So ordered.

            Division of Administrative Law Appeals,


            Judithann Burke

           Administrative Magistrate                                    


DATED:  November 30, 2016

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