DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Tammy Hedge, RPN Chairperson Sarah Corkey, RN Member Barbara Titley, RPN Member Margaret Tuomi Public Member Cathy Egerton Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) REBECCA DURCAN for ) College of Nurses of Ontario
- and - ) [MEMBER, RN] ) BETH SYMES for ) [The Member] ) LUISA RITACCA and JOHANNA ) BRADEN ) Independent Legal Counsel ) Heard: August 26-28, 2013; ) January 14-16, 2014; March 11, 2014
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee on August 26-28, 2013; January 14-16, 2013; and March 11, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.
The Allegations
The allegations against [the Member] as stated in the Notice of Hearing dated May 30, 2013, are as follows.
IT IS ALLEGED THAT:
- You have committed an act or acts of professional misconduct as provided by paragraph 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.1 of Ontario Regulation 799/93 in that, on or about March 11, 2012, while working as a Registered Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that you elbowed [the Client] in the face.
- You have committed an act or acts of professional misconduct as provided by paragraph 51(1) (c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.7 of Ontario Regulation 799/93 in that, on or about March 11, 2012, while working as a Registered Nurse at [the Facility], you abused [the Client] verbally, physically or emotionally by elbowing him in the face.
- You have committed an act or acts of professional misconduct as provided by paragraph 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93 in that, on or about March 11, 2012, while working as a Registered Nurse at [the Facility], you engaged in conduct relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that you elbowed [the Client] in the face.
Member’s Plea
The Member denied the allegations set out in the Notice of Hearing
Overview
The Member is a Registered Nurse working in the float pool at [the Facility]. On March 11, 2012, the Member was working on the Transitional Care Unit, as the “AR”, or “added responsibility” nurse. She had worked on this unit the previous day, and on this day was working alongside a Personal Support Worker, [PSW A]. Among the [clients] assigned to the Member’s care was [the Client], an elderly gentleman who had suffered from a stroke, among other ailments, and was known to be aggressive and combative.
It is alleged by [PSW A] that after transferring [the Client] to his bed during peri care, the Member placed her elbow on [the Client]’s cheek and struck her hand, causing her elbow to slam down on [the Client]’s face. At the conclusion of care, the Member allegedly made the comment, “That didn’t hurt” or something to that effect. [PSW A] reported the incident to the oncoming nurse at the change of shift but she refused to do anything. No incident report was filed, and no investigation commenced until several days later when a bruise was noted on [the Client]’s face.
The issues for this panel to decide were as follows:
Did the Member elbow [the Client] in the face?
If so, was this a failure to meet the standards of practice of the profession?
If so, did the Member abuse [the Client]?
Would the Member’s conduct be reasonably be regarded by members of the profession to be disgraceful, dishonourable, and/or unprofessional?
After hearing all the evidence, the panel made no findings on allegations 1, 2, and 3 as set out in the Notice of Hearing. All allegations against the Member were dismissed.
The Evidence
The panel heard testimony from eight witnesses, including the Member, and was provided with 20 exhibits to consider. The key evidence on which the panel relied was as follows.
[PSW A]
The first witness to testify was [PSW A]. [PSW A] is a PSW at [the Facility]. She was working with the Member on the day the alleged incident occurred. After dinner, one evening, [PSW A] began to get [the Client] ready for his evening care. She testified that she hooked him partly up to the lift, but he was combative, and so she went out to the nurse’s station to get the Member, and asked her for help.
The transfer with the mechanical lift was somewhat difficult as [the Client] was still combative. The Member was guiding [the Client] in the lift and [PSW A] had the controls. It was [PSW A]’s evidence that the Member elbowed [the Client] in the face during peri care. [PSW A] was adamant that this could not be an accident due to the amount of force used. The witness finished the care. She alleges that when the Member elbowed [the Client] in the face, the Member made a comment to the effect of, “It didn’t hurt”. [PSW A] said that at that point she noted a red mark on [the Client]’s cheek. She stated she was not comfortable talking to the Member about what happened, and that no incident report was made at that time. After the Member’s shift ended, [PSW A] went to the oncoming RN, [ ], and advised her of what happened. They went to the room together to view [the Client]’s injury. [PSW A] testified that [the RN] then said, “We aren’t going to write this up.”
[PSW A] testified that PSWs do not do incident reports, and that their access to the computer charting system is limited to what is known as “tick sheets” [ ]. The occurrence form was eventually completed by the Nurse Manager, [ ].
During cross-examination, it came out that the day before the alleged incident, [PSW A] called the floor and spoke to the Member. [PSW A] said that she told the Member she was going to be late as she was having a family emergency. The Member offered to replace her but [PSW A] was insistent that she would come to work, just a little later than usual. Later in the shift, the Member found a replacement and sent [PSW A] home early, as [PSW A] had spent the majority of the day on the phone and worrying about the family issue. It is [PSW A]’s testimony that she was not upset about being sent home early.
The panel had some concerns with [PSW A]’s testimony and credibility. While giving her evidence, [PSW A] appeared defensive. The witness seemed to remember some events very clearly, such as who was standing where and what was said, but couldn’t clearly recall other details, such as if [the Client] had struck her prior to the alleged incident. Nor could she recall other important details such as which elbow [ ] the Member allegedly used to strike [the Client]. In many instances [PSW A]’s evidence was contradictory to the Member’s evidence and did not accord with what would reasonably make sense. For example:
[PSW A] claims there was no conversation or speaking to [the Client] during care from either the Member or [PSW A] until after the care was completed. The Member says she did speak to [the Client] throughout.
[The Client] was allegedly on his back, with the bed at waist height. The Member is short in stature, and there would seem to be no physical possibility of the Member deliberately striking [the Client] on the eye with her elbow.
[PSW A] claimed she wasn’t upset about the Member sending her home on March 10th, to deal with her family issue. This was contradicted by the Member. [PSW A] said she wasn’t upset about the loss of wages from her early dismissal, when in fact earlier in the day, [PSW A] had stated to the Member that she needed to work because she needed the money.
[PSW A] had testified initially that [the Client] had struck her, but later stated she couldn’t remember if [the Client] had ever hit her.
[PSW A] testified in a manner in which she appeared dramatic, appeared evasive, angry and stand-offish during both examination-in-chief and cross-examination, which the panel found to be of concern. The panel finds that [PSW A] is not a credible or reliable witness.
[PSW B]
[PSW B] has been a PSW for 36 years, and has been at [the Facility] for about five years. [PSW B] described the collegiality of the unit as good “some of the time.” It was her testimony that some of the registered staff did not respect the role of the PSW.
[PSW B] testified that on March 11, 2012, she was working [ ] on a different team than the Member and [PSW A], on the 3:00 pm to 11:00 pm shift. [PSW B] gave evidence that at about 6:00 p.m., [PSW A] came to the desk and asked [PSW B] if she could talk to her for a moment. [PSW A] told [PSW B] that [the Member] had hit [the Client], and demonstrated that the Member had placed her elbow over the cheek of [the Client] and slammed her hand into her closed fist. [PSW B] suggested that [PSW A] speak with the Member and, failing that, speak to the oncoming RN.
On cross-examination, [PSW B] stated that she had worked with the Member previously, and that she had never observed the Member treat her clients roughly. The witness did not have the opportunity to observe the alleged incident, as she was not present in the room at the time. On her next shift, [PSW B] recalled seeing a dark purple bruise on [the Client]’s face, but was unclear on exactly what day her next shift was on.
[The NP]
[The NP] is a Nurse Practitioner who practises in [the town]. In March of 2012, she was an RN on the Transitional Care Unit at [the Facility]. [The NP] testified that she recalled seeing a bruise on the cheek of [the Client] on March 15, 2012. She asked [the Client] what had happened and he stated that he could not recall. Upon speaking with other staff, who was unaware of an injury that would have caused a bruise, [the NP] contacted [ ], the Nurse Manager. [The NP]’s entry in the chart was the first notation of a bruise on [the Client]’s face.
[The RN]
[The RN] is a retired RN who at the time of the incident had worked at [the Facility] for 32 years. [The RN] was scheduled to work the night shift on March 11, 2012. It was [the RN]’s testimony that at change of shift that evening, the Member had advised her of [the Client]’s behaviour, and that [the Client]’s son was in the hall.
That night, [PSW A] approached [the RN] and asked if they could speak. They went to [the Client]’s room, where [PSW A] asked [the RN] to look at [the Client]’s face. As [the RN] moved towards the client’s bed, [PSW A] stopped her, as she didn’t want to draw attention to it. [The RN] asked who did it, and [PSW A] replied “[the Member]”. They then left the room.
[The RN] gave conflicting evidence to that of [PSW A]’s as follows:
[The RN] says the lights were dim in the room, while [PSW A] said the lights were on.
[The RN] did not see a mark on [the Client]’s right cheek.
[The RN] says that after [PSW A] told her that “[the Member] did it”, she opened the door and walked out without saying anything else.
[The RN] says [PSW A] did not approach her again that evening. It was [PSW A]’s evidence that she approached [the RN] again that evening and [the RN] threw her hands up in the air in exasperation.
The witness stated that if she had seen the mark, she would have written up the incident report that evening. [The RN] checked the client’s face with a flashlight various times through the night and never saw a mark. The panel found the testimony of [the RN] to be credible. She has no interest in the outcome of the hearing, and the panel found that her story, while not entirely convincing, made sense.
[The Nurse Manager]
[The Nurse Manager] at [the Facility] testified that it was the Unit Assistant who advised her of the incident with [the Client]. [The Nurse Manager] then contacted [PSW A] to obtain her story. [The Nurse Manager] did not see the client until March 15th, when she noted a bruise under his right eye, light purple in color on the inside and yellow and green on the outside. [The Nurse Manager] then spoke to [the NP], who documented the bruise. [The Nurse Manager] admitted that at the time she didn’t think of writing an incident report.
[The Member]
On the morning of March 10, 2012, the Member received a telephone call from [PSW A], who said she was going to be late coming into work, due to a family emergency. The Member stated that she suggested to [PSW A] that she stay home, but that [PSW A] responded, “No, I am coming in, I need the money”. The Member recalled that [PSW A] did arrive, and for the rest of the shift she was distracted and on the telephone. The Member testified that she was concerned for [PSW A] because her eyes were puffy and red. The Member asked [PSW A] if she was okay, and [PSW A] answered back, “Not really.” The Member offered again to replace [PSW A] and have her go home, and again [PSW A] declined. At that point, as the nurse in charge, the Member stated that she decided to find a replacement for [PSW A], and sent her home.
The Member testified that on March 11, 2012, [PSW A] came to the Member after the dinner hour to ask for assistance. [PSW A] was flushed and speaking loudly and quickly. The Member testified that [PSW A] stated that [the Client] had grabbed her, twisted her arm, and punched her, and that she couldn’t do his care on her own. The Member asked for five minutes to finish her charting. It was the Member’s recollection that [PSW A] went back into [the Client]’s room. The Member followed five minutes later to find [PSW A] standing on [the Client]’s right side. [The Client] was yelling and calling [PSW A] names, and [PSW A] was telling him to be quiet. [The Client] was partially hooked up to the lift. The transfer was completed and [the Client] was safely on the bed, although combative during his transfer, kicking and attempting to strike. The Member testified that she spoke to [the Client] during the care, telling him that they were almost done. The Member testified that she did not intentionally nor accidentally strike [the Client] on the cheek during his care. The Member denies saying, “That didn’t hurt” to [the Client], but did confirm that she spoke to [the Client] throughout the process of providing care to him.
The panel found the Member to be visibly upset and detached at times throughout the hearing; however, her testimony was clear and convincing. She was cooperative and not defensive under cross-examination. The description the Member gave of [PSW A]’s demeanour when she was sent home matched the observation that the panel made of [PSW A]’s demeanour during her testimony.
The panel noted a discrepancy in the Member’s testimony. During cross-examination the Member testified that she was in the break room and overheard a conversation regarding [PSW A’s family]. The Member does not remember making any inappropriate comments about [PSW A] herself, but stated that she never stood up for [PSW A] either. The Member appeared genuinely embarrassed about the inappropriate comment that was attributed to her. According to the College, in a prior statement the Member admitted to making the inappropriate comment about [PSW A]. The Member testified that she was misunderstood, and that she regretted her involvement in the conversation in that she didn’t defend [PSW A] when she should have.
Overall, where the testimony of the Member differed from the testimony of [PSW A], the panel preferred the testimony of the Member. Although she was emotional, she gave clear and convincing evidence, and the events as described by her were more probable.
Expert Evidence
The expert evidence led in this case included the testimony from [Dr. A], who was tendered and accepted as an expert witness regarding the sequencing of bruising in elderly [clients]. [Dr. A] was provided with [the Client]’s chart, including his medication profile, the nurse’s notes and the occurrence form. [Dr. A] was not given any photographs of the bruising.
[Dr. A] testified that everybody bruises, but certain factors can affect how easily or how severe bruising can occur, one of which is the use of anticoagulants. [The Client] was on a small dose of aspirin, which is an anticoagulant. As a person ages, their tissue loses elasticity and subcutaneous fat. This can cause one to bruise more easily, and can increase the amount of swelling in a bruise as there is more leaking of fluids.
[Dr. A] stated that given the description of the alleged strike to [the Client]’s face, which is that the Member slammed her fist which caused her to slam her elbow into [the Client]’s face, [ ] he would expect to see a significant amount of swelling, more bleeding, as basically it would be a crush injury. This would result in swelling within eight to twelve hours. [Dr. A] concluded that in her opinion, the faint pink mark as noted on [the Client]’s face would more likely be caused by accidental contact or sustained pressure over the bony prominence of his cheek. It would not be likely that the mark on [the Client]’s face would be caused by the description of the alleged event. There would be more swelling than what was noted.
[Dr. A] stated that one can not reliably predict the time that a bruise occurred; the only reliable fact is that after about eighteen hours, the bruise yellows due to bile.
Final Submissions
College counsel submitted that this case is about credibility, and turns on the assessment of [PSW A] and the Member, the only two witnesses in the room. When determining credibility, counsel urged the panel to rely on their common sense and to ask themselves why [PSW A] would make this up. Why would the witness subject herself to the process of the criminal trial followed by the tribunal process? [PSW A] reported the event right away, to the oncoming registered staff, as she was uncomfortable approaching the Member. In light of the evidence about the atmosphere on [the Unit], this made sense.
College counsel submitted that [PSW A] gave clear, cogent and convincing evidence. It is not easy to testify. More than two years after the event, [PSW A] clearly admitted when she was unable to recall some events or statements. Perfect recall years after the fact cannot be expected.
The College further submitted that the Member was not credible as she was inconsistent during her testimony. As one example, College counsel took the panel to [ ] the entry made by the Member in the nurses’ notes. The Member testified she made the entry because it captured the story, but the entry made no comment that [the Client] hit, punched or kicked out at the staff (in particular [PSW A]). This was not included in the note because, says College counsel, it didn’t happen. [PSW A] never told the Member that [the Client] had attacked her. This was added to the Member’s story later. The Member must have known that [PSW A], as a PSW, would have no opportunity to chart what happened. So if [PSW A] had really reported that [the Client] had struck her, why wouldn’t the Member have reported it? College counsel submitted that the chart entry the Member made was done proactively to deflect any statement that [PSW A] might make.
Defence counsel submitted that the allegation is that the Member deliberately lifted her elbow and brought it down on [the Client]’s face. [PSW A]’s evidence is that this occurred while [the Client] was on his bed, on his back. [PSW A] gave evidence that the mark was on [the Client]’s face immediately. Defence counsel pointed out that the Member is not a tall woman, and given [PSW A]’s description of the event, it would be impossible for the Member to hit [the Client] as alleged.
Counsel for the defence submitted that [the Client] was known to be combative, and referred to the [client] care plan that says two people are to be present for all transfers. This transfer on this day started with only one person, [PSW A].
Defence counsel agreed with the College that the real issue in this case is credibility. There were only two people in the room who can speak to the events that transpired. The position of the Member is the exact opposite of the College’s position. The Member had cared for [the Client] on the previous day and on the day in question without incident until 1800 hours. The Member had charted [the Client]’s behaviour. She was a credible witness who gave consistent, logical testimony. In contrast, [PSW A] was not a reliable witness. As just one example, [PSW A] stated that she didn’t see [the Client]’s son in the hallway. However the Member had in fact charted that she spoke to [the Client]’s son.
Decision
The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.
Having considered the evidence and the onus and standard of proof, the panel is unable to find that the Member has committed acts of professional misconduct as alleged in paragraph 1, 2, and 3 of the Notice of Hearing. Accordingly, the panel dismisses allegations 1, 2, and 3 against the Member.
Reasons for Decision
The panel carefully considered the evidence and witness testimony as presented by both the College and the Member. The panel relied heavily on the factors listed in the case of Pitts v. Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), 52 O.R. (2d) 302 (H.C.J.) to aid in assessing the credibility of the Member and [PSW A].
The panel preferred the testimony of the Member, based on the balance of probabilities. The panel finds that the injury to the [client]’s cheek could have been caused in a multitude of ways due to the fact that the [client] was known to be combative and was documented to have been combative that day. The panel agreed with Defence counsel that physically it would be nearly impossible for the Member to strike the [client] in the manner alleged. [PSW A] appeared to the panel to have something personal against the Member, whatever the reason. It may be personal, related to comments allegedly made in the break room, or the fact that the Member sent [PSW A] home early on the previous shift, or some other reason altogether. When the evidence is examined as a whole, it is not sufficiently clear, cogent and convincing for the panel to find that the Member elbowed [the Client] in the face.
I, Tammy Hedge, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:
Tammy Hedge, Chairperson Date
Panel Members:
Sarah Corkey, RN
Barbara Titley, RPN
Margaret Tuomi, Public Member
Cathy Egerton, Public Member