STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
03 DHR 1574
COUNTY OF ASHE
VIRGINIA RUTH MAHALA,
Petitioner,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, OFFICE OF
LEGAL AFFAIRS,
Respondent.
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DECISION
THIS MATTER came on for hearing before the undersigned James L. Conner, II,
administrative Law Judge, on the 2nd day of December, 2003, in Newton, North Carolina.
APPEARANCES
Petitioner:
Virginia Ruth Mahala, Pro se
348 Cabbage Creek Road
Creston, NC 28615
For Respondent:
Wendy L. Greene
Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
ISSUE
Whether Respondent substantially prejudiced Petitioner’s rights, acted erroneously, failed
to use proper procedure, and acted arbitrarily or capriciously when it substantiated the allegation
that Petitioner abused multiple residents by jerking, pulling, yanking, cursing at, and belittling
them while providing them with care.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-255
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. §150B-23
42 CFR § 488.301
10 NCAC 3B.1001
EXHIBITS
Respondent’s exhibits 1, 3, 4, 5, 6, 11, 12, 13, 14, and Petitioner’s exhibits 1 and 2 were
admitted into evidence.
BASED UPON careful consideration of the sworn testimony of the witnesses presented
at the hearing and the entire record in this proceeding, the Undersigned makes the following
findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence
and has assessed the credibility of the witnesses by taking into account the appropriate factors for
judging credibility, including but not limited to the demeanor of the witness, any interests, bias,
or prejudice the witness may have, the opportunity of the witness to see, hear know or remember
the facts or occurrences about which the witness testified, whether the testimony of the witness is
reasonable, and whether the testimony is consistent with all other believable evidence in the case.
From the sworn testimony of witnesses, the undersigned makes the following:
FINDINGS OF FACT
1.
At all times relevant to this matter, Petitioner Virginia Ruth Mahala was a
certified nurse assistant at Ashe Memorial Hospital, Seagrave’s Care Center (“Seagrave’s”).
Seagrave’s is a nursing home in Jefferson, Ashe County, North Carolina, and as such, is subject
to N.C. Gen. Stat. §131E-255. ( T pp. 12, 14, 15, 17)
2.
Petitioner started working at Seagrave’s as a housekeeper, and later became a
nurse assistant. As a nurse assistant her duties centered around helping residents with their
activities of daily living, such as making sure residents were kept dry, feeding, and turning them.
Some of the residents at Seagrave’s require total care, or assistance with all of the activities of
daily living. Petitioner worked third shift, from 10:00 p.m. to 6:00 a.m. (T pp. 15, 16, 20)
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Petitioner understands abuse of residents to be hitting, yanking, cursing at them,
failing to provide them services, or speaking to them in an ugly manner. At Seagrave’s,
Petitioner attended an in-service training on abuse and neglect. Petitioner placed a handout from
the training on her locker so she could look at it often. (T pp. 14, 18, 32)
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At Seagrave’s, Petitioner worked with, among others, residents GJ, FB, CW, BK,
EH, BF, KG, AL, and EW. For GJ, Petitioner would often have to provide care for a breathing
tube in the resident’s neck. For FB, she provided care related to hygiene, and turned the patient
regularly. EH, BF, AL and EW had to be fed, kept clean, and turned as well. KG also required
total care but did not require feeding because she was on a feeding tube. Petitioner recalled that
residents FB, EH, BF, AL and EW were able to talk. (T pp. 23-28)
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To turn residents, Petitioner would grab their bed pads, on which the resident was
lying, and use the pad to maneuver the resident. For residents who slept on bed sheets, Petitioner
would use the sheet to turn them. Both methods of turning residents required two staff persons.
Petitioner was taught the two-person turn protocol at Seagrave’s and at other places. However
she sometimes turned patients by herself. (T pp. 29 - 32)
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6.
At all times relevant to this matter, Kathy Barker was a certified nurse assistant at
Seagrave’s. She works twelve hour shifts, from 6:00 p.m. to 6:00 a.m., three days a week. Ms.
Barker worked with Petitioner at Seagraves. (T pp. 40, 41)
7.
In May and June of 2003, Ms. Barker noticed that Petitioner was rude to some of
the residents. She witnessed Petitioner yank and jerk resident EW’s mattress pad and say to EW,
“you wouldn’t be in this shape if you weren’t so GD sorry.” EW reacted by opening her eyes
wide. Ms. Barker also saw Petitioner cause a skin tear on EW’s arm by turning her by herself,
and in the process pulling too hard on the pad. Ms. Barker was on the other side of EW’s bed
when this happened, and was not able to properly grasp the pad before Petitioner yanked it. (T
pp. 42, 43)
8.
Resident BK, who is approximately in her eighties, is often in a fetal position.
One evening, when Petitioner and Ms. Barker were in BK’s room, Ms. Barker saw Petitioner
jerk BK’s feet down. Something within BK’s body made a popping noise, and Petitioner told
BK, “get your GD feet out of your ass.” Ms. Barker also saw Petitioner jerk the legs of resident
BF. Other times, when BF would reach up trying to grab a staff person to pinch her, Petitioner
would shove BF back down onto the bed. BF, BD and EW cannot speak. Ms Barker said that
Petitioner treated these residents worse than she did those capable of talking back, defending
themselves, or telling a nurse what was being done to them. (T pp. 44 - 47)
9.
Ms. Barber said that normal protocol to straighten the body of a resident curled
into fetal a position, is to roll down the head of the bed, turn the resident over, and attempt to
straighten out their legs. Residents are not to be yanked and jerked. (T p. 46)
10.
Petitioner once jerked on resident AL’s legs when she and Ms. Barker were
attempting to put some pants on him. AL told Petitioner, “little woman, you’re getting just a
little bit rough.” (T pp. 52, 53)
11.
Ms. Barker reported Petitioner’s behavior to her immediate supervisors. When
the supervisors did not do anything, she and two coworkers, Becky Severt and Janice Testerman,
reported what they had seen to David Jones, the Clinical Supervisor. (T pp. 48, 49)
12.
At all times relevant to this matter, Mary Baldwin was a certified nurse aide at
Seagrave’s. Ms. Baldwin works third shift, and knows Petitioner because they worked together
approximately five nights per week. (T pp. 64 - 66)
13.
Ms. Baldwin saw Petitioner jerk resident EW when she turned her without
waiting for Ms. Baldwin to help. She also heard Petitioner cursing at EW, telling her to “get
your damn feet down out of your ass.” In addition, Ms. Baldwin saw Petitioner mistreat FB and
B by jerking them around, pushing them into the side rails, and banging their heads against the
side rails. She has also seen Petitioner jerk AF’s legs. In response, AF would scrunch up and
become stiff. (T pp. 66, 67, 69, 70, 71)
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14.
Ms. Baldwin reported what she had seen to two third shift nurses, and then to
David Jones. She also reported Petitioner’s behavior to Sherry Cox, Human Resources Director.
Since Petitioner’s departure from Seagrave’s, Ms. Baldwin has noticed that the residents with
whom Petitioner used to work now smile more, and respond better. (T pp. 71 - 74)
15.
At all times relevant to this matter, Janice Testerman was a nurse assistant at
Seagrave’s. Ms. Testerman works from 6:00 p.m. to 6:00 a.m. She knew Petitioner before
working at Seagrave’s, and worked with her there for one year. (T p. 88 - 89)
16.
Ms. Testerman saw Petitioner treat patients roughly. According to Ms.
Testerman, EW was a difficult resident to turn alone because her body is contracted and stiff, and
when Petitioner did so, it was in a rough manner. She also saw Petitioner turn another resident,
BK, roughly. (T pp. 91, 92)
17.
Resident FB slept with two pillows. Ms. Testerman saw Petitioner yank a pillow
from under FB’s head, telling her that she was “breaking her damn neck” by sleeping on two
pillows. Petitioner treated resident CW in a similar manner; she was rough when she turned him,
and told him he wouldn’t be in the condition he was if he wasn’t so sorry. CW became
frightened, and did not want to be left alone. In addition, Ms. Testerman heard Petitioner tell AL
that he wouldn’t be so contracted if he was not so damn lazy. (T pp. 92, 93, 94)
18.
At all times relevant to this hearing, Sherry Cox was Human Resources Director
at Seagrave’s. Ms. Cox is responsible for employee investigations, hiring and firing, and
workers’ compensation. (T pp. 104. 105)
19.
David Jones and another employee, Carol Burt, reported to Ms. Cox the
information received regarding Petitioner’s behavior. Ms. Cox conducted the facility
investigation. The investigation primarily consisted of interviews with Petitioner and the aides
who worked with her, including Kathy Barker, Mary Baldwin, and Janice Testerman. She found
that the nurse aides were credible, presented similar recounts of Petitioner’s behavior, and
presented no indication that they were conspiring against Petitioner. (T pp.105, 106, 107)
20.
At all times relevant to this matter, Barbara Powell was an Investigator with the
Nurse Aide Registry, Health Care Personnel Registry (“NAR/HCPR”). The NAR/HCPR is
mandated to investigate allegations of abuse, neglect, misappropriation and diversion of drugs by
health care personnel in certain health care facilities. In mid to late June, 2003, Ms. Powell
received from Seagrave’s a five-day report on an allegation that Petitioner Virginia Ruth Mahala
abused a resident, GJ. Ms. Powell investigated the allegation. (T pp. 111 -114)
21.
Ms. Powell conducted the investigation during an on-site visit to Seagrave’s,
where she reviewed various files, and interviewed the Petitioner and witnesses. (T p. 115)
22.
Petitioner denied cursing at AL, throwing a towel on GJ, and yanking a pillow out
from under FB’s head. Petitioner acknowledged being moody, but says that her treatment of
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residents was not affected by her moods, and believed that the residents of Seagrave’s never
reacted to her bad moods. ( T pp. 34, 37, 38)
23.
Ms. Powell concluded that Petitioner did in fact abuse multiple residents of
Seagrave’s by jerking and pulling them, belittling them, and cursing at them while providing
them care. She felt that Petitioner’s behavior was intentional, continuous, and that it was
increasing in severity. (T pp. 115, 116)
24.
The fact that Petitioner chose residents who were least able to report her abuse or
stand up for themselves indicated that her selection of victims was intentional. Additionally,
Petitioner did not exhibit this behavior in front of nurses, only nurse aides. The residents’ skin
tears, pain from being jerked, and mental anguish constituted the pain and suffering required to
establish abuse. (T pp. 116, 117)
25.
Petitioner was notified by letter that a finding of abuse would be listed against her
name on the Health Care Personnel Registry. (T pp. 117, 118)
Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge
makes the following:
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has jurisdiction over the parties and the
subject matter pursuant to chapters 131E and 150B of the North Carolina General Statutes.
2.
All parties have been correctly designated and there is no question as to
misjoinder or nonjoinder.
3.
As a certified nurse aide working in a nursing home, Petitioner is subject to the
provisions of N.C. Gen. Stat. §§ 131E-255, 256.
4.
“Abuse” is defined as “the willful infliction of injury, unreasonable confinement,
intimidation, or punishment with resulting physical harm, pain or mental anguish.” 10 NCAC
3B.1001; 42 CFR Part 488.301.
5.
On or about May 1, through June 13, 2003, Petitioner abused multiple residents of
Seagrave’s Care Center, Jefferson, North Carolina, by jerking, pulling, and yanking the residents,
and cursing at and belittling them while providing them with health care.
6.
Respondent did not prejudice Petitioner’s rights because there is sufficient
evidence to support Respondent’s conclusion that Petitioner abused multiple residents.
Based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes
the following:
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DECISION
That the Respondent’s decision to place a finding of abuse at Petitioner’s name on the
Nurse Aide Registry and the Health Care Personnel Registry be UPHELD.
NOTICE
The Agency that will make the final decision in this contested case is the North Carolina
Department of Health and Human Resources, Division of Facility Services.
The Agency is required to give each party an opportunity to file exceptions to the
recommended decision and to present written arguments to those in the Agency who will make
the final decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. §
150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the
parties’ attorney of record and to the Office of Administrative Hearings.
In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact
contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the
preponderance of the admissible evidence. For each finding of fact not adopted by the agency,
the agency shall set forth separately and in detail the reasons for not adopting the finding of fact
and the evidence in the record relied upon by the agency in not adopting the finding of fact. For
each new finding of fact made by the agency that is not contained in the Administrative Law
Judge’s decision, the agency shall set forth separately and in detail the evidence in the record
relied upon by the agency in making the finding of fact.
This the 5th day of March, 2004.
______________________________
James L. Conner, II
Administrative Law Judge
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