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Molden v. Mississippi State Department of Health

September 17, 1998

LONDA MOLDEN AND APRIL AVERY
v.
MISSISSIPPI STATE DEPARTMENT OF HEALTH



Before Sullivan, P.j., McRAE And Smith, JJ.

The opinion of the court was delivered by: Smith, Justice

DATE OF JUDGMENT: 03/06/97

TRIAL JUDGE: HON. PAT H. WATTS, JR.

COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

DISPOSITION AFFIRMED - 9/17/98

MOTION FOR REHEARING FILED: MANDATE

ISSUED:

¶1. On January 16, 1995, Dorothy Gibson, a resident at Chateau Deville Nursing Home, was administered a whirlpool bath by Certified Nurse Aide Londa Molden which resulted in Gibson receiving burns to her lower extremities. Molden was assisted by Certified Nurse Aide April Avery in transporting Gibson from her room to the whirlpool bath and back to her room. After an initial investigation, the Department of Health found allegations of neglect against Molden and Avery to be valid, and an administrative hearing was requested by both Molden and Avery. On August 10, 1995, an administrative hearing was conducted before Hearing Officer Arthur C. Sharpe, Jr., and on March 29, 1996, Hearing Officer Sharpe found the charges of neglect to be valid and revoked Molden's and Avery's nurse aide certification. Molden and Avery were removed from the Certified Nurse Aide Roster and permanently placed on the State Nurse Aide Abuse Roster.

¶2. Molden and Avery appealed the hearing officer's decision to the Jackson County Chancery Court, and the court affirmed the hearing officer's decision. Molden and Avery now appeal to this Court and allege: (1) that the regulations adopted by the Department of Health violate the United States and Mississippi Constitutions; (2) that the hearing officer erred in denying Molden's and Avery's motion to compel the Department of Health to disclose all documents in its files regarding this case; (3) that the hearing officer erred in denying Molden's and Avery's motion to permit access to witnesses testifying on behalf of the Department of Health; and (4) that affirming the adverse findings against Avery was arbitrary and capricious. The Department of Health argues: (1) that the regulations adopted are constitutional; (2) that discovery is not required in administrative hearings; (3) that access to witnesses is not required and full cross-examination was allowed at the administrative hearing; and (4) that affirming the adverse findings against Avery was not arbitrary and capricious.

FACTS

¶3. On January 16, 1995, Dorothy Gibson, a long-term resident at Chateau Deville Nursing Home in Moss Point, was administered a whirlpool bath by Certified Nurse Aide Londa Molden, and as a result, Gibson received second degree burns to her lower extremities. Molden was assisted by Certified Nurse Aide April Avery in transporting Gibson from her room to the whirlpool room for her whirlpool bath. After placing Gibson in the whirlpool bath, Avery departed from the room. Molden then filled the bath with water while testing the temperature with her double-gloved hands. After discovering that there was no soap in the whirlpool room, Molden left Gibson unattended and went across the hall to retrieve some soap. Molden returned one to two minutes later and completed giving Gibson her bath. Avery returned to the whirlpool room to assist in transporting Gibson back to her room after the bath and noticed that Gibson's toe was bleeding. Molden and Avery then noticed that the skin on Gibson's legs was beginning to peel. Avery stated to Molden that she should report this to the treatment nurse, and Molden stated that she would report the change in Gibson's condition. However, after returning Gibson to her room, neither Molden nor Avery reported the change in Gibson's condition to the treatment nurse, but instead, Molden reported to Cynthia Harrison, LPN and treatment nurse, that Gibson was ready for her dressings.

¶4. Harrison proceeded to Gibson's room to administer the treatment for Gibson's decubitus when she discovered that Gibson's legs were very red and had blisters on them. Harrison then notified two of the charge nurses about Gibson's condition, and Gibson was transported to the Singing River Hospital where she was diagnosed with second degree burns to her legs. Both Molden and Avery were questioned about the change of Gibson's condition by their supervisors, and they responded that they noticed the change in Gibson's condition after the whirlpool bath but did not report the change in condition although Avery believed that Molden would report the change in Gibson's condition.

¶5. After Thomas Miller, Administrator of Chateau Deville Nursing Home, filed a written report of the incident, Mary Lou Vozzo, Nurse Aide Surveyor, Mississippi State Department of Health (hereinafter "the Department"), Division of Health Facilities Licensure and Certification, was assigned to conduct an investigation of the incident on February 13 and 14, 1995. On March 1, 1995, after an investigation of the complaint, the Department determined that the allegations of neglect against Molden and Avery were valid and informed Molden and Avery of their right to an administrative hearing. Molden and Avery were further informed that if they did not request a hearing, or if the complaint was proven, that their names would be removed from the Certified Nurse Aide Roster and placed permanently on the State Nurse Aide Abuse Roster. Molden and Avery each requested an administrative hearing, and on August 10, 1995, a hearing was held before Hearing Officer Arthur C. Sharpe, Jr.

¶6. On March 29, 1996, Hearing Officer Sharpe found that the findings of the staff of the Division of Licensure and Certification were valid and supported by an overwhelming quantum of credible evidence. Hearing Officer Sharpe specifically found that the failure to properly ascertain that the temperature of the water did not exceed a safe level before lowering the resident into it, and thereafter leaving the resident in scalding water constitutes resident neglect on the part of Molden. Failing to report so that immediate palliative, mitigating or curative measures could have been instituted constitutes resident neglect on the part of both Avery and Molden.

Hearing Officer Sharpe then ordered that the certification of Molden and Avery should be permanently revoked, that Molden and Avery be removed from the Certified Nurse Aide Roster, and that Molden and Avery be permanently placed on the State Nurse Aide Abuse Roster.

¶7. Molden and Avery then appealed the adverse findings of the hearing officer to the Jackson County Chancery Court, and the chancery court affirmed the decision of the Department and Hearing Officer Sharpe holding that the Department's findings were supported by substantial credible evidence and that the Department's decision was not arbitrary or capricious, did not violate the Constitutional rights of Molden and Avery, and did not constitute an abuse of discretion. Aggrieved by the chancery court's decision, Molden and Avery appeal to this Court and raise the following issues:

I. WHETHER THE MISSISSIPPI DEPARTMENT OF HEALTH'S REGULATIONS REGARDING THE REMOVAL OF NURSE AIDES FROM THE REGISTRY VIOLATE THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

II. WHETHER THE HEARING OFFICER ERRED IN DENYING MOLDEN'S AND AVERY'S MOTION TO COMPEL THE DEPARTMENT OF HEALTH TO DISCLOSE ALL DOCUMENTS IN ITS FILES REGARDING THIS CASE.

III. WHETHER THE HEARING OFFICER ERRED IN DENYING MOLDEN'S AND AVERY'S MOTION TO PERMIT ACCESS TO WITNESSES TESTIFYING ON BEHALF OF THE DEPARTMENT OF HEALTH.

IV. WHETHER THE CHANCERY COURT'S AFFIRMANCE OF THE ADVERSE FINDINGS AGAINST AVERY WAS ARBITRARY AND CAPRICIOUS OR ALTERNATIVELY LACKED SUBSTANTIAL EVIDENCE.

STANDARD OF REVIEW

¶8. This Court "has generally accorded great deference to an administrative agency's construction of its own rules and regulations and the statutes under which it operates." Mississippi State Tax Comm'n v. Mask, 667 So. 2d 1313, 1314 (Miss. 1995). See, e.g., Melody Manor Convalescent Ctr. v. Mississippi State Dep't. of Health, 546 So. 2d 972, 974 (Miss. 1989); General Motors Corp. v. Mississippi State Tax Comm'n, 510 So. 2d 498, 502 (Miss. 1987). Review by the trial court and this Court of orders of a state agency are limited by the arbitrary and capricious standard. Mask, 667 So. 2d at 1314-15 (citing Mississippi State Tax Comm'n v. Dyer Inv. Co., 507 So. 2d 1287, 1289 (Miss. 1987)). An appeal of an order of an administrative agency "should be to determine whether or not the order of the administrative agency `(1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.'" Id. at 1315 (quoting Mississippi State Tax Comm'n v. Vicksburg Terminal, Inc., 592 So. 2d 959, 961 (Miss. 1991)).

DISCUSSION OF LAW I. WHETHER THE MISSISSIPPI DEPARTMENT OF HEALTH'S REGULATIONS REGARDING THE REMOVAL OF NURSE AIDES FROM THE REGISTRY VIOLATE THE ...


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