Sheena Mortimer v. West Virginia Dept. of Health and Human Resources

Citation: Not availableDocket: 16-0598

Court: West Virginia Supreme Court; January 4, 2018; West Virginia; State Supreme Court

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Sheena Mortimer appeals the May 20, 2016, order from the Circuit Court of Ohio County, which affirmed an administrative law judge's (ALJ) finding that she committed abuse and neglect, leading to her placement on the Nurse Aide Abuse and Neglect Registry by the West Virginia Department of Health and Human Resources (DHHR). Mortimer, a certified nursing assistant employed at Guardian Elder Care, was alleged to have refused care for a 79-year-old resident, D.H., on March 10, 2015. D.H. required assistance with daily living activities and was found in a soiled condition with her call light out of reach. Following the incident, Mortimer was suspended and subsequently expressed a desire to leave her employment during a counseling session. An investigation by the Office of Health Facility Licensure and Certification (OHFLAC) substantiated the allegations, leading to a notification of intent to place her on the Registry. An administrative hearing on November 18, 2015, confirmed that Mortimer had refused to enter D.H.'s room due to a perceived problem with the resident. The Supreme Court of Appeals of West Virginia found no substantial legal questions or prejudicial errors in the lower court's order, resulting in the affirmation of the decision under Rule 21 of the Rules of Appellate Procedure.

LPN Veronica Blythe reported an incident involving petitioner, who expressed a disregard for resident D.H. by stating she could "f. g rot" in her room. Upon entering D.H.’s room, Blythe found her in a distressing state—uncovered, with her adult brief undone and fecal matter present, while the privacy curtain was open. D.H. was unable to reach her call light, which petitioner had moved, and expressed confusion as to why petitioner was unkind to her. Blythe's observations were corroborated by D.H.’s roommate, who noted that petitioner instructed her not to use the call light for D.H. Testimony indicated that facility protocols required checking incontinent residents regularly to prevent health risks. The Administrative Law Judge (ALJ) concluded that petitioner’s actions constituted neglect and psychological abuse under the Nurse Aide Abuse Registry Rules, affirming the Department of Health and Human Resources (DHHR) finding of abuse. The ALJ upheld the decision to place petitioner’s name on the Registry, which can only be reversed by court order or upon successful petition for removal. Petitioner appealed to the Circuit Court of Ohio County, which denied the appeal and upheld the Registry placement. The appellate review is governed by specific statutory standards, allowing deference to the ALJ’s factual findings while applying de novo review to legal conclusions.

Petitioner claims the circuit court improperly upheld the ALJ’s findings that she committed psychological and emotional abuse and neglect against D.H. She argues that the ALJ's factual determinations—regarding her use of profanity, refusal to assist D.H., and placement of D.H.’s call light out of reach—were erroneous. Petitioner denies making any profane comments toward D.H. and asserts that any prior incidents of placing the call light out of reach were not relevant to the incident in question. Furthermore, she contends the ALJ failed to consider testimony indicating she was advised not to enter D.H.’s room alone due to D.H.’s behavior.

Despite these claims, evidence indicated that on March 10, 2015, petitioner, as D.H.'s assigned CNA, refused to assist D.H. when she was in need of toileting help. Witnesses testified that petitioner made loud derogatory comments about D.H. and failed to provide necessary care, resulting in D.H. being found in an unhygienic state. The ALJ's findings were supported by testimonies that D.H.’s call light was placed out of reach and that petitioner instructed a roommate not to call for assistance for D.H. These actions were deemed to constitute neglect and emotional abuse as defined by the Registry Rules. The court confirmed that the ALJ's conclusions were legally sound and affirmed the findings. The ruling was issued on January 5, 2018, with concurrence from multiple justices.