Delaware Department of Health & Social Services v. Jain
Delaware Department of Health & Social Services v. Jain
Opinion of the Court
The Delaware Department of Health and Social Services appeals from a Superi- or Court order reversing a DHSS Administrative Hearing Officer’s decision to place Madhu Jain on the Adult Abuse Registry for three years, because Jain had “neglected” a patient as defined by 11 Del. C. § 8564(a)(8) and 16 Del. C. § 113K9).
FACTUAL AND PROCEDURAL BACKGROUND
The Delaware Psychiatric Center (DPC) employed Jain, a registered nurse since 1992, for over 17 years. On Saturday morning, April 4, 2009, Jain was the charge nurse on the Kent 3 unit (K-3 unit) at the DPC. As charge nurse, Jain was responsible for all of the K-3 unit’s operations, including the unit’s staffing assignments. That day, the K-3 unit was short-staffed.
At around 8:23 that morning, B.W.,
Four or five minutes later, while checking the nurse staffing list at the nurse station, another DPC attendant informed Jain that B.W. “had gone bad.” Jain, along with two other nurses, Marie Keller and Clifford Truitt, immediately rushed back to B.W. and found that B.W. was no longer breathing. At that point, Truitt and Jain got emergency medical equipment — Truitt retrieved the oxygen mask and CPR shield, and Jain retrieved the oxygen tanks. Keller remained with B.W. and began to perform CPR. Jain then returned to the nurse’s station to call 911. Ultimately, their efforts to revive B.W. were unsuccessful.
By letter dated July 7, 2009, DHSS notified Jain that it intended to place her name on the Adult Abuse Registry for five years.
During the administrative hearing on December 17, 2010, several witnesses testified, including Jain, Keller, and Truitt. DHSS also presented testimony from Ralph Coverdale, another nurse on duty that day, and Earl Robinson, a nurse consultant at the DPC. The main issue at the hearing was whether Jain had “neglected” B.W. by failing to provide a “hands-on assessment” when she found B.W. lying on the floor and unresponsive.
Robinson, who was not present at the DPC during the April 9th incident, opined
According to Jain, B.W. had only been at the DPC for four days, and B.W.’s admission report form indicated that she “had a history of laying [sic] on the floor ... and acting out.”
Coverdale, who had observed B.W. shortly after Jain left to get help, also testified that B.W. appeared to be breathing. Therefore, it was unnecessary to conduct a further assessment, because CPR training dictates that if a patient is visibly breathing, initiating CPR is inappropriate.
Truitt testified that in his opinion, “finding a patient on the floor in a psychiatric hospital” would indicate that “the patient was suffering from a psychiatric, not a medical, event.”
After hearing testimony, the hearing officer concluded that Jain’s conduct constituted “neglect” within the meaning of 16 Del. C. § 1131(9)(a), because Jain had “placed her personal interests of safety before [B.W.’s] interests to the point that [B.W.’s] safety was in jeopardy and [Jain had] failed to attend to [B.W.’s] safety.”
The hearing officer also identified several mitigating factors: (a) the DPC was short-staffed that day; (b) Jain had been working a double shift; (c) the DPC did not provide training to determine whether a patient’s crisis is psychological or medical in nature; and (d) Jain was cautious about patients attacking her because of previous assaults.
Jain appealed to the Superior Court, which reversed the hearing officer’s decision on the ground that DHSS had failed to show how Jain’s conduct violated an established standard of care.
STANDARD OF REVIEW
On an appeal from an administrative agency, this Court’s function is limited to determining whether there is substantial evidence in the record to support the agency’s decision and whether that decision is free from legal error.
ANALYSIS
The issue presented on appeal is one of first impression, requiring this Court to determine which mental state, if any, should apply to the term “neglect” for purposes of placement on the Adult Abuse Registry. The hearing officer determined, “[n]eglect can be established through a
I. The Patient Abuse Act and the Adult Abuse Registry
As this Court explained in Robinson v. State,
For purposes of the Adult Abuse Registry, the General Assembly explains whát factual scenarios constitute “neglect” in two different sections, 11 Del. C. § 8564(a)(8) and 16 Del. C. § 1131(9). Both sections cite examples of neglect to be:
a. Lack of attention to physical needs of the infirm adult including, but not limited to, toileting, bathing, meals and safety;
b. Failure to report the health problems or changes in health problems or changes in health condition of an infirm adult to an immediate supervisor or nurse;
c. Failure to carry out a prescribed treatment plan for an infirm adult; or
d. A knowing failure to provide adequate staffing which results in a medical emergency to any infirm adult where there has been documented history of at least 2 prior cited instances of such inadequate staffing levels in violation of staffing levels required by statute or regulations promulgated by the Department of Health and Social Services, all so as to evidence a willful pattern of such neglect.32
Notably, “a-c” provide no suggestion of a mens rea and “d,” while purporting to be an example of neglect, requires a “knowing” act. Upon a finding of neglect, the offender’s name is placed on the Adult Abuse Registry.
II. The Superior Court Applies A “Standard of Care” Analysis To “Neglect” Under The Patient Abuse Act
At issue here is what DHSS must show to prove that there was a “[l]ack of attention to [the] physical needs” of a patient that amounts to “neglect” under 16 Del. C. § 1181(9)(a), thereby warranting registration on the Adult Abuse Registry. The hearing officer relied on Holden v. State, Department of Health & Social Service.
Only two other Superior Court cases directly address the issue on appeal and both cases followed the Holden test. In Arege v. State, the Superior Court concluded that the evidence insufficiently established that the respondent, a counselor for an elderly care facility, had neglected a patient where the State failed to introduce any testimony that would establish whether the respondent had violated a written policy, procedure, or protocol created by the facility or by DHSS.
III. The Neglect Statutes Do Not Incorporate a “Standard of Care” Concept
The problem with adopting the Holden test and accepting DHSS’s position on appeal is that the neglect statutes, Sections 8564(a)(8)(a) and 1131(9)(a), are not phrased in terms of violating a standard of care within the health care provider community. Rather, subsection (a) simply explains neglect to be a “[l]ack of attention to [the] physical needs of the infirm adult.” The Superior Court, however, seems to have imported the requirement of a standard of care from the similar, yet distinct, health care provider negligence/malpractice jurisprudence, and equates that with “lack of attention.” Specifically, 18 Del. C. § 6801, which governs medical negligence/malpractice actions, provides that “[t]he standard of skill and care required of every health care provider in rendering professional services or health care to a patient shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence.”
Were we to adopt DHSS’s position and incorporate a medical negligence/ malpractice standard into the statutory description of neglect, we would be ignoring the distinction the General Assembly had in mind when it chose different words to form the “neglect” requirement of Sections 8564 and 1131 (i.e., “lack of attention”). That wording differs from the concepts expressed in the medical negligence/malpractice statute (ie., “[t]he standard of skill and care required ... shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence”). Indeed, Sections 8564 and 1131 are written in terms of a basic level of care for a patient, regardless of who may be the medical provider, whereas the medical negligence/malpractice regime considers the level of training and expertise of the medical provider in determining wrongdoing.
Moreover, these statutes have materially different purposes. As the Superior Court found, “the sole purpose of the Adult Abuse Registry is protection of the individuals under the care of federally certified facilities.”
IV. The General Assembly Intended a Mental State of Recklessly, Knowingly, or Intentionally
The statute explains “neglect” to be a
In 1999, the General Assembly amended the definition of “neglect” in 16 Del. C. § 1131 by deleting the strikethrough text, which follows:
(3) “Neglect” shall mean
a. -Intentional lack of attention to physical needs of the patient ...
b. intentional failure to report patient or resident health problems ...
c. Intentional failure to carry out a prescribed treatment plan ...49
In the synopsis that accompanied that amendment, the General Assembly explained: “This Act expands the protections afforded by the Patient/Resident Abuse Statutes to include, within the definitions of what constitutes neglect, acts which are done knowingly or recklessly as well as those which are done intentionally.”
“The goal of statutory construction is to determine and give effect to legislative intent.”
We also find it helpful to look at the statutory scheme as a whole to determine what the General Assembly intended.
Determining that an act of neglect be done knowingly, recklessly, or intentionally for purposes of placement on the Adult Abuse Registry is consistent with the remedial scheme that the General Assembly has constructed as well as common law remedies. There is a menu of options available to remedy a single act of “neglect,” depending on its nature. First, if the State can prove a reckless, knowing, or intentional act of neglect beyond a reasonable doubt, then a criminal sanction is available.
V. Application of the Hearing Officer’s Factual Findings to the Correct Interpretation of the Law
The hearing officer applied the wrong legal standard — a negligent or a careless mental state rather than a reckless, knowing, or intentional mental state to Jain’s conduct. We think the hearing officer and to some extent the Superior Court’s incorrect understanding of the applicable standard results from the General Assembly’s use of the term “neglect” — a term similar to, but not to be confused with common law negligence. While the General Assembly chose a term similar to the traditionally accepted common law tort term of art, the General Assembly’s own clear expression in the bill’s synopsis is squarely at odds with the ordinarily understood usage in the tort context. Should the General Assembly choose to clarify its policy by including breach of the applicable standard of care practiced by a reasonably prudent person, it should do so clearly and unequivocally, not by the use of a term of art — “neglect” to describe actions which require reckless, knowing or intentional harm to patients as a predicate for sanctions. Notwithstanding the understandable confusion, the hearing officer erred as a matter of law. We independently accept the hearing officer’s factual findings and conclude the facts do not support a finding that Jain recklessly, knowingly, or intentionally “neglected” a patient.
CONCLUSION
For the above reasons, the judgment of the Superior Court is affirmed.
. Sections 8564 and 1131 use the same definition for "neglect.”
. The patient will be referred to by initials only.
. The record shows that B.W. was admitted to the DPC on either March 30 or 31, 2009.
. See 11 Del. C. § 8564 (describing the Adult Abuse Registry’s purpose and registration process).
. Hearing Officer Decision at 1. (Jan. 14, 2010).
. Id. at 4-5.
. Id. at 3.
. Tr. at 62.
. Hearing Officer Decision at 7.
. Id. at 7.
.Id. at 6-8.
. Id. at 6.
. Id. at 6.
. Id.
. Id. at 10.
. Id.
. /d. at 11.
. Id. at 12.
. Id.
. Jain v. Del. Dept. of Health & Soc. Servs., 2010 WL 4513438, at *3 (Del.Super.Ct. Oct. 29, 2010).
. Id.
. Id.
. Id.
. Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992).
. Id.
. Id.
. Tony Ashburn & Son, Inc. v. Kent County Reg’l Planning Comm’n, 962 A.2d 235, 239 (Del. 2008).
. Hearing Officer Decision at 9 (quoting Holden v. Dep. of Health & Soc. Servs., 2005 WL 3194481, at *3 (Del.Super.Ct. Oct. 12, 2005)).
. 600 A.2d 356 (Del. 1991).
. Id. at 362.
. Id.
. 11 Del. C. § 8564(a)(8); 16 Del. C. § 1131(9).
. 11 Del. C. 8564(b) (providing that the "name of any person found ... to have committed ... neglect ... shall be entered on the Adult Abuse Registry.”).
. 16 Del. C. § 1137 ("If ... a licensed or registered professional is found to have ... neglected a patient or resident ... the appropriate board shall suspend or revoke such person’s license.” (emphasis added)).
. 16 Del. C. § 1136(a).
. 2005 WL 3194481 (Del.Super.Ct. Oct. 12, 2005).
. Id. at *3.
. Id. Although not entirely clear, the Holden court appears to have based its rationale for articulating that rule on a previous case, Lynch v. Ellis, 2003 WL 22087629 (Del.Super.Ct. July 22, 2003). In Lynch, the Superi- or Court affirmed a finding of neglect where the respondent violated several of the facility’s written policies by leaving the patient alone in a bathroom with hot running water, resulting in the patient receiving burns on her feet, by failing to report that incident to medical personnel, and by administering topical over-the-treatment medicine without a doctor's order. See id. at *2-3.
. Holden, 2005 WL 3194481, at *3; see also Arege v. State, 2006 WL 2578265, at *3 n. 16 (Del.Super.Ct., Aug. 30, 2006) (summarizing Holden).
. Arege, 2006 WL 2578265, at *2.
. Sauers v. State, 2010 WL 2625549, at *3 (Del.Super.Ct., June 29, 2010) (finding that the facility had an established policy stating that a patient-resident could not be forced to accept a procedure or treatment against his or her will, and that the respondent had violated that policy).
. Jain v. Del. Dept. of Health & Soc. Servs., 2010 WL 4513438, at *3 (Del.Super.Ct. Oct. 29, 2010).
. 18 Del. C. § 6801(7).
. Compare 18 Del. C. § 6801(7) with 11 Del. C. § 8564(a)(8) and 16 Del. C. § 1131(9).
. Munyori v. Div. of Long Term Care Residents Protection, 2005 WL 2158508, at *5 (Del.Super.Ct. Aug. 25, 2005).
. See 11 Del C. § 8564(a)(8); 16 Del. C. § 1131(9).
. See Merriam-Webster’s Dictionary (online edition). See also Webster’s New College Dictionary (2d ed. 1995) (defining "attention” as "mental concentration” and "the ability or power to concentrate mentally”).
. See Black's Law Dictionary (9th ed. 2009) (defining "knowing” as [h]aving or showing awareness or understanding”). See also 11 Del. C. § 231(c)(1) (defining "knowingly” as "aware that the conduct is of that nature or that such circumstances exist").
. S.B. No. 112, 140th Gen. Assem. (1999).
. S.B. No. 112, 140th Gen. Assem. (1999) (Synopsis).
. Dambro v. Meyer, 974 A.2d 121, 137 (Del. 2009) (quoting Ramirez v. Murdick, 948 A.2d 395, 398 (Del. 2008)).
. LeVan v. Independence Mall, Inc., 940 A.2d 929, 933 (Del. 2007).
. LeVan v. Independence Mall, Inc., 940 A.2d 929, 933 (Del. 2007).
.See, e.g. 12 Del. C. § 1181; 3 Del. C. § 1042; 7 Del. C. § 6074; 11 Del. C. § 628; 13 Del. C. § 704. See also Pauley v. Reinoehl, 848 A.2d 569, 576 (Del. 2004) (explaining that the General Assembly "is presumed to have been aware of the existing law ... ”).
. 16 Del. C. § 1136. Title 16, section 1134 requires DHSS and the Attorney General to coordinate the investigation of a complaint of neglect.
. 11 Del. C. § 8564
. 18 Del. C. ch. 68
. Hearing Officer Decision at 7, 11.
. Jain v. Del. Dept. of Health & Soc. Servs., 2010 WL 4513438, at *3 (Del.Super.Ct. Oct. 29, 2010).
Reference
- Full Case Name
- DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Below v. Madhu JAIN, Below
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- 2 cases
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- Published