Cooper v. Delaware Board of Nursing ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CAESAR COOPER, )
)
Appellant, )
)
v. )
)
C.A. No. N19A-12-011 CLS
DELAWARE BOARD OF )
NURSING, )
)
Appellee. )
)
)
Date Decided: February 26, 2021
Upon Appellant Caesar Cooper’s Appeal from the Decision of the Delaware Board
of Nursing
AFFIRMED.
ORDER
Caesar K. Cooper, Pro Se.
Jennifer L. Singh, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for Appellee.
SCOTT, J.
Before the Court is Appellant Caesar Cooper’s (“Mr. Cooper”) appeal of the
December 19, 2019 Delaware Board of Nursing Order (the “Order”). The Delaware
Board of Nursing (the “Board”) found that Mr. Cooper violated Board Regulation
10.4.1. Mr. Cooper appealed the Board’s decision to this Court.
The Court’s review of the record shows that the Board’s decision is supported
by substantial evidence and without legal error or abuse of discretion. Therefore, the
Board’s Order is AFFIRMED for the reasons explained below.
I. FACTUAL AND PROCEDURAL BACKGROUND1
On November 15, 2017, Mr. Cooper worked the night shift at Cadia
Healthcare in Wilmington, Delaware. That evening, around 11:00 pm, Mr. Cooper
instructed Certified Nursing Assistant Shantaya Morris (the “CNA”) that a patient
(“Patient CN”) would need Z-guard cream applied to his buttocks at some point
during their shift together. Around 4:00 am, the CNA roused Patient CN in
preparation for the application of the Z-guard cream.
According to Mr. Cooper, a routine is followed for turning patients where he
(1) discusses with a certified nursing assistant (“c.n.a.”) regarding how they would
turn a patient, (2) instructs a c.n.a. on where to stand while turning the patient, (3)
1
For the factual and procedural history of this matter, the Court relies heavily on
the (1) October 9, 2019 Recommendation of the Hearing Officer and the (2)
December 19, 2019 Delaware Board of Nursing Order. See Appellee’s Answ. Br.,
Ex. A-B.
1
adjusts the height of the bed, (4) speaks to the patient prior to turning to prepare the
patient for the turn, and (5) counts to three prior to the turn.
On this evening, Mr. Cooper did not follow that routine. Mr. Cooper did not
discuss with the CNA regarding how they would turn Patient CN, did not direct the
CNA on where to stand, did not count to three prior to turning Patient CN, and did
not speak to Patient CN prior to turning. As a result, Patient CN cried out in pain
when Mr. Cooper began to turn him, asked Mr. Cooper why he was being so rough,
and asked Mr. Cooper if he had done something to upset him. Mr. Cooper left the
room without responding to Patient CN.
Following this incident, Patient CN filed a complaint against Mr. Cooper with
Cadia Healthcare (“Cadia”). Cadia began investigating Patient CN’s complaint and
ordered the CNA to provide a statement about the incident. On November 15, 2017,
approximately twelve hours after the incident, the CNA provided a statement. The
CNA’s statement was consistent with Patient CN’s claim that Mr. Cooper turned
him roughly and did not speak to him. As a result, Cadia filed a complaint against
Mr. Cooper with the Division of Long-Term Care Residents Protection
(“DLTCRP”) and later terminated Mr. Cooper’s employment with Cadia.
On March 4, 2019, the Delaware Department of Justice (“DDOJ”) filed a
disciplinary complaint with the Delaware Board of Nursing against Mr. Cooper. On
September 5, 2019, a hearing officer (the “Hearing Officer”) convened a hearing.
2
On October 9, 2019, the Hearing Officer issued a recommendation (the
(“Hearing Officer’s Recommendation”) and found that Mr. Cooper violated Board
Regulations 10.4.1, 10.4.2.5, and 10.4.2.14. The Hearing Officer recommended to
the Board that Mr. Cooper be issued a letter of reprimand, that his nursing license
be placed on probation, and that he complete continuing nursing education credits.
After consideration of the Hearing Officer’s Recommendation and the parties’
exceptions to it, the Board found that the facts regarding the November 15, 2019
incident were insufficient to establish that Patient CN’s blood clot and hematoma
were caused by Mr. Cooper’s actions. Consequently, the Board rejected the Hearing
Officer’s conclusion, detailed in the Hearing Officer’s Recommendation, that Mr.
Cooper violated Board Regulations 10.4.2.5 and 10.4.2.14.
However, the Board determined that Mr. Cooper, through his conduct towards
Patient CN and the CNA on November 15, 2019, did not conform to the accepted
standards of the nursing profession. This determination means that Mr. Cooper
violated Board Regulation 10.4.1. For this violation, the Board reduced the
recommended discipline by issuing Mr. Cooper a letter of reprimand for failing to
competently and safely turn Patient CN and later issued an Order on December 19,
2019 that reflected these findings.
Following the Board’s December 19, 2019 Order, Mr. Cooper filed this
appeal.
3
II. PARTIES’ CONTENTIONS
Mr. Cooper contends that: (i) the Board arrived at its Decision without
substantial evidence that he violated the statute; (ii) the Board violated Mr. Cooper’s
right to due process and committed legal error; and (iii) the Board abused its
discretion in determining that Mr. Cooper violated Board Regulation 10.4.1.
The Board argues that: (i) the Board’s Decision is supported by substantial
evidence; (ii) the Board’s Decision was free from legal error and did not violate Mr.
Cooper’s due process rights, (iii) the Board did not abuse its discretion when it
determined Mr. Cooper’s behavior toward Patient CN was a violation of Board
Regulation 10.4.1.
III. STANDARD OF REVIEW
When an administrative board’s decision is appealed, this Court is limited to
reviewing whether the board’s decision is supported by substantial evidence and free
from legal errors.2 “Substantial evidence is that ‘which a reasonable mind might
accept as adequate to support a conclusion.’”3 “The ‘substantial evidence’ standard
of review of decisions from administrative agencies requires the reviewing court to
2
Eckeard v. NPC Int'l, Inc., 2012 WL 5355628, at *2 (Del. Super. Oct. 17, 2012)
(citing 29 Del. C. § 10142(d) (providing that, absent fraud, this Court reviews an
agency's decision to determine whether it was supported by substantial evidence on
the record before the agency) and Avon Prods. v. Lamparski, 293 A.2d 559, 560
(Del. 1972)).
3
Id. (quoting Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. 1981) (citing
Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966))).
4
search the entire record to determine whether, on the basis of all of the testimony
and exhibits before the agency, it could fairly and reasonably reach the conclusion
that it did.”4 A board abuses its discretion where it “exceed[s] the bounds of reason
in view of the circumstances” or “ignores[s] recognized rules of law or practice [] so
as to produce injustice.”5
The Court reviews questions of law de novo.6 Unless the board erred as a
matter of law, did not support its decision by substantial evidence, or abused its
discretion, the Court will uphold the board’s decision.7
IV. DISCUSSION
A. Substantial Evidence
Mr. Cooper contends that, since the Board found that he did not violate Board
Regulations 10.1.2.5 or 10.1.2.14, the record lacks substantial evidence to support
the Board’s conclusion that he violated Board Regulation 10.4.1. Mr. Cooper also
argues that Board Regulation 10.4.1 is vague to the extent that it causes one to guess
at its meaning and differ as to its application.
4
Nat'l Cash Register v. Riner, 424 A.2d 669, 674-75 (Del. Super. 1980) (citing
Winship v. Brewer School Comm., 390 A.2d 1089, 1092-93 (Me. 1978)).
5
Pitts v. White, 109 A.2d 786, 788 (Del. 1954).
6
Eckeard, 2012 WL 5355628, at *2 (citing Anchor Motor Freight v. Ciabattoni,
716 A.2d 154, 156 (Del. 1998)).
7
Id. (citing Carrion v. City of Wilmington, 2006 WL 3502092, at *3 (Del. Super.
Dec. 5, 2006)).
5
Mr. Cooper’s argument fails. The Board is not precluded from finding that
Mr. Cooper violated Board Regulation 10.4.1 where it does not find that Mr. Cooper
violated Board Regulations 10.4.2.5 or 10.4.2.14. Mr. Cooper cites to Gillespie v.
Delaware Bd. of Nursing8 where this Court stated “[w]ithout that violation, the
record lacks substantial evidence to support the evidence to support the Board’s
finding [of unprofessional conduct].”9 However, under these facts, this statement
does not apply.
In Gillespie, Appellant Ms. Gillespie was disciplined for failing to report child
abuse in violation of 16 Del. C. Section 903 when she learned, in her personal
capacity, that two young children had been sexually abused but did not report such
abuse to their children or any authority. On appeal, the Court held that 16 Del. C.
Section 903 does not apply to nurses outside of their professional role. As a result,
Ms. Gillespie could not have violated 16 Del. C. Section 903. However, the basis for
the Board’s finding of Ms. Gillespie’s unprofessional conduct was based solely upon
the allegation that she violated 16 Del. C. Section 903. Thus, the Court determined
that the Board should not have disciplined Ms. Gillespie and concluded that, without
8
Gillespie v. Delaware Bd. of Nursing, 2011 WL 6034789 (Del. Super. Ct. Nov.
17, 2011).
9
Id. at *2.
6
16 Del. C. Section 903, “the record lacks substantial evidence to support the Board’s
finding of unprofessional conduct.”10
Here, it appears that the Board determined that Mr. Cooper engaged in
unprofessional conduct for the reasons encapsulated in the Recommendation of the
Hearing Officer: (1) failure to adhere to the routine practice of turning an obese
patient on November 15, 2017, (2) failure to direct the CNA as to how each of them
should position themselves, (3) failed to perform the customary 1-2-3 count to
ensure they moved in synchronicity to safely turn the patient, and (4) failed to ensure
the patient was fully awake and ready for the turn.11 The basis for unprofessional
conduct was not based solely upon the allegation that Mr. Cooper violated 10.4.2.5
or 10.4.2.14.
Next, Mr. Cooper suggests that there is no substantial evidence to support the
Board’s finding that he violated Board Regulation 10.4.1 because: (1) he established
through rebuttal testimony of the CNA at the hearing with the Hearing Officer that
the turning procedure was followed with the proper counting procedure and (2) that
the Board found it was impossible for Mr. Cooper to injure Patient CN while
attempting to turn the patient and causing Patient CN to strike a foley catheter.
10
Id.
11
Appellee’s Answ. Br., Ex. A at p. 21 (Recommendation of the Hearing Officer).
7
The record does not show that the CNA stated that the turning procedure was
followed with the proper counting procedure. In fact, reflected within the Finding of
Facts in the Recommendation of the Hearing Officer, the CNA testified that Mr.
Cooper “did not direct her where to stand, how they would turn [Patient CN], nor
did he conduct the 1-2-3 count as had been customary for him to do in the past.”12
Moreover, the Board’s finding that Mr. Cooper could not injure Patient CN while
attempting to turn the patient and causing Patient CN to strike a foley catheter is
relevant to the Board’s determination that Mr. Cooper did not violate the other two
Board Regulations. It has no relevance as to whether Mr. Cooper violated Board
Regulation 10.4.1.
Last, there is substantial evidence that supports the Board’s conclusion that
Mr. Cooper violated Board Regulation 10.4.1. It is reasonable for the Board to find
that Mr. Cooper committed unprofessional conduct, thereby violating Board
Regulation 10.4.1, for failure to conform to legal and accepted standards in
connection with Mr. Cooper’s failure to competently and safely turn a patient based
on the following findings of the Hearing Officer: (1) Patient CN stated that he was
groggy at the time Mr. Cooper entered his room to apply Z-cream; (2) Patient CN
stated that Mr. Cooper roughly roused him and began turning him without any
advanced notice or warning; (3) Patient CN stated that he cried out in pain and
12
Id. at p. 18.
8
questioned Mr. Cooper as to why Mr. Cooper was being so rough and whether he
had done something to upset Mr. Cooper; (4) Patient CN stated that Mr. Cooper,
instead of responding to his questions, simply walked out of the room; (5) Patient
CN quickly reported Mr. Cooper’s conduct to Cadia management; (6) Patient CN’s
statements were corroborated by the CNA who was present at the time of the
incident; and (7) the Hearing Officer deemed the CNA to be more credible than Mr.
Cooper regarding the incident.
In sum, substantial evidence exists to support the Board’s finding that Mr.
Cooper violated Board Regulation 10.4.1.
B. Mr. Cooper’s Right to Due Process
Mr. Cooper argues that he was denied due process when: (1) false and
conflicting testimony factored into the Hearing Officer’s Recommendation to the
Board and (2) when the Hearing Officer accepted hearsay testimony at the hearing.
Mr. Cooper contends that the CNA falsely testified that a 1-2-3 count did not
occur. It does not appear that the CNA falsely testified. In the written statement
provided to Cadia on the day of the incident, the CNA stated that she provided the
1-2-3 count. At the hearing, the CNA stated that she gave the count when it is
customary for the nurse to do so.13 The record does not show evidence that the CNA
lied about whether a 1-2-3 count occurred. Moreover, the record shows that the
13
Appellee’s Answ. Br., Ex. E at p. 105 (Hearing Transcript Excerpts).
9
Hearing Officer believed the CNA’s statements to be credible and this Court cannot
overturn the credibility determinations the Hearing Officer made.14
Mr. Cooper contends that the Hearing Officer improperly accepted hearsay
testimony and doing so deprived him of his due process rights. Hearsay evidence is
permissible in administrative hearings so long as that evidence is not the sole reason
for the administrative hearing officer’s decision.15
After a review of the record, it appears that very little hearsay evidence was
admitted during the hearing. Most relevant here, the State presented Patient CN’s
statement to the DLTCRP. The Hearing Officer noted, although Patient CN’s
“statement to the DLTCRP is hearsay, it was consistent with what [the CNA] has
repeatedly testified to about the incident, and I find her more credible on the point,
as there was simply no motivation for her to lie.”16 It appears that the Hearing Officer
found that Patient CN’s statement to the DLTCRP further supported his finding of
CNA’s credibility, in light of the conflict in testimony between CNA and Mr.
Cooper, and for his determination that Mr. Cooper violated various Board
Regulations. The CNA testified at the hearing and the Hearing Officer “believed her
14
Sokoloff v. Board of Medical Practice, 2010 WL 5550692, at *5 (Del. Super. Ct.
Aug. 25, 2010) (citing to Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.1965)).
15
Husbands v. Del. Dept. of Education and Del. Professional Standards Board,
2020 WL 1814045, at *5 (Del. Apr. 7, 2020) (citing to Larkin v. Gettier & Assoc.,
1997 WL 717792, at *3 (Del. Super. Ct. Nov. 14, 1997)).
16
Appellee’s Answ. Br., Ex. A at p. 19.
10
testimony that she felt obligated to tell the truth.”17 As such, the Hearing Officer did
not solely rely on Patient CN’s statement for his decision.
C. Abuse of Discretion
First, Mr. Cooper argues, using Delaware Board of Nursing v. Francis,18 that
the Board abused its discretion when it found that he violated Board Regulation
10.4.1 but not in violation of the twenty-nine illustrations of conduct that violates
Board Regulation 10.4.1. However, as Del. Bd. of Nursing v. Francis makes clear,
these illustrations are not an exhaustive list of conduct that violates Board Regulation
10.4.1.19 The Board is not required to find that Mr. Cooper violated one of the
twenty-nine illustrations of unprofessional conduct to find that he violated Board
Regulation 10.4.1.
Second, Mr. Cooper argues that the Board abused its discretion when it relied
“on the notion that that Mr. Cooper being placed on the Adult Abuse Registry
constituted unprofessional conduct… .”20 Mr. Cooper comes to this conclusion
through the following language from the Hearing Officer’s Recommendation to the
Board: “his actions bring ill (sic) on the nursing profession and his name was placed
17
Id.18
Del. Bd. Of Nursing v. Francis, 195 A.3d 467 (Del. Oct. 2, 2018).
19
Id. at p. 469 (“The second part of the rule—Rule 10.4.2—contains a list of
twenty-nine, non-exhaustive illustrations of conduct that violates that general
proscription”) (emphasis added).
20
Appellant’s Op. Br. at p. 32.
11
on the AAR as a result of the abuse he inflicted until January 16, 2021.”21 It does not
appear that the Board concluded that Mr. Cooper constituted unprofessional conduct
via placement on the Adult Abuse Registry.
The Board stated that Mr. Cooper was placed on the Adult Abuse Registry by
DLTCRP due to the Hearing Officer’s finding that Patient CN developed a
hematoma on his leg as a result of Patient CN’s Foley catheter pressing against his
leg when Mr. Cooper turned him over. The Board did not conclude that Mr. Cooper
committed unprofessional conduct by causing Patient CN to develop a hematoma.
In fact, the Board determined that Mr. Cooper could not have caused Patient CN to
develop a hematoma by making physical contact with a foley catheter during the
turn in question.
Third, Mr. Cooper contends that a Brady violation occurred when the State
did not provide to him the “Riddell report” through discovery. The Ridell report is a
report drafted by the Division of Professional Regulation’s (“DPR”) investigator,
Kathleen Ridell (“Ms. Ridell”). Ms. Ridell investigates complaints filed against
professional licenses. Ms. Riddell never met with Mr. Cooper and has never spoken
with him. Ms. Riddell interviewed the CNA and investigated Mr. Cooper’s criminal,
licensing, and adult abuse registry histories.
21
Appellee’s Answ. Br., Ex. A at p. 22.
12
The State contends that: (1) Mr. Cooper never requested discovery; (2) Mr.
Cooper is conflating this administrative matter with a criminal prosecution; (3) Mr.
Cooper had the opportunity to cross-examine Ms. Ridell about anything set forth in
the report; (4) that the State withdrew the report from the proceedings because it
included confidential information that was unnecessary to the hearing; and (5) that
when the hearing officer asked Mr. Cooper if he objected to the Ridell report’s
withdrawal, Mr. Cooper only asked that the date and time Ms. Ridell interviewed
the CNA be read into the record.
Mr. Cooper’s argument fails for many reasons. In Brady v. Maryland,22 the
United States Supreme Court stated that the purpose of requiring production of
evidence favorable to an accused upon request is to avoid an unfair trial to the
accused.23 It appears that Mr. Cooper did not request the materials. But even if he
had, a claim of Brady violation does not apply here because this matter is not
criminal in nature.24 Lending further credence, in Dawson v. State, the Delaware
Supreme Court stated that the starting point for reviewing a claim of a Brady
22
Brady v. Maryland, 373 U.S. 83 (1963).
23
Id. at p. 87 (“We now hold that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment…”).
24
Id. at p. 87 (“Society wins not only when the guilty are convicted but when
criminal trials are fair.”) (emphasis added).
13
violation involves a three-part test to determine whether particular evidence should
have been released to the accused in a criminal case.25 As such, this claim fails.
Fourth, Mr. Cooper argues that the Board did not understand its discretion to
determine that he did not commit a violation of the Board Regulations. Mr. Cooper’s
claim here is without merit. The Board understood its discretion to determine that he
did not commit a violation of the Board Regulations by rejecting the Hearing
Officer’s recommendation that Mr. Cooper violated two Board Regulations.
Last, Mr. Cooper contends that the Board abused its discretion when the
Board’s Order did not provide conclusions of law other than the rejection of two of
the Hearing Officer’s determinations that Mr. Cooper violated two Board
Regulations and that the Board was obligated to do so under 29 Del. C. Section
10161(e)(1)-(2). Mr. Cooper is mistaken here. There are two statutes that the Board
may utilize to hold disciplinary matters: 29 Del. C. Section 8735(v) or 29 Del. C.
Section 10161(e).
Under 29 Del. C. Section 10161(e), the Board may nominate three Board
members to serve on a hearing panel or committee to resolve cases and decide
disciplinary complaints. Under 29 Del. C. Section 8735(v), Division of Professional
Regulation hearing officers may conduct certain disciplinary hearings, like the one
in this matter, instead. Under 29 Del. C. Section 8735(v)(1)(d), the Board “shall
25
Dawson v. State, 673 A.2d 1186, 1193 (Del. Apr. 17, 1996) (emphasis added).
14
make its final decision to affirm or modify the hearing officer’s recommended
conclusions of law and proposed sanctions based upon the written record.”
Here, the Board modified the Hearing Officer’s recommended conclusions of
law and proposed sanctions by rejecting two of the conclusions and reducing the
Hearing Officer’s proposed sanction for violating Board Regulation 10.4.1 to
continuing education requirements and a letter of reprimand. Although the Board
does not explicitly affirm the Hearing Officer’s third conclusion of law, that Mr.
Cooper violated Board Regulation 10.4.1, the Board implicitly did so when it
modified and reduced the proposed sanction for that violation to completing
additional continuing education hours and a letter of reprimand for his conduct in
failing to competently and safely turn a patient on November 15, 2017. This specific
conduct was the charged conduct that underlies the Hearing Officer’s conclusion
that Mr. Cooper violated Board Regulation 10.4.1.26
26
State’s Answ. Br., Ex. A at p. 21. (“In this case, Mr. Cooper’s failure to adhere
to the routine practice of turning an obese patient on November 15, 2017, resulting
in the patient’s injury was a violation of Bd. Rule 10.4.1. Respondent failed to
direct the CNA as to how each of them should position themselves and failed to
perform the customary 1-2-3 count to ensure that they moved in synchronicity to
safely turn the patient. He failed to ensure the patient was fully awake and ready
for the turn and his failures resulted in injury to the patient. His behavior did not
comply with nursing standards and did in fact adversely affect his patient in
violation of Bd. Rule 10.4.1.”).
15
V. CONCLUSION
Therefore, for the reasons stated above, the Board of Nursing’s December 19,
2019 Order is AFFIRMED.
IT IS SO ORDERED.
The Honorable Calvin L. Scott, Jr.
16