Ulysse v. Lumpkin

Case Date: 11/12/2002
Court: 1st District Appellate
Docket No: 1-01-2411 Rel

SECOND DIVISION
November 12, 2002



No. 1-01-2411


MARGUERITE ULYSSE,

                         Plaintiff-Appellant,

          v.

JOHN R. LUMPKIN, DIRECTOR, THE DEPARTMENT
OF PUBLIC HEALTH, and THE DEPARTMENT OF
 PUBLIC HEALTH,

                         Defendants-Appellees.

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Appeal from the
Circuit Court of
Cook County


No. 00-M1 450531
(transferred to Chancery)

Honorable
Robert V. Boharic,
Judge Presiding.



JUSTICE CAHILL delivered the opinion of the court:

Plaintiff appeals an administrative decision removing her from the state registry of qualifiedcertified nurse's aides (CNA) maintained by the Illinois Department of Public Health (theDepartment). We affirm.

The Department issued a formal notice to plaintiff on December 17, 1999, charging her withabusing a nursing home resident on November 11, 1999. Plaintiff asked for a hearing to contest theallegations. The following evidence was taken at the hearing.

Plaintiff testified that she had been a CNA for eight years and had worked at Ballard HealthCare Center for four. CNAs are responsible for feeding, changing and moving the residents to andfrom their beds. Gertrude Streeter was plaintiff's supervisor. Plaintiff had complained to Ballardmanagement about Streeter's unfairness in assigning extra work. Plaintiff claimed she was assignedwork other CNAs refused to do.

Plaintiff worked the 6:30 a.m. to 2:30 p.m. shift. She had been caring for an Alzheimer'spatient for three to four months. Plaintiff said that the patient was confused and could not rememberwhat happened from one minute to the next. On November 11, plaintiff was trying to move thepatient from a wheelchair into her bed. The patient began fighting and sliding down the chair. Plaintiff called to Streeter for help four or five times before she came. Streeter did not respondimmediately because she was on the phone. Plaintiff tried to tie the patient down as instructed byStreeter. Plaintiff was kicked several times as she tried to restrain the patient. Plaintiff deniedslapping the patient and claimed that she only held the patient's wrists while telling her to stopfighting. Plaintiff did not intentionally hit the patient. Plaintiff believed that Streeter reportedotherwise because she and Streeter were mad at each other.

Plaintiff was interviewed by Sam Ogunro and Sue Mikals on November 11. Ogunro is anursing supervisor. Mikals is the vice-president of clinical operations for Ballard. Plaintiff toldOgunro and Mikals that she tried to grab the patient's hand but did not slap her, either on the faceor the hand. Plaintiff told the patient she was being "bad" and to stop fighting. Mikals told plaintiffthat she would be terminated because she had abused the patient twice-grabbing the patient's handand telling the patient that she was bad. Mikals told plaintiff she could prepare a letter in responseand deliver it to Mikals the next day. Plaintiff testified that she prepared a one-page letter and gaveit to Mikals as instructed. Plaintiff offered a copy of the letter into evidence. The Department'sobjection to the letter's admission was sustained.

Gertrude Streeter testified that she worked at Ballard as a licensed practical nurse. Streeterwas in charge of providing medical care to the residents, some of whom suffered from Alzheimer's. Streeter also supervised the CNAs, including plaintiff.

Streeter said that, on November 11, 1999, she and plaintiff were working the same shift. Atabout 2 p.m. Streeter and plaintiff moved an Alzheimer's patient from a wheelchair to her bed. Boththen left the room. Streeter and plaintiff returned to the room and noticed that the patient was tryingto climb out of bed. Streeter and plaintiff helped the patient to sit up. The patient was agitated andflailed her arms and legs. Plaintiff tried to restrain the patient's left wrist with a wall restraint whenthe patient kicked her in the face. Plaintiff then slapped the patient in the face. Plaintiff slapped thepatient again minutes later. Streeter told plaintiff that she was not supposed to hit the patient. Plaintiff said that if she was hit, she would hit back. Streeter examined the patient and noticed a redmark on her face. Streeter reported plaintiff's conduct to Sam Onguro, the afternoon nursingsupervisor.

Streeter denied that plaintiff called several times for help in moving the patient beforeStreeter came to the room. Streeter did not remember being on the phone. Streeter said that ifplaintiff called for help Streeter responded right away. Streeter denied that the slapping wasaccidental.

Streeter testified that she and plaintiff were friends and there was no tension between them. There were no complaints about plaintiff hitting other patients. Streeter did not recall whetherplaintiff filed complaints against Streeter based on workload assignments. Streeter said she dividedthe work evenly between the CNAs.

Sam Ogunro testified that he is a registered nurse and nursing supervisor for Ballard. Ogunrosaid that Alzheimer's patients were sometimes combative and hit CNAs caring for them.

Ogunro learned of the November 11 incident at 2:30 p.m., about one-half hour after he cameon duty. Streeter explained to him that she and plaintiff were helping an agitated patient into bedwhen plaintiff was kicked and that plaintiff slapped the patient twice. Ogunro told Streeter that hewas required to report the incident to his supervisor, Sue Mikals. Ogunro prepared a report forMikals. The signed report detailed what Streeter had told Ogunro.

Ogunro met with Mikals. Ogunro was present when Mikals called Streeter in to relate whathappened. Ogunro was also present when plaintiff was interviewed. Plaintiff denied slapping thepatient in the face. Plaintiff said that after being kicked, she tapped the patient twice in the thigh andtold the patient "don't do that, bad lady, bad lady." Ogunro said that plaintiff demonstrated what shehad done by tapping Ogunro on the thigh. The pressure used was strong enough to cause injury.

Plaintiff was told that her conduct amounted to verbal and physical abuse and that she wouldbe terminated. Plaintiff responded that she had been provoked.

Ogunro testified he had a good working relationship with plaintiff but that they often workeddifferent shifts. Ogunro also supervised Streeter when she worked evening shifts. Ogunro admittedthat morning shift employees had complained to him about Streeter's unfairness in assigning work. Ogunro could not remember if plaintiff was one of those who complained.

The Department file was then offered into evidence. The file included a copy of the noticecharging plaintiff with abuse, plaintiff's request for a hearing, a Department abuse report, a one-pagereport prepared by Streeter, a one-page report prepared by Ogunro, Ballard's policies and procedures,and a three-page report prepared by Mikals. Plaintiff objected to admission of the Mikals reportwhen it was disclosed that Mikals would not be testifying. The objection was overruled.

The administrative law judge found that plaintiff committed physical abuse of a nursinghome patient. The judge found plaintiff's testimony was self-serving and not credible. The findingof abuse was adopted by the Department. The trial court entered an order affirming the Departmentorder on May 22, 2001.

Plaintiff argues on appeal that three adverse evidentiary rulings violated her right to a fairhearing. Plaintiff cites no case law to support her argument. We are persuaded by none of herclaims of error.

Plaintiff first contends that the Mikals report was hearsay that should not have been admittedinto evidence. We disagree.

Hearsay is not admissible in an administrative hearing as a general rule. Abrahamson v.Illinois Department of Professional Regulation, 153 Ill. 2d 76, 94, 606 N.E.2d 1111 (1992). But theDepartment's regulations permit admission of "records and reports of health care facilities, doctors,nurses, physical therapists or other health care providers" without foundation or proof so long as thereport or record does not include "affidavits or other documents specifically prepared for litigation." 77 Ill. Adm. Code