Petitioner, a certified nurse's aide at a geriatric facility, was observed on a surveillance video force-feeding a patient in a rushed and rough manner. Petitioner was charged by the New York State Department of Health [DOH] with patient abuse and neglect as defined under 10 NYCRR 81.1(a) and (c), respectively, in violation of Public Health Law §2803-d.
Then Commissioner Zucker adopted the Administrative Law Judge's findings and recommendations and sustained the charges of patient abuse and neglect. Petitioner commenced this CPLR article 78 proceeding to challenge the Commissioner's determination.
The Appellate Division opined that contrary to the Petitioner's contention, the ALJ providently exercised her discretion in admitting into evidence the surveillance video footage, citing Walker v Zucker, 146 AD3d 789. Further, said the court, substantial evidence in the record supports the Commissioner's determination that the charges were substantiated by a fair preponderance of the evidence presented at the hearing.
The decision states "DOH's evidence showed the petitioner feeding the patient heaping spoonfuls of food at a rapid pace and in an extremely rough manner, not allowing the patient sufficient time to swallow. Even the [Petitioner], herself, testified that she fed the patient at a rapid pace and that she should have been "more gentle."
The Appellate Division confirmed the Commissioner's determination, denied the petition, and dismissed the proceeding on the merits.
Click HERE to access the Appellate Division's decision posted on the Internet.