Nurse’s Aide Disciplined Based On Deceased Patient’s Affidavit

JULY 8, 2002 VOLUME 10, NUMBER 1

Identifying and protecting against abuse of nursing home residents is a difficult and continuing problem for authorities. The frailty and dependence of residents, coupled with high turnover and, too often, poor training and supervision, make it a challenge to prove cases of abuse or neglect. A recent incident in New York illustrates some of the common problems of proof in such cases.

Cindy M. King was a certified nurse’s aide working in a skilled nursing facility in Clinton County, New York. She was charged with forcibly grabbing an elderly resident’s arm and pulling her out of her bed. After a hearing before the State Department of Health she was found to have engaged in behavior constituting patient abuse and patient neglect.

Ms. King appealed the determination. Among other things, she argued that the hearing officer should not have accepted hearsay evidence. The appellate court rejected that assertion and upheld her discipline.

By the time of the hearing the patient Ms. King was accused of abusing had died. While the patient’s death was not a result of Ms. King’s treatment, it nonetheless points up a common problem in investigating and prosecuting cases of abuse in nursing homes: because the residents tend to be both elderly and frail, they often die before the legal proceedings can be resolved. In other cases residents may be dependent on caretakers and anxious about accusing anyone of misbehavior, or their mental abilities may be so diminished that their testimony is unreliable.

In Ms. King’s case, the resident had signed an affidavit about the incident. Other staff members testified about her descriptions of the events at the time. Both kinds of testimony were introduced.

Ms. King argued that the resident’s statements should not be admitted or considered because she did not have any opportunity to cross-examine the resident, and the resident’s mental status made her testimony inherently unreliable. The appellate court upheld the hearing officer’s consideration of the resident’s statements, pointing out that other staff members described her as alert and coherent. In any event, the court noted, the resident’s version of the events was corroborated by other sources—including Ms. King herself, whose version of the incident differed from the resident’s in only one key respect.

According to Ms. King, she had assisted the resident to get out of bed by supporting her back; according to the resident and other witnesses, she had grabbed the patient’s arm and pulled her out of bed. There was some evidence that Ms. King had admitted that the resident’s version was more accurate. With substantial evidence to support the Department of Health’s determination, Ms. King’s objections were denied and her appeal dismissed. King v. New York State Department of Health, June 13, 2002.

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