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Mason v. Department of Public Health
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0426 Rel
Case Date: 12/19/2001
Rule 23 Order filed
November 5, 2001;
Motion to publish granted
December 19, 2001


NO. 5-00-0426

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________

BRENDA MASON, )Appeal from the
)Circuit Court of
Plaintiff-Appellant, )Williamson County.
)
v.)No. 99-MR-57
)
THE DEPARTMENT OF PUBLICHEALTH)
and DR. JOHN R. LUMPKIN,Director,)Honorable
)Phillip G. Palmer,
Defendants-Appellees. )Judge, presiding.

___________________________________________________________________________

JUSTICE HOPKINS delivered the opinion of the court:

Brenda Mason (plaintiff) appeals from the trial court's affirmance of a final order ofthe Department of Public Health (the Department) finding that plaintiff abused a nursinghome resident. The Department's decision was based upon the recommendation of anadministrative law judge (ALJ). Plaintiff argues (1) that the ALJ's finding that plaintiff'sconduct was not an isolated incident is against the manifest weight of the evidence, (2) thatthe ALJ's finding that plaintiff's conduct was in furtherance of teasing a nursing homeresident is against the manifest weight of the evidence, and (3) that the ALJ's conclusion thatplaintiff was guilty of abusing a nursing home resident is clearly erroneous. We affirm.

FACTS

At the evidentiary hearing before the ALJ, the following pertinent evidence waspresented. Lenitta Chandler testified that she was employed as a certified nurse's aide(CNA) at Saint Anne's Health Care Center (Saint Anne's), where she worked with plaintiff,who is also a CNA. Saint Anne's is a residential living facility for the elderly. Chandlerdescribed Saint Anne's as a "traditional nursing home setting." While employed at SaintAnne's, Chandler was acquainted with an elderly female resident by the name of LolaJuergens, who was alert but had some dementia. Other witnesses testified that Juergenssuffered from Parkinson's disease.

Chandler described the incident for which plaintiff was accused of abuse, which involved Juergens, plaintiff, and another CNA, Susan Kastner. Chandler testified that shewalked into a community room where the residents watch television with the staff. WhenChandler walked into the room, Juergens was sitting in a chair with a tray table in front ofher. On the tray table was a glass of juice. Chandler testified that Kastner was sitting to theright of Juergens and plaintiff was sitting to the left of Juergens.

Chandler testified that when she entered the room, Kastner was poking Juergens inthe ribs and that plaintiff "was doing this with her hair." When the attorney for theDepartment asked Chandler if Kastner and plaintiff were bothering Juergens by touchingand poking her, Chandler replied affirmatively. Chandler stated that Juergens threatened tothrow her glass of juice on "her," but Chandler did not specify whether "her" referred toKastner or plaintiff. Chandler testified that plaintiff continued "doing this" with Juergens'hair, that Kastner continued poking Juergens in the ribs, and that Juergens then threw theglass of juice on plaintiff.

Chandler testified that after Juergens threw the juice on plaintiff, plaintiff became"very upset [and] jumped up and started cussing." According to Chandler, plaintiff said toJuergens: "God damn you. Look what you did to my pants. I ought to take you outside inthe ice and let you freeze." Chandler also testified that plaintiff called Juergens a bitch. Chandler described Juergens' demeanor after the incident as "shaking a great deal."

Connie Res, a CNA at Saint Anne's for 26 years prior to the hearing, testified that shewas on duty at the time of the incident. Res testified that she witnessed Kastner pokingJuergens in the ribs. Res testified that Juergens told Kastner to quit but that Kastner "keptit up." Res testified that she saw plaintiff "reach up and rub [Juergens] on the top of thehead." Res also agreed that plaintiff told Juergens "it will be okay" as plaintiff rubbed herhand over Juergens' head one time. Res testified that Juergens threatened to pour the juiceon plaintiff and then did so.

Kastner testified that her action of poking Juergens in the ribs initially causedJuergens to be upset and that Juergens was already upset when plaintiff came into the roomand sat beside Juergens. Kastner testified that when plaintiff sat down, she rubbed Juergens'head and said: "It will be okay, Honey. It will be okay, Honey." Kastner testified that afterJuergens threw the juice on plaintiff, plaintiff said, "God damn you, [Juergens], you threwjuice on me." When Kastner was asked whether she normally teased residents, she replied,"No, not always; but once in a while, we have; yeah." Kastner denied that plaintiff saidanything to Juergens about leaving her out in the cold.

Mark Trevathan was the registered nurse on duty the day of the incident. He testifiedthat no one reported any problem with Juergens, plaintiff, or Kastner that day. He testifiedthat he saw Juergens that day, after the incident, and he did not notice anything differentabout her behavior.

On July 7, 1999, the ALJ issued his report and recommendation, finding plaintiffsubject to the jurisdiction of the Department pursuant to the Nursing Home Care Act (theAct) (210 ILCS 45/1-101 et seq. (West 2000)), because she was employed as a CNA at SaintAnne's at the time of the alleged abuse-January 9, 1999. The ALJ determined that undersection 1-103 of the Act, abuse is defined as any physical or mental injury or sexual assaultinflicted on a nursing home resident other than by accidental means (210 ILCS 45/1-103(West 2000)). The ALJ further found that under the Illinois Administrative Code, verbalabuse may be established by evidence that (1) the CNA used oral, written, or gesturedlanguage, (2) the language was disparaging or derogatory, and (3) the language was withinthe hearing or seeing of the resident (77 Ill. Adm. Code

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