Opinion
No. 348446
08-13-2020
In re DIANE KAY FORD, R.N. BUREAU OF PROFESSIONAL LICENSING, Petitioner-Appellee, v. DIANE KAY FORD, R.N., Respondent-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED LARA Bureau of Professional Licensing
LC No. 18-005826 Before: MURRAY, C.J., and CAVANAGH and SWARTZLE, JJ. PER CURIAM.
Respondent, Diane Kay Ford, R.N., appeals by right the March 26, 2019 order of the Board of Nursing Disciplinary Subcommittee placing respondent on probation for one to two years and fining respondent $250 for violating MCL 333.16221(a) (negligence or failure to exercise due care), (b)(i) (incompetence), and (b)(vi) (lack of good moral character). We affirm.
The Board of Nursing Disciplinary Subcommittee is an entity within the Department of Licensing and Regulatory Affairs, Bureau of Professional Licensing.
I. FACTUAL BACKGROUND
On July 4, 2016, a nurse discovered that the dressings of a patient in a long-term care facility had not been changed since July 1, 2016, despite that a physician had ordered the patient's dressings to be changed daily and the dressings had been marked as changed in the patient's electronic medical records. The nurse spoke with his supervisor. He testified that he also confronted respondent, who admitted that she had not changed the dressing. Respondent's direct employer testified that she spoke with respondent about the matter, and respondent stated that she believed she had not changed the dressing. Respondent testified that she did not remember having a conversation with the nurse and that she told her supervisor that she was not sure whether she had changed the patient's dressings or not. Respondent also testified that she frequently had trouble logging out of the electronic medical record (EMR) system and that someone may have made the entries under her name. However, the director of nursing at the facility testified that there had been no issues with the EMR system. Respondent was ultimately fired by her employer, who reported her change of employment to the Board of Nursing. Respondent requested a hearing.
The administrative law judge concluded that petitioner had proved by a preponderance of the evidence that respondent had violated MCL 333.16221(a), (b)(i), and (b)(vi) by failing to change the patient's dressing and falsely documenting in the patient's medical record that she had done so. The judge found that respondent's testimony was less credible than the testimony of the nurse who discovered that the dressings had not been changed, and that there was no evidence that the EMR system was compromised or not functioning correctly. The Board of Nursing Disciplinary Subcommittee adopted the judge's recommendations and ordered respondent disciplined.
II. SUFFICIENCY OF THE EVIDENCE
Respondent argues that competent, material, and substantial evidence did not support the tribunal's decision because it was based on inadmissible evidence and because the tribunal improperly determined that the other nurse was more credible than respondent. We reject each of respondent's contentions and conclude that a reasonable mind would have found the evidence sufficient to support the tribunal's findings.
When reviewing an agency's decision, a court's review is limited to determining whether the agency's action was authorized by law, and whether the agency's findings of fact "are supported by competent, material, and substantial evidence on the whole record." Const 1963, art 6, § 28; Boyd v Civil Serv Comm, 220 Mich App 226, 232; 559 NW2d 342 (1996). Substantial evidence is "evidence that a reasoning mind would accept as sufficient to support a conclusion." Dignan v Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002). This Court reviews a tribunal's evidentiary rulings for an abuse of discretion. Nat'l Wildlife Federation v Dep't of Environmental Quality (No 2), 306 Mich App 369, 373; 856 NW2d 394 (2014). An abuse of discretion exists when a decision falls outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
First, respondent argues that the patient's EMR was not admissible because the exhibit was not self-authenticating. To be admissible, there must be "evidence sufficient to support a finding that the matter in question is what its proponent claims." MRE 901(a). Authentication conforming with the requirements of the rule includes testimony by a witness "that a matter is what it is claimed to be." MRE 901(b)(1). In contrast, MRE 902 provides a list of documents that are self-authenticating, meaning that extrinsic evidence of their authenticity is not required. See MRE 902(1) to (11).
Respondent is correct that medical records are not self-authenticating, but in this case, the director of nursing testified that petitioner's Exhibit 2 consisted of medical records that she had compiled from medication and treatment records. Accordingly, Exhibit 2 was authenticated by the director's testimony that the medical records were in fact the patient's medical records.
Second, respondent argues that petitioner did not sufficiently prove respondent made the chart entry that stated the patient's dressing was changed because the director of nursing did not actually witness any of the events, and petitioner did not prove that nurses actually followed the schedule. These arguments lack merit because the director's testimony provided circumstantial evidence that respondent made the chart entry, the chart itself was circumstantial evidence of respondent's schedule, and petitioner was not required to provide direct evidence.
Circumstantial evidence is evidence that facilitates reasonable inferences of fact. Skinner v Square D Co, 445 Mich 153, 164; 516 NW2d 475 (1994). "Circumstantial evidence in support of or against a proposition is equally competent with direct." Zolton v Rotter, 321 Mich 1, 8; 32 NW2d 30 (1948) (quotation marks and citation omitted). The finder of fact determines the credibility and weight of the evidence. In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 101; 754 NW2d 259 (2008).
The chart itself indicates that respondent created the chart entries which stated that the patient's wound care had been performed. The director testified about the mechanisms of the EMR system, including that a provider had to enter a username and password in order to make entries, which were then linked to the provider's account. Even if no one saw respondent make the entries, the judge could reasonably infer from the testimony and documentary evidence that respondent was the person who made the chart entries. Similarly, the chart itself was circumstantial evidence of respondent's schedule. Petitioner was not required to provide an eyewitness who saw respondent make false chart entries.
Third, respondent argues that the patient's EMR was hearsay. This argument lacks merit because the medical records were records of regularly conducted activity, and therefore they were subject to exclusion under the hearsay rules.
Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). Hearsay is generally inadmissible, unless it is subject to a hearsay exception. MRE 802; People v Duncan, 494 Mich 713, 724; 835 NW2d 399 (2013). Records of regularly conducted activity are not excluded by the hearsay rule. MRE 803(6). In this case, the EMR was part of the long-term-care facility's medical records system and was created by that system. As records of the facility's regularly conducted activities, the EMR was not inadmissible hearsay.
Fourth, respondent argues that because the EMR system did not require biometrics and she testified that sometimes the system did not log her out, petitioner did not sufficiently prove that respondent was the person who made the chart entries. We disagree and again conclude that sufficient circumstantial evidence supported the tribunal's findings.
Petitioner admitted the system's documentation, which indicated that a person had to provide a username and password to log in. The director of nursing testified that each employee was assigned an individual log-in and password, and that the employee indicated a patient's care was complete by using a two-step process that ultimately entered the employee's initials and signature. Further, respondent herself testified that she did not know whether she had signed the patient's chart and that she could have signed it. While respondent testified that someone else could have made the entries under her name, respondent also testified that she was not aware of other instances of employees using her name and password. More importantly, the tribunal found that respondent's account was not credible. There was enough evidence that a reasoning mind would have accepted it as sufficient to support the conclusion that respondent was actually the person logged into the EMR system when the chart entries were made.
Fifth, respondent argues that her employer's testimony was hearsay and conclusory. Again, we reject respondent's arguments.
A party may not appeal an error that the party created. Clohset v No Name Corp (On Remand), 302 Mich App 550, 555; 840 NW2d 375 (2013). While respondent argues that the employer improperly testified that the director of nursing told her that the patient's dressing had not been changed, respondent created any error. In this case, during cross-examination, respondent asked her employer what the director had said:
Q. Do you recall what you and [the director] said to each other orally?While this question was asked again later and the employer gave a more detailed answer, respondent created any error in the first place by asking the employer what the director had said. Even had respondent not created this error, it would be harmless because the director testified about what she told the employer, and petitioner submitted documentary evidence of the director's complaints. See People v Hill, 257 Mich App 126, 140; 667 NW2d 78 (2003) (holding that the erroneous admission of hearsay evidence is harmless error when it is cumulative to other, proper testimony).
A. I do believe that the discussion revolved around the accusations. And I asked her what information she had. And she disclosed that to me.
Sixth, respondent asserts that her employer's testimony was entirely hearsay. Respondent is incorrect. Her employer testified about the conversation she had with respondent, which was not hearsay.
An admission by a party opponent is not hearsay. MRE 801(d)(2). An admission by a party opponent includes "a statement of which the party has manifested an adoption or belief in its truth." MRE 801(d)(2)(B). The fact that the proponent denies making the statement does not render it inadmissible. Bradbury v Ford Motor Co, 123 Mich App 179, 188; 333 NW2d 214 (1983), mod 419 Mich 550 (1984).
In this case, the employer testified that she spoke with respondent about the incident, and respondent stated that she did not believe she changed the dressing because she was busy and there was a lot going on at that time. Respondent testified that she did not tell her employer that she had not changed the dressing. Respondent instead stated that she told the employer that she did not know if she changed the patient's dressing. The employer's testimony was not inadmissible simply on the basis that respondent disputed it. The employer's testimony about what respondent told her was admissible as an admission by a party opponent.
Seventh, respondent argues that the employer impermissibly testified about her conclusions. Respondent asserts that lay witnesses are only permitted to testify about things they have heard or seen. Respondent is wrong. Opinion testimony by a lay witness is permissible if the testimony is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." MRE 701. Accordingly, even though the employer was a lay witness, she was permitted to offer opinions as long as those opinions were rationally based on her perceptions. The rules of evidence did not require her to provide only observation testimony.
Eighth, respondent argues that the tribunal improperly relied on the other nurse's testimony because he was not a credible witness and was not present on July 2, 2016. In this case, the other nurse testified that he was assigned to change the patient's dressings on July 4, 2016, and that they had not been changed since July 1, 2016. The nurse consulted the patient's medical records, which indicated that respondent had changed the dressing when it had not been changed. The nurse testified that respondent admitted she had not changed the dressing. Again, the nurse's testimony provided circumstantial evidence that respondent made the chart entry. It was not required for him to be present as an eyewitness.
Respondent bases her credibility challenge to the other nurse on her assertion that he should have retained the stale dressing rather than destroyed it. Respondent urges this Court to take judicial notice of dressing preservation techniques that the nurse could have used. Judicial notice allows a court to take notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." MRE 201(b). The things respondent urges this Court to take notice of are not things that can be readily and accurately determined, and we decline to take judicial notice of them. Regardless, again, it was for the tribunal to evaluate the nurse's testimony, not this Court. We decline to overturn the tribunal's credibility determination.
On the whole, the record provided competent, material, and substantial evidence to support petitioner's claims. The other nurse testified the dressing was not changed. The director testified that the patient's EMR indicated that respondent had changed the dressing, and that in order for the entry to be made, respondent must have been logged in with a user name and password. The director testified that it was contrary to nursing standards of practice to document care that a nurse had not actually completed and to fail to follow physicians' orders. The director also testified that falsifying a medical record was not an act of good moral character. On the basis of the evidence before the tribunal, a reasonable person would accept the testimony and documentary evidence as sufficient to support finding that respondent neglected a resident, falsified medical records, and acted in a way that showed a lack of good moral character. Accordingly, there was competent, material, and substantial evidence to support the tribunal's determinations.
III. DUE PROCESS
Respondent asserts that the administrative law judge deprived her of due process by interfering with her cross-examination of the director of nursing and by failing to provide an impartial tribunal. We reject these arguments.
When reviewing an agency's decision, a court's review is limited to determining whether the agency's action was authorized by law, and whether the agency's findings of fact "are supported by competent, material, and substantial evidence on the whole record." Const 1963, art 6, § 28; Boyd, 220 Mich App at 232. An agency's decision is not authorized by law if it violates a statute or constitution, exceeds the statutory authority or jurisdiction of the agency, is made after unlawful procedures that result in material prejudice, or is arbitrary and capricious. Northwestern Nat'l Cas Co v Comm'r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998) (citation omitted). This Court reviews de novo issues of due process. Elba Twp v Gratiot Co Drain Comm'r, 493 Mich 265, 277; 831 NW2d 204 (2013).
The Michigan and United States Constitutions provide in part that no person shall be deprived of property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17. Once a license is granted, it becomes a protected property interest. Bio Tech, Inc v Dep't of Natural Resources, 235 Mich App 77, 81; 596 NW2d 633 (1999). "The Due Process Clause requires an unbiased and impartial decisionmaker." Cain v Mich Dep't of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996).
An administrative agency may designate a hearing officer to hear a contested case as the presiding officer. MCL 24.279. The hearing must be conducted in an impartial manner. MCL 24.279. The presiding officer may, among other things, "[r]egulate the course of the hearings . . . ." MCL 24.280(1)(d). An administrative law judge may "[e]xamine the witnesses as deemed necessary by the administrative law judge to complete a record or address a statutory element." Mich Admin Code, R 792.10106(1)(l).
First, respondent argues that the judge violated her due-process rights by interfering with her cross-examination of a witness. We disagree. The judge properly ruled that respondent's line of questioning was not relevant, and respondent was not entitled to cross-examine a witness about an irrelevant issue.
"The right of cross-examination is not without limit," and it "does not include a right to cross-examine on irrelevant issues and may bow to accommodate other legitimate interests of the trial process or of society." People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). Relevant evidence is evidence that has any tendency to make a fact of consequence more or less likely to be true. MRE 401. A fact of consequence is a fact that "is within the range of the litigated controversy[.]" Morales v State Farm Mut Auto Ins Co, 279 Mich App 720, 731; 761 NW2d 454 (2008). In contrast, a fact is not material if it does not help to prove a proposition that is at issue. Id. (citation omitted).
In this case, respondent attempted to question the director about the makes and models of the computer system on which the EMR software ran. Petitioner objected to this questioning as irrelevant because the director had previously testified that she had no computer expertise. The judge briefly questioned the witness about the computers on which the software ran, and allowed respondent to ask some questions, but ultimately ruled that the manufacturer of the computers was not relevant, and that if respondent had evidence concerning the reliability of the computer system, "that would come in during your case." We conclude that the judge's ruling that the matter was irrelevant fell within the range of reasonable outcomes because the director's testimony about the makes and models of the computers would not have helped to prove a proposition that was at issue when the director testified that the software company provided the computers and the security.
Second, respondent argues that the judge deprived her of an impartial tribunal and committed misconduct by suggesting that the manufacturer of the computer hard drive into which the EMR system was installed was Dell. We also reject this argument.
"The Due Process Clause requires an unbiased and impartial decisionmaker." Cain, 451 Mich at 497. A judge pierces the veil of judicial impartiality and deprives a party of a fair trial "when, considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party." People v Stevens, 498 Mich 162, 171; 869 NW2d 233 (2015). Judicial misconduct may include inappropriate questioning of a witness, such as a heated cross-examination of a witness. Id. at 172-173. But generally, a judge may intervene to prevent unnecessary waste of time and clear up obscurities. Id. at 174 (citation omitted). An administrative law judge may "[e]xamine witnesses as deemed necessary by the administrative law judge to complete a record or address a statutory element." Mich Admin Code, R 792.10106(1)(l).
In this case, during respondent's attempt to question the nursing director about the manufacturer of the computers, the following exchange took place:
THE JUDGE. Okay. So do you have—do you have Dell computers?When considered in context, the judge's conduct did not create the appearance of bias against respondent or advocacy for petitioner, and the judge's questioning was not heated. The judge was permitted to examine the witness, and he did not do so in an inappropriate manner. We reject respondent's argument of judicial misconduct.
THE WITNESS. We do. And we have an IT department. And all of our computers are identified with numbers on them, so we know—
THE JUDGE. So who makes them? Dell, Hewlett Packard, some other—
THE WITNESS. Most of them are Dell computers, yes.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle