Decision  Dept. of Public Health v. Bernal, Alexander - Ruling on Motion for Clarification (PHNA-16-314)

Date: 12/21/2016
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

Ruling on Petitioner's Motion for Clarification


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.  Ergo, DPH shall refrain from entering the Respondent’s name in the Nurse Aid Registry.  

So ordered.

            Division of Administrative Law Appeals,


            Judithann Burke

           Administrative Magistrate                                    


DATED:  December 21, 2016

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