Decision  Dept. of Public Health v. Ghunney, William (PHNA-16-306)

Date:	03/09/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	PHNA-16-306

• Petitioner: Department of Public Health
• Respondent: William Ghunney
• Appearance for Petitioner: Steven Chilian, Esquire
• Appearance for Respondent: David J. Officer, Esquire
• Administrative Magistrate: Judithann Burke

Decision

Pursuant to G.L. c. 111, §§ 72F-L, 42 U.S.C. 1396(R), and 105 C.M.R. 1.55, the Petitioner, Department of Public Health (DPH), issued a Complaint Investigation Report that included a valid finding of patient abuse against the Respondent, William Ghunney, on May 2, 2016.  (Exhibit 1.)  The DPH Notice of Agency Action was issued on June 7, 2016.  (Exhibit 2.)  The Respondent’s claim for a hearing was received on July 1, 2016.  (Exhibit 3.)  

I commenced a hearing on May 9, 2017 in the offices of the Worcester Registry of Deeds, 90 Front Street, Worcester, MA.  On that day, I marked twelve (12) exhibits.  The Petitioner presented the testimony of the following witnesses:  Jill McDonald, Licensed Practical Nurse (LPN) and Staff Development Coordinator and Infection Control Coordinator at Spring Valley Center in Worcester, MA; N.G., a male resident at Spring Valley Center for sixteen (16) years; Gayle Sharigian, Director of Nursing (DON) at Spring Valley Center; and Grace Asamoah, former Certified Nurse Aide (CNA) at Spring Valley.  The Respondent testified in his own behalf.  The hearing was continued to and heard to completion on July 26, 2017 at the offices of the Division of Administrative Law Appeals, One Congress Street, Boston, MA.  On that day, the Respondent presented the testimony of DPH Surveyor Elizabeth Pungitore.  Ms. Pungitore’s Surveyor’s Notes pertaining to her May 2, 2016 Investigation at the Spring Valley Center were marked as Exhibit 13.  On both days, the hearing was digitally recorded.  The case record closed on November 1, 2017 upon receipt of the Respondent’s post-hearing memorandum.  (Attachment A.)

Findings of Fact

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

1. The Respondent, William Ghunney, is now fifty-nine (59) years of age.  Originally from Ghana, he has resided in the United States since 2002.  He became licensed as a Certified Nurse Aide (CNA) in or about 2009.  Mr. Ghunney is married and has three (3) children.  (Respondent Testimony.)
2. Spring Valley Center in Worcester, MA is a long-term care facility.  The facility contains eighty-two (82) beds.  There is a written abuse policy at Spring Valley that all employees are informed about at the time of their hire.  They are re-educated on an annual basis.  (Sharigian Testimony and Exhibit 4.)
3. Prior to March 2016, DON Sharigian imposed discipline against the Respondent after a complaint of verbal abuse.  (Sharigian Testimony.)
4. The Respondent was working as a CNA at Spring Valley on March 16, 2016. 

He worked the 3 PM-11 PM shift and was assigned to the third floor.  He and one other CNA, Grace Asamoah, were assigned to that unit.  The shift was short by one CNA.  (Respondent and Asamoah Testimony and Exhibit 5.)

5.   At or about 4:00 PM on March 16, 2016, Spring Valley resident N.G. rang his call light and requested a change of clothing.  He had been incontinent of urine in his disposable brief.  The Respondent answered by saying, “not now, I’m busy.”  (N.G. Testimony.)
6. At that time, the Respondent was providing care to another resident and then had to cover the residents’4:00 PM smoke break.  (Respondent Testimony and Exhibit 9.)
7. N.G.’s diagnoses were schizoaffective disorder, anxiety, chronic obstructive pulmonary disease, atrial fibrillation and anemia.  He was taking the medication Coumadin in March 2016 and was prone to bruise easily.  (Exhibit 6.)
8. N.G. waited another hour and rang the call light again.  The Respondent answered and said, “I told you not to put the call light on again, I’m busy.”  He then left N.G’s room. (Id.)
9. N.G. rang the call light again at around 6:30 P.M.  Grace Asamoah entered his room to provide assistance.  She helped him into bed from his wheelchair.  She noticed that the bed was wet and she left the room to obtain linens.  At that time, she called the Respondent to assist her. (Asamoah Testimony.)
10. While Asamoah was obtaining linens, the Respondent entered N.G.’s room in order to assist her with the changing process.  N.G. was loud and antagonistic toward the Respondent.  He yelled some words to the effect, “get out of here you son of a bitch!”  The Respondent answered, “you’re the father!” (Respondent and Asamoah Testimony.)
11. When Asamoah returned, the Respondent told N.G. to turn onto his side.  He said words akin to, “get over there.” The Respondent then grabbed N.G. in the area of his left hip and started to turn him.  The Respondent’s grip was hard and painful to N.G.  N.G. said, “it hurt, William, you’re hurting me.”  N.G. began lashing out at the Respondent with his arms in attempts to hit him but did not make contact.  The Respondent left N.G.’s room.  (N.G. Testimony.)
12. Asamoah completed the change of the bedding and N.G.’s clothes and got him ready for bed.   (Id.)
13. N.G. reported the incident to a nurse on duty and another CNA at 8:30 or 9:00 PM that evening.  A skin check revealed two purple quarter-sized bruises between N.G.’s left hip and the bottom of his rib cage.  (Id.)
14. The March 16, 2016 incident was reported to LPN Jill McDonald on March 17, 2016.  She contacted the Respondent and requested a written statement.  She made several attempts to contact Asamoah to no avail.  Asamoah eventually provided a written statement.  (McDonald Testimony and Exhibits 9-12.)
15. During McDonald’s interview of the Respondent, he told her that the incident had occurred at approximately 10:30 PM toward the end of his shift.  He also indicated that he believed N.G. had intentionally urinated in the bed.  (Exhibit 9.)
16. The written statements of the Respondent and Asamoah reflect that the incident occurred at the end of their shifts.  The Respondent noted that his only contact with N.G. during the incident in question was when the latter rolled toward him.  Each CNA denied hearing N.G. cry out in pain during the changing process on March 16, 20  (Respondent and Asamoah Testimony and Exhibits 10 and 11.)
17. DON Gayle Sharigian was also notified of the incident on March 17, 2016.  She terminated the Respondent’s employment.  She also terminated Asamoah’s employment because Asamoah was a mandatory reporter who did not report the incident and did nothing to stop it.  (Sharigian Testimony and Exhibit 7.)
18. DPH Surveyor Elizabeth Pungitore conducted her investigation on May 2, 2016.  Her notes from that investigation reflect that N.G. told her that he believed that the Respondent was gay and that he did not want to receive care from him.  Pungitore also noted that other employees at Spring Valley informed her that N.G. could be “accusatory.”  Ms. Pungitore’s notes reflect that N.G.’s version of  events was corroborated by his roommate, although the roommate was not able to see the incident because the privacy curtain was drawn.  (Pungitore Testimony and Exhibit 13.)

Conclusion

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. 

The Petitioner has met its burden of proving that the Respondent was abusive toward N.G. on March 16, 2016.  A preponderance of the evidence reflects impatience and haste on the Respondent’s part on the day in question.  He was assisting in the care of a hostile resident and he allowed himself to be drawn into the acrimonious situation.  He was not only verbally abusive, but he displayed his disapproval for the resident’s behavior by moving him roughly during the changing process.  This resulted in two bruises on the resident’s left side and pain to the resident. 

In reaching my conclusion, I have credited the testimony of the resident, N.G. notwithstanding his known propensity to be accusatory and somewhat “high maintenance” in his care-related requests.  His testimony was consistent with his  numerous reports to Spring Valley staff members.  The DPH Surveyor’s notes reflect that his roommate, who was present in the room at the time of the event, corroborated his version of the events.  Further, N.G. had two fresh bruises on his body in the area where he claimed to have been roughly handled that were consistent with pressure points from a hand.  That he may not have liked the Respondent or that he believed the Respondent to be gay are nonfactors in my analysis. I afford those opinions no weight.  There is no evidence in the record that casts doubt on N.G.’s truth and veracity.

I have not credited the self-serving testimony of the Respondent and Grace Asamoah.  My impression is that they were covering for one another during their testimony.  Each went out of his/her way to discredit N.G. and portray him as the sole aggressor during the incident.  Their version of the time line of events is also suspect.  The Respondent admitted to covering the smoke break at 4 P.M. at the time of N.G.’s first call.  It is hard to believe that N.G. would have been left in his own waste until 10:30 PM when the Respondent and Asamoah finally got around to assisting him.  Moreover, N.G. reported the incident to Spring Valley staff at or about 8:30 or 9:00 PM.  I view the “time discrepancy” as a red herring, and see it as an attempt to discredit N.G.     

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 of N.G., along with the complaint of short staffing on the 3-11 shift on March 16, 2016, none of which addressed the specific allegations in this case, I find that the Respondent was not credible in several aspects of his testimony. 

In conclusion, DPH has established, by credible evidence, including its witnesses and documents, that the Respondent’s act of moving N.G. on March 16, 2016 and his combative words all constituted patient abuse.  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,

            BY: 

            Judithann Burke

           Administrative Magistrate                                    

 

DATED:  March 9, 2018