Villines v. Division of Aging & Missouri Department of Social Services

722 S.W.2d 939, 1987 Mo. LEXIS 262
CourtSupreme Court of Missouri
DecidedJanuary 13, 1987
DocketNo. 67994
StatusPublished
Cited by4 cases

This text of 722 S.W.2d 939 (Villines v. Division of Aging & Missouri Department of Social Services) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Villines v. Division of Aging & Missouri Department of Social Services, 722 S.W.2d 939, 1987 Mo. LEXIS 262 (Mo. 1987).

Opinion

WELLIVER, Judge.

Appellant, Leona Villines, seeks reversal of a decision of the Missouri Administrative Hearing Commission which affirmed the decision of the Missouri Department of Social Services, Division of Aging revoking appellant’s nursing home license pursuant to § 198.036, RSMo Cum.Supp.1983. The Missouri Court of Appeals, Western District affirmed the revocation. Considering the importance of the issues raised herein, we ordered transfer of this case in order to clarify the law regarding the power of the Department of Social Services to revoke the license of a nursing home operator under the Omnibus Nursing Home Act. [940]*940§§ 198.003-186, RSMo Cum.Supp.1983.1 We reverse the decision of the Administrative Hearing Commission.

I

Appellant, owner, operator and administrator of Carle Manor Nursing Home, began operation of the facility under a temporary license from the Department of Social Services (Department) on December 4, 1982. At the time appellant purchased the home, conditions were such that the Department had begun proceedings to close the facility. While the reports of the Department’s inspection and its reinspection of the facility were not formally introduced into evidence, the record presented indicates that of the approximately 115 violations existing at Carle Manor before appellant acquired the home only four remained uncorrected on the date of the fifty-five day reinspection. As a result of appellant’s degree of compliance with the statutory requirements of the Act, the Department issued her a permanent license to operate the home as an intermediate care facility on July 5, 1983.

In a letter dated August 19, 1983, the Division of Aging (Division) of the Department of Social Services informed appellant that as a result of inspections conducted on July 29 and August 1, 1983, the Division had decided to revoke her license to operate the intermediate care facility in accordance with §§ 198.036.1(1) and 198.036.1(3), RSMo Supp.1982.

The July 26, 1983 incident which prompted the investigation involved an eighty-four-year-old resident of Carle Manor. At approximately 8:30 a.m. on the day of the incident, the resident, a victim of senile dementia, suffered from diahrrea and as a result had a bowel movement, soiled herself, and required cleaning. Nurse’s Aide Crutchfield gave the resident a bath, dressed her in clean clothing, and placed her in bed for a nap. Although the physician’s notes indicated that the resident should be restrained, the aide left her unrestrained and unattended because the resident usually took a nap after a bath. There was some evidence that the resident had trouble sleeping while restrained and that a family member had objected to use of the restraints.

Later that morning, another nursing home aide found the resident naked in the hall near the bathroom soiled from another bowel movement. When Aide Crutchfield took the resident into the bathroom to clean her, she discovered feces in a tub of hot water. Although no one witnessed the incident, the aide’s discovery indicates that the resident wandered into the bathroom, turned on the hot water faucet and sat down in the tub of hot water to try to bathe herself.

As the aide began cleaning the resident, she noticed marks upon the resident’s buttocks and arm prompting her to call the nurse on duty. Licensed Practical Nurse Mary Etta Morris examined the injury and, following appellant’s policy and state regulations for accident treatment, 13 CSR 15-14.042(73) (1984), called the home’s physician, Dr. McKinley. Nurse Morris and Dr. McKinley somewhat differed in their accounts of this conversation. Dr. McKinley did testify that from Nurse Morris’ description of the incident in the telephone conversation, she concluded that the resident’s injury was not serious and told Nurse Morris she would come to the nursing home in the next day or so and if problems arose, to take the resident to an emergency room.

Nurse Morris testified that she applied carbolated vaseline and sterile Pampers to the injury and checked on the resident periodically during the remainder of the day shift. Nurse’s Aide Allen succeeded Nurse Morris on duty at 3 p.m. and cared for the resident throughout the evening. Nurse

[941]*941Morris returned later that night to change the resident’s dressing.

Appellant, a licensed practical nurse, was at the home when the incident occurred. She looked in on the resident throughout the day, and after leaving Carle Manor, telephoned several times to inquire about the resident’s condition. In the telephone conversations, Nurse’s Aide Allen told appellant that after sitting in a chair and eating a full meal, the resident was resting without complaint of discomfort.

At approximately 12:30 a.m. on July 27, 1983, a nursing home employee telephoned appellant to report that he thought the resident’s injury looked bad. Appellant returned to the home and took the resident to Truman Medical Center where the emergency room staff diagnosed the injury as second degree burns to the buttocks, lower back and left shoulder, and one and one-half to second degree bums to the dorsal forearm. The Medical Center staff debrid-ed the area, trimmed the blisters, applied Silvadene cream and sterile dressing, and released the resident. Appellant returned the resident to Carle Manor and remained with her until Nurse Morris arrived for the day shift.

On July 28, 1983, two days after the incident, Dr. McKinley examined the resident at Carle Manor and made a written order instructing the nursing home staff to contact her if the resident’s temperature rose above 100 degrees or to admit the resident to a hospital if the burns appeared pustular. That evening the resident’s temperature reached 101 degrees and the nursing home staff took her to Trinity Lutheran Hospital where Dr. McKinley admitted her for treatment.

In response to a complaint which, as far as we know was of unknown origin, the Division conducted an investigation at Carle Manor. Investigator Charlotte Jennings testified that she interviewed nursing home personnel present on the day of the incident and reviewed the resident’s nursing home records. Three days after the incident, she went to Trinity Luthem Hospital to examine the resident’s injuries and to speak with the resident.

During the investigation an environmental sanitarian from the Division checked the water from the plumbing fixtures accessible to residents. He found the water temperature to be 148 degrees Fahrenheit on August 1, 1983, 142 degrees Fahrenheit on August 16, 1983, and 134 degrees Fahrenheit on August 30, 1983. Regulations require that the water temperature be no more than 120 degrees Fahrenheit. 13 CSR 15-14.031(3)(L)5 (rescinded October 13, 1983 and reenacted as 13 CSR 15-14.-032(22) (1984)). The record indicates that the nursing home maintenance man attempted to lower the water temperature after each measurement and that the excessive temperature was finally effectively reduced after appellant padlocked the door to the hot water heater. The sanitarian testified that the temperature reading on August 31, 1983 was 117 degrees Fahrenheit, three degrees below the regulatory requirement. At the administrative hearing, the parties stipulated that on September 30, 1983, the water temperature complied with the 120 degree Fahrenheit requirement of 13 CSR 15-14.031(3)(L)5 (rescinded October 13, 1983 and reenacted as 13 CSR 15-14.032(22) (1984)).

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722 S.W.2d 939, 1987 Mo. LEXIS 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/villines-v-division-of-aging-missouri-department-of-social-services-mo-1987.