Nursing Home Abuse: Revocation Of CNA’s License
By: Donna Russo, Esq.
On October 25, 2011, the New Jersey Appellate Division upheld the decision by the Department of Health and Senior Services that found that a certified nurse’s aide (CNA) had abused a resident of a long term care facility resulting in revocation of her certification and having an abuse and neglect finding next to her name on the New Jersey Aide Registry. New Jersey Department of Health and Senior Services v. Marie C. Moise, Docket No. A-6248-09T2.
A new LPN at the facility was observing patient care as part of her orientation. To this LPN’s credit, she observed abusive behavior and immediately reported it to administration. CNA Moise was caring for a resident who was 85 years old, wheelchair dependent and suffering from dementia and urosepsis. This resident was know to be combative with the staff. While CNA Moise was helping the resident into his wheelchair, he repeatedly stated “easy does it” in a loud voice. CNA Moise, apparently frustrated with the outburst, snapped the footrest of the wheelchair down and grazed the resident’s leg. The resident continued to yell “easy does it” and CNA Moise pushed the resident’s head causing it to move sideways on impact. CNA Moise also told the resident to make his own way into the day room. There were no visible signs of injury on the resident.
The long term care facility commenced an investigation which disclosed the CNA Moise had abused and neglected the resident. CNA Moise was terminated. At the hearing, the long term care facility testified that it would never be appropriate for a staff member to strike a resident or to tell a resident to shut up when being loud and abusive. In such a situation, the staff should ensure the resident was safe, walk away and return later.
The Appellate Division affirmed the decision and held:
“It is the public policy of the State ‘to secure for elderly patients, residents and clients of health care facilities serving their specialized needs and problems, the same civil and human rights guaranteed to all citizens…’ N.J.S.A. 52: 27G-1. Thus, a resident of a long-term care facility ‘has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion.’ 42 C.F.R. 483.13(b) (1992); see also N.J.A.C. 8:39’4.1(a)(5). Such individuals are entitled ‘[t]o be treated with courtesy, consideration, and respect for the resident’s dignity and individuality. N.J.A.C. 8: 39-4.1(a)(12). To this end, ‘abuse’ is defined as ‘the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.” 42 C.F.R 483.301 (2003); see also N.J.S.A. 52: 27G-2(a). ‘Neglect” is defined as the ‘failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” 42 C.F.R. 488.301 (2003).
The Court held that CNA Moise’s conduct resulted in his mental anguish and the refusal to transport the resident constituted a denial of care and patient neglect.