Opinion
No. 996 C.D. 2012
11-29-2012
Leanne Vitteck, LPN, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Nursing, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Leanne Vitteck (Vitteck) appeals from the final adjudication and order of the Pennsylvania Bureau of Professional and Occupational Affairs (Commonwealth), State Board of Nursing (Board), which permanently revoked Vitteck's practical nurse license.
Order to Show Cause
From January 2007 to February 10, 2008, Vitteck was employed as a licensed practical nurse (LPN), at Humbert Lane Nursing and Rehabilitation Center and Personal Care Home (Humbert Lane). Vitteck's employment was terminated following an incident where she, allegedly, forcibly removed a sensor monitor from the hand of I.T., an 89 year old resident who suffered from dementia. Vitteck also, allegedly, directed profanities at I.T. After Vitteck's employment was terminated she applied for and was granted unemployment compensation benefits.
Subsequently, Vitteck became employed as an LPN at Washington County Health Center (WCHC) in September, 2008. Vitteck was terminated from employment on December 23, 2008, after she allegedly threatened to "break the hands" of E.B., a 97 year old resident who suffered from dementia. She also, allegedly, threatened another wheelchair-bound resident, M.E., with physical violence.
Officials at Humbert Lane and WCHC filed "Statements of Complaint" against Vitteck with the Department of State, Professional Compliance Office. On September 14, 2009, the Commonwealth filed a ten-count "Order to Show Cause" which charged Vitteck with engaging in gross immorality; being unfit or incompetent by reason of habits, negligence, or other causes; unprofessional conduct; failing to respect and consider patients' rights to freedom from psychological and physical abuse; and failing to safeguard patients from the incompetent, abusive or illegal practice in violation of Sections 16(a)(1), (2), (3) and (8) of the Practical Nurse Law and Sections 21.148(a)(2) and (3) of the Board's regulations, 49 Pa.Code §21.148(a)(2) and (3), which set forth the standards of nursing care.
Act of March 2, 1956, P.L. 1211, as amended, 63 P.S. §666(a) provides:
The board may refuse, suspend or revoke any license in any case where the board shall find that the licensee:
(1) Is guilty of gross immorality;
(2) Is unfit or incompetent by reason of negligence, habits or other causes;
(3) Has willfully or repeatedly violated any of the provisions of this act or of the regulations of the board;
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(8) Has been guilty of unprofessional conduct or such conduct as to require a suspension or revocation in the public interest.
The regulations at 49 Pa.Code §21.148(a)(2) and (3), provide:
(a) A licensed practical nurse shall:
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(2) Respect and consider, while providing nursing care, the individual's right to freedom from psychological and physical abuse.
(3) Act to safeguard the patient from incompetent, abusive or illegal practice of any individual.
Vitteck filed an Answer which admitted, in part, the allegations contained in the Order to Show Cause and asserted mitigating factors.
The Administrative Hearing
On March 10, 2010, a formal administrative hearing was held before the Board which consisted of two LPN members and an attorney. The Commonwealth presented eyewitness-testimony from four of Vitteck's coworkers.
Christy Molinaro, (Nurse Molinaro) was an LPN who worked at Humbert Lane with Vitteck. Nurse Molinaro testified that when she arrived at work on February 3, 2008, between 7:00 a.m. and 7:15 a.m., she was informed by a staff member that I.T., an 89 year old resident who suffered from dementia, was "up all night, climbing in and out of bed, agitated and combative." Hearing Transcript, March 10, 2010, (H.T.) at 46; Reproduced Record (R.R.) at 63.
Nurse Molinaro sat next to I.T. and tried to calm her. I.T. had removed the part of the sensor monitor that was attached to her clothes and held it in her hand. Nurse Molinaro eventually persuaded I.T. to give her one part of the sensor.
According to Nurse Molinaro, I.T. "was calming down but in the meantime telling [Nurse Molinaro] that she was going to bite [Nurse Molinaro] ... if [Nurse Molinaro] touched her." H.T. at 47; R.R. at 64. At that point, Vitteck "came up from behind [Nurse Molinaro], ripped the other part of the sensor out of [I.T.'s] hand, slammed it down and said 'I'm tired of dealing with you tonight' and walked back down the hall." H.T. at 47; R.R. at 64. When I.T. yelled something, Vitteck "turned around and said, 'shut up, I'm tired of being a fucking babysitter.'" H.T. at 47; R.R. at 64.
Tammy Hixenbaugh (Nurse Hixenbaugh), an LPN, also witnessed the incident. Nurse Hixenbaugh testified that she saw Vitteck "rip the sensor out of the resident's [I.T.] hand" and say to I.T. "that she was tired of playing her games and that she wasn't her babysitter." H.T. at 77; R.R. at 94. Nurse Hixenbaugh described being "taken aback" and was "awestruck by [Vitteck] ripping the sensor monitor out of [I.T.'s] hand." H.T. at 78; R.R. at 95. On cross-examination, Nurse Hixenbaugh recalled that Vitteck either used the word "fuck" or "damn." H.T. at 83; R.R. at 100. Nurse Hixenbaugh reported the incident to her supervisor.
Patti Whitmer (Supervisor Whitmer), a nursing supervisor, also witnessed the incident. Supervisor Whitmer observed that I.T. was very agitated. She recalled Vitteck speaking to I.T. "in a very abrupt manner, telling the patient to shut up." She also heard Vitteck say to I.T. "I am tired of being a blank babysitter." H.T. at 94; R.R. at 111. Supervisor Whitmer used the word "blank" in place of an "expletive." Supervisor Whitmer was "quite disturbed" by the incident. H.T. at 95; R.R. at 112.
Lisa Keil (Nurse Keil), was a certified nursing assistant who witnessed Vitteck's verbal abuse of E.B., an elderly, wheel-chair bound dementia patient at WCHC. Nurse Keil testified that on December 14, 2008, Vitteck was trying to get E.B. to take her medication. E.B. was "swinging her arms and thrashing her head and yelling and carrying on." H.T. at 119; R.R. at 136. E.B. knocked the medicine out of Vitteck's hand and slapped Vitteck in the face. Vitteck then stated to E.B. "if she ever slapped her in the face again, she'd break her hands.'" H.T. at 120; R.R. at 137. Later, when E.B. saw Vitteck, she turned her head and Vitteck "chuckled." H.T. at 121; R.R. at 138.
Nurse Keil also witnessed Vitteck verbally abuse an elderly wheelchair-bound resident, M.E., on December 20, 2008. On that date, Vitteck was at the nurses' station and M.E. "flung her arms up over the counter and was holding on to the counter, and [Vitteck] looked up at her like fast and said her name, 'if you ever throw anything at me, you'll never throw anything at anyone ever again.'" H.T. at 122; R.R. at 139.
Vitteck testified on her own behalf. Vitteck denied that she forcibly took the sensor from I.T. or that she made a comment to I.T. Vitteck "could not think of a reason why [Nurse Molinaro and Nurse Hixenbaugh] would say that." H.T. at 150; R.R. at 167. Vitteck also denied telling E.B. that she would "break her hands" if she slapped her again. H.T. at 173; R.R. at 190. She testified "I never said that. I would never say that to a resident, never." H.T. at 174; R.R. at 191. Vitteck testified that she never threatened M.E. that if she ever threw anything at her she would never throw anything at anyone again. Vitteck testified "I don't even know what that's about. I don't recall that at all, at all." H.T. at 174; R.R. at 191.
Board's Findings of Fact
The Board believed the Commonwealth's witnesses to be more credible than Vitteck. The Board made the following relevant findings of fact with respect to what occurred:
Humbert Lane
8. On February 2-3, 2008, Respondent [Vitteck] worked the 11:00 p.m. - 7:00 a.m. shift.
9. I.T., an 89 year old resident who suffered from dementia, was a patient within Respondent's [Vitteck's] care during that shift.
10. I.T. was agitated and difficult to redirect.
11. Due to her physical instability, in order to assure that I.T. would not fall when she attempted to rise, a sensor monitor was employed.
12. One end of the monitor was attached to her bed/wheelchair and the other end was attached to I.T.'s clothing/blanket.
13. While making rounds during the middle of the night, Respondent [Vitteck] responded to an alarm that went off in I.T.'s room.
14. I.T. attempted to get out of bed.
15. Respondent [Vitteck] helped Bernadette Holmes, a certified nursing assistant, put I.T. back in bed but believing that I.T. did not want to return to bed directed Ms. Holmes to get I.T. washed and dressed and taken to the nurses' station.
16. I.T. decided instead to return to bed and her sensor was reattached.
17. Five minutes later I.T.'s alarm sounded again and Respondent [Vitteck] directed that she be taken to the nurses' station.
18. Within 30-45 minutes of being taken to the nurses' station, I.T. removed her clothes three or four times, each time I.T. was redressed and the sensor reattached.
19. After removing her clothes again, Respondent [Vitteck] directed Ms. Holmes to cover I.T. with a blanket or sheet and reattach the sensor.
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23. At approximately 7:00 a.m. during the shift change, I.T.'s sensor sounded again.
24. I.T. removed the sensor attached to her blanket, balled it in her hand and threatened to bite Christy Molinaro, the dayshift practical nurse, or anyone who touched her.
25. Respondent [Vitteck] came up behind Ms. Molinaro, forcefully took the sensor from I.T.'s hand and slammed it down in Ms. Molinaro's hand.
26. Respondent [Vitteck] told I.T. "I'm tired of dealing with you tonight" and walked out of the room.
27. In response to I.T. who was yelling at Respondent [Vitteck], Respondent replied, "[s]hut up, I am tired of being a fucking babysitter."
28. Respondent [Vitteck] was suspended and following an internal investigation into her treatment of I.T. was terminated on February 10, 2008.
29. Respondent [Vitteck] prepared two statements for Humbert in connection with her treatment of I.T.; a February 4, 2008, statement as part of Humbert's
investigation and a February 25, 2008 employment Separation Questionnaire.
30. In neither statement did Respondent [Vitteck] mention anything about taking the sensor from I.T. and her subsequent dialog with her.
31. Following her termination and the denial of unemployment compensation, Respondent [Vitteck] filed a successful appeal with the Unemployment Compensation Board of Review (UCBR).
WCHC
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33. Respondent [Vitteck] was employed at WCHC as a licensed practical nurse from September 2008 through December 23, 2008, charged with passing medication and providing patient care.
34. On December 14, 2008, Respondent [Vitteck] worked the 3:00 p.m.-11:00 p.m. shift.
35. E.B., a 97 year old resident who suffered from dementia and cried a lot, was a patient within Respondent's [Vitteck's] care during that shift.
36. E.B. was combative with Respondent [Vitteck].
37. When Respondent [Vitteck] attempted to give E.B. medication, which was crushed into pudding, E.B. yelled at Respondent [Vitteck] and waived her arms.
38. E.B. knocked the medication laden pudding out of Respondent's [Vitteck's] hands.
39. When Respondent [Vitteck] bent down to clean up the pudding E.B. slapped Respondent [Vitteck] in the face.
40. Respondent [Vitteck] placed her finger in E.B.'s face and told E.B. if she ever slapped her again she would break her hands.
41. Respondent [Vitteck] chuckled when E.B turned her head to avoid Respondent [Vitteck] when Respondent [Vitteck] later passed E.B. in the living room.Final Adjudication and Order, April 23, 2012, Findings of Fact (F.O.F.) 8-19, 23-31, 33-45 at 5-9.
42. On December 20, 2008, Respondent [Vitteck] was documenting in-patient charts at the nurses' station.
43. M.E., a resident in a wheelchair, was standing up and sitting down with the aid of the counter at the nurses' station flinging her arms over the nurses' station.
44. Respondent [Vitteck] told M.E., "If you ever throw anything at me you will never throw anything at anyone ever again."
45. Respondent [Vitteck] was suspended and subsequently terminated from WCHC on December 23, 2008.
The Board found that Vitteck was (1) "unfit" and "incompetent" to practice by reason of "habits, negligence and other causes;" and (2) that she engaged in "unprofessional conduct" by "failing to respect and consider patients' rights to freedom of psychological and physical abuse" and to "safeguard her patients from abusive practice." The Board concluded that rehabilitative efforts, such as re-training or suspension, would be futile and that Vitteck's profanity and verbal threats to her patients warranted the revocation of her nursing license.
The Board found that Vitteck was not guilty of "gross immorality" under Section 16(a)(1) of the Practical Nurse Law, 63 P.S. §666(a)(1).
On appeal, Vitteck contends that the Board's determination that she violated the Practical Nurse Law and regulations was not supported by substantial evidence.
This Court's scope of review of board decisions is limited to determining whether the board committed constitutional violations, errors of law, or whether any necessary findings of fact are unsupported by substantial evidence. 2 Pa.C.S. §704.
I.
Unfit and Incompetent by Reason of Habits
Negligence and Other Causes - 63 P .S. §666(a)(1)
First, Vitteck asserts that substantial evidence does not support the Board's finding that she was incompetent because there was no evidence that she failed to provide proper medical care, to follow medical protocols or that she was negligent in caring for patients. Contrary to Vitteck's interpretation, the standard is not limited to a lack of technical skill, such as the failure to provide proper medical care or follow medical protocols. By definition, a nurse may be unfit or incompetent because of her "negligence, habits or other causes."
As the Board noted, "incompetent" and "unfit" are not defined in the Practical Nurse Law or regulations. Looking to the plain language of the statute and employing accepted and legal definitions of the words "habit," negligence," "incompetency" and "unfit," the Board concluded that Vitteck's conduct, which involved three patients at two different facilities, similar statements and threats, combined with her lack of recollection of the events, rendered her incompetent and unfit to practice nursing.
This Court in Rinaldi v. Board of Vehicle Manufacturers, Dealers, and Salespersons, 843 A.2d 418 (Pa. Cmwlth. 2004), reiterated that due deference and great weight must be given to the Board's application of its statute such that its interpretation may not be overturned without "cogent reasons" and a determination that the Board's decision was clearly erroneous. Rinaldi, 843 A.2d at 420.
This Court will not say that the Board's interpretation, here, was clearly erroneous. There was evidence of multiple incidents where Vitteck, in an attempt to control her patients, resorted to threats of violence, profanity and force. Even after Vitteck was admonished and terminated from her position at Humbert Lane, she continued to resort to this same threatening and abusive behavior at WCHC. This Court wholly agrees with the Board that these incidents constituted an unacceptable pattern of behavior and/or "habit." As the Board notes, the hallmark of nursing is the compassion and care provided by nurses to their patients. A practical nurse that habitually resorts to intimidation, force, and threats of physical violence while caring for elderly dementia patients is unfit and incompetent to practice.
Vitteck also contends that the record, at most, established isolated instances of "uncourteous conduct" and that her "poor professional manners" did not constitute professional incompetence. Vitteck relies on several cases which examined questionable conduct exhibited by professional licensees and whether the conduct amounted to professional incompetence.
In Nelson v. State Board of Veterinary Medicine, 863 A.2d 129 (Pa. Cmwlth. 2004), a veterinarian who told an owner of an ill dog that "her soul would rot in hell" and described the owner as a "whacko" to a Bureau investigator, did not engage in professional incompetence.
In Ciavarelli v. State Board of Funeral Directors, 565 A.2d 520 (Pa. Cmwlth. 1989), a funeral director's accusation that a priest recommended another funeral home and use of profanity towards another funeral director did not support a showing of professional incompetence. It may have been unwise, but it did not amount to professional incompetency which warranted revocation of his funeral director license.
In Chaby v. State Board of Optometrical Examiners, 386 A.2d 1071 (Pa. Cmwlth. 1978), an optometrist's statements to a contact lens patient to "go to hell" on the telephone, while "inexcusably discourteous" and "reprehensible," did not reach the level of gross incompetence. Chaby, 386 A.2d at 1074.
The facts of this controversy are far different than the situations presented in Nelson, Ciavarelli and Chaby. Unlike the above cases, Vitteck's conduct was expressly prohibited in the Practical Nurse Law and regulations and a direct departure from the technical standards required to practice her profession.
LPNs must "[r]espect and consider, while providing nursing care, the individual's right to freedom from psychological and physical abuse" and "[a]ct to safeguard the patient from incompetent, abusive or illegal practice of any individual." 49 Pa.Code §21.148(a)(2) and (3).
In the context of abuse at long-term nursing facilities, Section 201.3 of the Department of Health's regulations defines "abuse" as:
Abuse - The infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm or pain or mental anguish, or deprivation by an individual, including a caretaker, or goods or services that are necessary to attain to maintain physical, mental and psychosocial well-being. This presumes that instances of abuse of all residents, even those in a coma, cause physical harm, or pain or mental anguish. The term includes the following:
(i) Verbal abuse - Any use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend or disability. Examples of verbal abuse include:
(a) Threats of harm.
(b) Saying things to frighten a resident, such as telling a resident that the resident will never see his family again.
****28 Pa.Code §201.3
(iv) Mental abuse - Includes humiliation, harassment, threats of punishment or deprivation.
Telling an 89-year old dementia patient that she is "tired of being a fucking babysitter" in conjunction with forcibly removing a sensor from the patient's hand is abusive to that patient. Similarly, telling a 97-year old wheel-chair bound dementia patient that she would "break her hands" and another wheel-chair bound patient that she would "make sure that the patient never throws anything again" is beyond "inexcusably discourteous;" they are threats of violence and intimidation and were abusive.
Finally, Vitteck believes her conduct was comparable to the nurse's actions in Leukhardt v. Commonwealth, State Board of Nurse Examiners, 403 A.2d 645 (Pa. Cmwlth. 1979). In Leukhardt, this Court found that slapping a patient's hand, where the patient was in danger of falling out of bed, did not constitute a violation of the standards of nursing care where the nurse's action "was calculated to promote her patient's well-being, not impair it." Leukhardt, 403 A.2d at 647. In this case, however, there was no evidence that the forceful removal of the sensor was "calculated to promote I.T.'s well-being." In fact, the record reflects that Nurse Molinaro was sitting with I.T. and attempting to coax I.T. to give her the sensor so there was no danger that I.T. would fall when Vitteck forcibly removed it. Moreover, as the Board aptly points out, even if a case could be made for the removal of the sensor in such a manner, no plausible argument can be made that using profanity or threatening elderly dementia patients promotes their safety or well-being.
II.
Evidence Regarding Vitteck's Use of Profanity
As it related to Allegations of "Unprofessional Conduct" and Psychological Abuse
under The Board's Regulations , 49 Pa.Code §21.148(a)(2) and (3)
Next, Vitteck asserts that the Board's findings of "unprofessional conduct" based on psychological abuse were not supported by substantial evidence because the witnesses did not all testify that she used profanity towards I.T.. She also maintains that she "denied use of any profanity" at the hearing. The account of events, therefore, was "inconsistent and conflicting."
The record does not support Vitteck's argument. All three Humbert Lane employees who heard Vitteck's statements to I.T. testified that Vitteck used profanity. Nurse Molinaro testified that when Vitteck returned to the nurses' desk, she said to I.T. "[s]hut up. I'm tired of being a fucking babysitter." Nurse Hixenbaugh testified that Vitteck "told I.T. that she was tired of playing her games and that she wasn't her babysitter." On cross-examination, she clarified that she heard Vitteck utter a profanity either "fuck or damn." Supervisor Whitmer also testified that she heard Vitteck telling I.T. to shut up and "I'm tired of being a blank babysitter." Supervisor Whitmer explained that the word "blank" was an expletive. Although Vitteck denied that she made any inappropriate comments or cursed at I.T., the Board explained in its Decision that it found Nurse Molinaro, Nurse Hixenbaugh and Supervisor Whitmer to be more credible.
This Court is bound by the credibility determinations of the Board as well as the facts derived from those determinations. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997); Toms v. Bureau of Professional and Occupational Affairs, 800 A.2d 342 (Pa. Cmwlth. 2002). As the fact-finder, the Board has the prerogative to believe part, all or none of any witness' testimony. Batoff v. State Board of Psychology, 561 Pa. 419, 750 A.2d 835 (2000). Even where "there is evidence to the contrary and even though [the Court] might have resolved the conflict differently," this Court is precluded from disturbing the Board's determination. Grabish v. Workmen's Compensation Appeal Board (Trueform Foundations), 453 A.2d 710, 713 (Pa. Cmwlth. 1982).
Because the record supports the Board's determination that Vitteck used profanity and threats of violence, this Court finds that the Board did not err when it found that Vitteck psychologically abused her patients.
III.
Negative Evidence
Vitteck also argues that the Board's credibility determination was based upon "negative evidence" as the Board noted that it considered Vitteck's failure to include critical facts about the sensor or profanity in her Humbert Lane post-incident statement, and failed to mention her threats to M.E. and E.B. in her WCHC post-incident statement.
"Negative evidence" is improper only where it is used to disprove positive evidence or prove essential facts. Twining v. Lehigh & N.E.R., 310 Pa. 429, 165 A. 489 (1933); Stack v. Wapner, 368 A.2d 292 (Pa. Super. 1976).
Here, the Board did not rely solely on negative evidence. As it explained in its Decision, it relied on the corroborating testimony of the witnesses, whether the witnesses were biased and how the incident was reported in the post-incident reports. The record contains substantial positive evidence to support the Board's determination. Nurse Molinaro, Nurse Hixenbaugh and Supervisor Whitmer corroborated each other's testimony, did not express any bias or ill will towards Vitteck and were consistent in their post-incident statements. Conversely, Vitteck did not offer any corroborating evidence and her post-incident statements did not include any information about the sensor or her use of profanity.
Similarly, in connection with the WCHC incident, the Board applied the same standard to determine credibility. Nurse Keil testified that Vitteck placed her finger in E.B.'s face and told E.B. if E.B. ever slapped her again she would break E.B.'s hands. Nurse Keil also testified that Vitteck told M.E. that "if you ever throw anything at me you will never throw anything at anyone again." Conversely, Vitteck denied threatening E.B., and testified that she had no recollection of any incident involving M.E.
As reflected in the Board's Decision, the Board made its credibility determinations about the WCHC incidents based upon Nurse Keil's testimony and corroborating post-incident statement. It did not reject Vitteck's testimony simply because she did not include her threat to M.E. in her post-incident statement.
Based upon the credible testimony of the Commonwealth's witnesses, there was substantial evidence to support the Board's findings of fact, its conclusion of law and its revocation of Vitteck's nursing license.
The order of the Board is affirmed.
Vitteck also asserts that the Board's credibility determination is in error because the Board failed to harmonize its holding from the contrary unemployment decision. As the Board explained in footnote 4 of its Adjudication and Order, "[o]nly the State Board of Nursing has the legal authority to determine whether a licensee has violated Section 16 of the Law. As such, it is not bound by the factual determinations made by the Referee on standard of care cases." --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 29th day of November, 2012, the Order of the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs, State Board of Nursing, in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge