March 15, 2018

Nursing Assistant’s Conduct Found To Be Criminal

Avoiding Liability Bulletin – March 15, 2018

Nurse Assistants are often utilized in health care facilities, especially in long-term care. Most often, they are a valuable member of the health care team. However, in the following case¹, this nursing “personal assistant”, as her title was in the Louisiana facility, was a contemptable member of that nursing staff.

Chonita Browhow worked at an assisted living facility in Louisiana on the Alzheimer’s unit. She was assigned to work four days on and three days off on the 11:00 pm until 7:00 am shift.

During a night shift, Chonita and two other personal care assistants attempted to dress one of the residents on the unit. The resident was uncooperative and “struck” Chonita. Chonita then hit the resident in the face. The resident hit her again. One of the personal care assistants asked Chonita to stop hitting the resident and Chonita left the resident’s room.

About a week later, in December, one of the personal care assistants worked with Chonita again. Chonita was assigned to an 81-year-old non-ambulatory patient. The personal care assistant saw Chonita “preparing to give the resident a shower”. When she saw Conita again, she was standing near the facility’s back door leading to an open-air area which was enclosed for safety purposes but had no heat or air conditioning.

The personal care assistant asked Chonita where the resident was and she replied she was “outside”. When asked why the resident was outside, Chonita stated that the resident was “acting a fool.”

About 15 minutes later, the personal care assistant saw Chonita bring the resident back into the facility in a wheelchair and dressed in flannel pajamas.

Chonita was charged with two crimes as a result of her conduct: one Count of simple battery and one Count of attempted cruelty to the infirmed.¹After a one-day jury trial, the jury returned a “responsive verdict” to each of the Counts. The criminal court then ordered that a pre-sentencing investigation be done.

Among other things, the pre-sentencing report indicated that:

Chonita manifested deliberate cruelty to the two resident victims, “whom she knew to be particularly vulnerable due to their advanced age and infirmity”;
Chonita abused her position because she violated the trust of the residents’ families who believed she would care for their family members;
Chonita refused to make any statements to the court for the pre-sentencing hearing or at the sentencing hearing; and,
The only mitigating factor in this situation was her lack of a prior criminal history.

The court sentenced Chonita to serve five years’ imprisonment at hard labor due to the attempted cruelty to the infirm and six months’ imprisonment on the Count of battery. The sentences were ordered to be consecutively served.

Chonita appealed this verdict on the grounds of the sufficiency of the evidence and that the sentence she was given was excessive.

The appellate court opined that the direct evidence presented in the criminal trial proved beyond a reasonable doubt that Chonita behaved as she did.

For example, the court pointed out that the testimony by a meteorologist indicated that the temperature on the night Chonita placed the resident outside was 32 degrees Fahrenheit.

The personal assistant who asked Chonita where the resident was and the facility administrator both testified that the resident’s condition would “have prevented her [the resident] from finding her way outside on her own or back inside on the evening in question.”

The court also opined stated that the “despicable actions” by Chonita clearly established a specific intent to mistreat the resident.

In regard to the excessive sentence allegation, the court held the crimes against the two residents were serious. In addition, the harm done to the victims and their families was not to be overlooked. And, due to the “lack of remorse” shown by Chonita , the sentences were appropriate.

The court affirmed the convictions and the sentences of the lower court.

I doubt that you as a nursing assistant or a nurse’s aide would behave toward residents for whom you care in the way Chonita did. However, you might work with some assistants that have a propensity to conduct themselves in a similar manner. For you and your fellow assistants remember the following:

You are employed to provide care to residents in an ethical, legal, and humane manner;
Families put their trust in you, as do the residents, that you will provide ethical, legal, and humane care;
If you find yourself unable for whatever reason to provide care that is consistent with your ethical, legal and humane duties, seek help through counseling, changing your job, or taking a leave from your position until you are able to meet the duties required of you;
If you observe another team member who is abusive or intentionally mistreating a resident, report that observation immediately to your nurse supervisor;
As has been highlighted in past Bulletins, fellow co-workers can testify to conduct they observe by you if a case is filed;
Criminal charges can be filed against you or a fellow co-worker if your or your team member’s actions fit the elements of a particular crime or crimes; and,
Professional liability insurance excludes coverage of criminal charges.

FOOTNOTES

State v. Browhow, No. 41,686-KA, Court of Appeal of Louisiana, Second Circuit, December 13, 2006.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

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About the Author

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

March 1, 2018

Nursing Staff’s Professional Negligence Causes Death of Patient

Avoiding Liability Bulletin – March 1, 2018

Lloyd Thomas, seventy-one, underwent bypass surgery and was hospitalized for eighty-four days after the surgery due to complications. During his hospitalization, he had a feeding tube. He steadily recovered but needed additional rehabilitation so he was transferred to HCRA, a rehabilitation facility.¹

On admission, it was discovered Lloyd had colonized MSRA. Despite this development, he did well at HCRA, got along with staff, had physical therapy and he experienced increased mobility and strength.

However, after twenty-five days at HCRA, his condition “severely deteriorated” and he was taken immediately to a hospital ED. Mr. Thomas died less than twenty-four hours later.

His death certificate indicated that he died of multi-system organ failure secondary to sepsis.

The family filed a liability case against the nursing home, alleging that Mr. Thomas was: “not properly cleaned or repositioned, causing him to develop decubitus ulcers; not properly nourished; not given ordered medications; and not assessed as to his urine output and bodily temperature”.

They also alleged his room was not cleaned and documentation was inadequate in his medical record. Moreover, the allegations included some of the medical record was fabricated.

The trial court entered a judgment on behalf of the family. HCRA appealed that decision. The appellate court had several legal procedural issues and amount of compensation issues to decide, but the one issue this Bulletin is focusing upon is HCRA and its nursing staffs’ negligence that caused the death of Mr. Thomas.

Lloyd was on Lasix while in the nursing home. The Director of Nursing and several physicians at the home testified at the trial. It was essential to monitor the fluid input and output of a patient when on this medication, according to their testimony.

Because Lloyd had a feeding tube and a catheter, it should have been very easy to do so. But, the Director of Nursing admitted the patient’s fluid input and output were not properly charted as required by the nurses’ overall standard of care.¹

Mr. Thomas was also dehydrated and not well nourished when he left the home for the hospital, according to testimony from the Medical Director at the home.

Family testimony revealed that Mr. Thomas had two ulcers on his back, behind his hip bones. His medical record, however, did not indicate anything concerning the existence of, or treatment for, these ulcers.

Yet, when he was rushed to the hospital ED, the ED physicians documented two stage three decubitus ulcers on his back that were “necrotic and oozing blood”. Had Mr. Thomas been re-positioned every two hours, which is the established overall standard of care, a physician expert testified that he would have “expected him to not have any ulcers”.

Mr. Thomas also suffered from diarrhea after his condition began to deteriorate. Family testimony disclosed that when the diarrhea occurred, the family would ring the nurses but they “would not come”. Mr. Thomas was left lying in his feces.

The appellate court held that the evidence and inferences testified to at the trial level fully supported the jury’s verdict in favor of Mr. Lloyd’s family. In responding to the fact that the decubitus ulcers were not noted in Mr. Thomas’ medical record, the court stated: “The fact that these lesions were not noted in the rehab facility’s records does not dispute their existence. Instead, it tends to establish a high degree of conscious indifference by the rehab facility’s nursing staff to the patient’s rights despite awareness of an extreme risk of serious harm”.²

This case is an appalling one, in my opinion. Mr. Thomas had been making progress when admitted to the nursing home, but, due to the lack of nursing care by the nursing staff, his condition deteriorated.

In addition, other team members, physicians and/or administrators included, apparently failed to oversee the patient’s care and failed to intervene to prevent what happened to Mr. Thomas. Their respective testimony, although truthful, cemented liability for HCRA.

Clearly, the nursing staff, including the Director of Nursing, were “indifferent” to Mr. Thomas, both as a patient and as a human being. How they were able to completely ignore him and his required care is beyond comprehension.

Due to the lack of basic and overall nursing care, it would not be a surprise if the Director of Nursing and the nursing staff involved would face disciplinary proceedings before the state board of nursing for unprofessional conduct. They never came close to providing care required by their respective overall standard of care and standards of practice.

What is also interesting in this case is that those who testified about the non-care of Mr. Thomas were employees of the facility and who had a part in his care.

Whether you are practicing in a long-term care facility or other health care setting, this case underscores significant recommendations for your practice. They include:

Provide patient care that is ordered, meet your standards of practice and overall standard of care, and what is required by your legal and ethical duties;
When a patient or family member rings or asks for help for their family member, respond as quickly as possible;
Document all care provided accurately and completely;
Never fabricate or falsify a patient’s medical record;
Testimony from staff members and physicians who care for a patient may easily support a finding of negligence that leads to a patient’s death;
If a Director of Nursing or CNN, ensure that your nursing staff is providing the care required for all patients; and
Regularly review the Code of Ethics for Nurses with Interpretive Statements and incorporate the Code into your everyday practice.

FOOTNOTES

HCRA of Texas, Inc., d/b/a Heartland Health Care Center-Bedford v. Margarie Fay Johntson, Tommy Lloyd Johnston,

and others, No. 2-03-321-CV, Court of Appeals of Texas, Fort Worth, November 3, 2005.

“Decubitus Ulcers, Sepsis: Court Links Patient’s Death To Substandard Nursing Care”, Legal Eagle Eye Newsletter for the Nursing Profession, December 2005, 6.

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Nancy Brent

Are Monthly Equipment Inspections Sufficient?

Avoiding Liability Bulletin – March 2018

A Case in Point

In a relatively recent case from Wisconsin, a trial court and then an appeals court were faced with determining whether or not a fitness facility could be found liable for injuries a client suffered while using an exercise machine at the club.[1] A big issue in this case centered upon how frequent and how detailed equipment inspections have to be to enable an injured party to recover upon his claim of negligence.

The Testimony

The case was filed by a facility user directly, without counsel. He alleged he was injured while using an exercise machine at the facility which was a lap pull-down kind of machine. The plaintiff described the injury he suffered on the machine as follows:

“It’s like a pulley system bar and I had about two hundred pounds on it. And I was going for the pull-down portion . . . the cable snapped and the bar came down and into my forehead causing my mouth to clamp shut tight, put a gash in my forehead. There was some bleeding. I chipped the front of my tooth off, had some bleeding in my mouth, and was taken by ambulance to the hospital for a CAT scan and they told me that I had suffered a concussion.”

The user also testified that he had been trained to properly use the pull-down machine when he first joined the gym.

Once the plaintiff completed his testimony, defense counsel moved to dismiss the case for a lack of proof due to the lack of medical and causation evidence. The plaintiff countered the motion by specifying that he was only seeking damages for pain rather than medical expenses. The trial court concluded that the plaintiff made out a basic case and that he could be awarded damages for pain and suffering if he could prove negligence.

The defense then offered the following testimony from the owner of the facility:

The owner testified that safety inspections were conducted on the pull down machine “on a monthly basis” and “we do a visual equipment inspection so we go through and we ensure that there’s no fraying or wearing on any of the cable[s].”

The owner also clarified that “we do replace cables pro-actively.” He noted that a “basic equipment inspection” was conducted sometime in July 2014, prior to the injury on August 29, 2014.

The plaintiff was then offered the opportunity to cross examine the owner about the facility’s equipment inspection procedures. The cross examination went as follows:

Q: Could you tell me then: Have you ever had an issue where you have not seen the cables broken or busted; somebody has pointed that out to you? A: You mean as far as a member pointing out something? Q: Right. A: Yes, that’s [what] happened. Q: So maybe you missed something? A: Possibly. We have, you know, I wouldn’t say that we’ve had every single one, you know, caught it but when we’ll usually see signs of wear then we pro-actively replace that cable.

On redirect examination, the owner testified that the machine did not show any observable wear or fraying of the cable.

The defense also presented testimony from the club manager and in this regard, the court noted the following:

She was present at Anytime Fitness on the day of the accident and had reviewed a video of the accident. The manager explained that, in her opinion, Willard had been improperly using the pull-down machine when the cable broke. The manager additionally testified that “[w]e have re-enacted [Willard’s use of the machine] through video using trainers and staff and found it impossible to use that weight properly with proper form at any level.”

In the face of this testimony, the plaintiff contended that he used the machine in the exact way he had been taught to do so by the facility’s staff.

The Court’s Decision

Once the testimony concluded, the court determined that the plaintiff failed to prove negligence. In this regard the trial court stated:

[T]he burden is on the plaintiff to show by a preponderance of the evidence that the defendant fitness center did not use reasonable inspection and reasonable maintenance of its equipment and facilities. The testimony here from the owner of the facility was that they have a procedure where they do a monthly visual inspection of the cable to try to observe any types of cracking or tearing or fraying or any possible defects that might exist in the cable and if they observe that then they will proceed to fix it or replace the particular cable. There was an inspection of this cable of this machine and it was done in the month preceding and the month of and the month after. And before the incident, it doesn’t appear that the inspections revealed any defects or any areas of concern that the plaintiff had in regards to the cable.

In this regard, the trial court also pointed out that there was no evidence presented to it that the club’s inspections were not adequate. In this regard, the court noted:

“[t]here hasn’t been any testimony here regarding periodic changing of cables, that a manufacturer says every five years you need to change the cable” and “[t]here hasn’t been any testimony that there needs to be a more rigorous daily inspection here.”

Essentially, the plaintiff failed in his attempt to establish negligence because he presented no evidence as to what kind of maintenance was necessary based upon the manufacturer’s suggested maintenance instructions or industry standards.

The Appeal’s Court Opinion

While the plaintiff appealed the trial court’s decision, the appeals court noted the following:

It is true that the owner testified that it was possible that the inspections “missed something,” but the owner also testified that the particular cable at issue showed no signs of wear and therefore any defect was undetectable by visual inspection. As the circuit court noted, Anytime Fitness conducted one of its monthly inspections prior to the accident. Aside from his pointed cross-examination of the owner, [the plaintiff] . . . provided no evidence showing that Anytime Fitness’s inspection procedures were lacking. He provided no evidence that Anytime Fitness should have known that the cable was defective or should have been replaced sooner. Nor did he provide any evidence concerning how long the cable was expected to last. Accordingly, the court found that . . . [the plaintiff] had not proved that these procedures were negligent, and that [the trial court’s] finding is a reasonable one sufficiently supported by the evidence.

What Kind of Equipment Maintenance is Required

Manufacturer’s Recommendations

Notwithstanding the fact that this case was filed by the injured party without counsel and that the required evidence was not presented, the question arises as to what kind of maintenance is required for exercise machines so that claims like this can be avoided. As a starting point the instructions provided by machine manufacturers should be reviewed and followed as to equipment inspections, maintenance procedures and replacement requirements for worn or broken parts. Recommendations for equipment replacement should also be noted and efforts made to comply with all of these instructions or recommendations.

Industry’s Standards and Guidelines

Aside from manufacturers’ recommendations, industry standards and guidelines should also be reviewed and implemented when appropriate. Such standards, including the American College of Sports Medicine’s (ACSM’s) Health/Fitness Facility Standards and Guidelines, Fourth Edition, 2012 provides a framework of preventive maintenance practices for exercise equipment. Recommendations for daily cleanings, weekly inspections and monthly lubrications and as needed, repairs and replacements, are put forth in this statement. The maintenance recommendations include weekly equipment inspections and recommendations for the tightening of any loose items upon an as needed basis. Had the plaintiff in this case put forth these kinds of standards, a different result may have arisen in this case. Fitness professionals should take note and govern their inspection and preventive maintenance practices accordingly!

The Bottom Line

All fitness professionals should review equipment manufacturers’ recommendations as well as industry standards and guidelines to determine what maintenance activities should take place on a daily, weekly, monthly and regular basis. Adherence to such schedules can go a long way to avoid injuries in the first place and resulting claims and suits.

Footnotes

[1] Willard v K Smith Holdings, 111517 WICA, 2016AP2431, Court of Appeals of Wisconsin, District II, November 15, 2017.

This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented. It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work. If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought. Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

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David Herbert

Mandatory Reporting, Confidentiality When Communicating With Other Health Care Professionals and Access to Records vs. Subpoena for Records

Avoiding Liability Bulletin – March 2018

MANDATORY REPORTING – DIFFERENT KINDS

Most licensed mental health practitioners are aware of their duty to report knowledge or reasonable suspicion of child abuse, elder abuse, and dependent or vulnerable adult abuse. They are also keenly aware of their duty to report such abuse within specified time frames, since a violation of such laws can result in serious consequences for licensees – that is, possible civil, administrative, and criminal liability. Practitioners may not be aware of other reporting duties that state law may impose upon licensees (or others that affect licensees).

For example, there may be a law that requires a report to be made to the licensing board when a malpractice or related claim or action against the practitioner is settled or when there is a malpractice judgment entered against the practitioner. The reporting duty could be imposed upon the licensee, the court, or the malpractice insurance company (or another) depending upon the particulars of the situation (insured/uninsured and the nature of the underlying claim or litigation) and applicable law. Settlements for so-called “nuisance value” may also need to be reported – depending upon the amount of the settlement. Failure to make a required report may result in a fine or other consequences specified in state law.

State law may require licensees to report to the licensing board, either upon renewal of the license or sooner, any conviction of a crime (felony or misdemeanor) – such as driving under the influence of alcohol or drugs, sexual contact with a patient, battery, petty theft, and unlawful possession of drugs (just to name a few). A plea of “no contest” may also need to be reported to the licensing board. Such pleas are sought by defendants in criminal proceedings in order to protect their rights when contesting future civil proceedings involving the same conduct. Failure to make a required and truthful report can result in disciplinary action and other negative consequences. When a report is made, the licensing board may seek to take action against the practitioner if the criminal conduct is substantially related to the qualifications, functions, or duties of the licensee (or a similar standard).

Additionally, a professional association’s executive director, or other representative or employee, may be required, under specified conditions, to report certain findings or final actions taken by an association’s ethics committee or board of directors against a member of the association. Such conditions may include situations where the practitioner’s membership is suspended for a specified period of time or is otherwise disciplined for reasons connected to the practitioner’s competence or professional conduct. Whether or not such a statute exists in your state, and whether it applies to a particular professional association, depends upon the specific wording and interpretation of the statute. Such statutes may be found in the sections of state law dealing with health care peer review and peer review bodies, including those that deal with hospital staff privileges.

Finally, don’t forget to notify the licensing board of a name change or an address change within the time frame and under the circumstances that may be specified in law or regulation.

CONFIDENTIALITY – COMMUNICATING WITH OTHER HEALTH CARE PRACTITIONERS

Are you fully aware of the law or other legal authority that allows you to break confidentiality (release patient information) without the written and signed authorization of the patient? Are you aware of the many of such exceptions to confidentiality that the law may allow? Perhaps the most important aspect of the law to understand is that which HIPAA has long-recognized in its regulatory scheme known as the Privacy Rule, significant parts of which were influenced by long-existing and well accepted California law. The exception to confidentiality to which I refer is the right of the mental health practitioner to share information with other licensed health care providers or facilities, without the written and signed authorization of the patient, if done for purposes of diagnosis or treatment of the patient.

Understanding this exception to confidentiality helps the practitioner deal with situations where clinical prudence might call for the practitioner to seek information from (or share information with) other practitioners in order to properly deal with the treatment situation extant. It allows, among other things, the practitioner to speak with a patient’s physician or former therapist and to share information with the patient’s physician or other health care provider. Such sharing of information may be necessary for the rendering of safe and appropriate care. Unfortunately, not all licensed practitioners and virtually no health care facilities may know about this exception to confidentiality – or they simply choose to routinely require a signed authorization. But in times of urgency, this is an important principle to remember. Convincing or simply educating a colleague that a signed authorization is not required (when the information is shared for purposes of diagnosis or treatment) is more easily accomplished when reference to the specific statute is given to the hesitant practitioner.

Those who are governed by state law should be familiar with the statutory language in their state that allows such communication or sharing of information so that the breadth or limitations of this well-accepted general principle are well understood. For those who are covered by the HIPAA -related Privacy Rule (because they are a “covered entity”), my assumption in this article is that the reader is familiar with the federal regulation that, among other things, allows covered health care providers who have a direct treatment relationship with the patient to disclose the patient’s personal health information, without the patient’s written authorization, to carry out the health care provider’s own treatment, payment, or health care operations.

ACCESS TO RECORDS vs. SUBPOENA FOR RECORDS

I have spoken with practitioners who have conflated the laws that deal with a patient’s access to records and the laws that govern the practitioner’s reaction to a subpoena for records issued by the attorney for a party adverse to the interests of the patient. Perhaps the practitioner receives a subpoena for a patient’s records from the attorney for the person or entity (e.g., a former employer or health care practitioner) that the patient is suing. Part of the lawsuit alleges that the defendant negligently or intentionally caused emotional or psychological harm to the patient. Some practitioners mistakenly think that in such situations they have the option to provide a summary of the records in lieu of the complete record, especially when the patient is reluctant for the treatment records to be released.

The right of a mental health practitioner to provide a summary of the records becomes relevant when a patient requests (usually a written request) a copy of the treatment records – not when a properly issued subpoena for records has been served on behalf of a party adverse to the interests of the patient. When there is litigation initiated by the patient, the defendant may (depending upon the specific allegations) be entitled to the complete treatment record of the patient. It is possible for the patient’s attorney to seek a protective order to protect certain portions of the record from disclosure, but protective orders are not easily obtained and, if granted, tend to be limited in scope.

Once the patient puts his or her mental or emotional condition into issue in a lawsuit by alleging mental or emotional harm, justice requires that the plaintiff (the patient) prove the harm or damage alleged and that the defendant be allowed to fully contest the allegations. The psychotherapist-patient privilege is waived as a matter of law. Production of the records is necessary in order to ensure a fair proceeding and a just result. In the absence of an agreement between the parties or a protective order (both rare), there are no summaries allowed in this scenario!

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About the Author

Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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