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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-APR-2022
07:52 AM
Dkt. 64 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
LIFE CARE CENTER OF HILO, Appellant-Appellant,
v.
DEPARTMENT OF HUMAN SERVICES, Appellee-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 16-1-0413)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
In this secondary appeal, Appellant-Appellant Life Care
Center of Hilo (Life Care) appeals from the July 19, 2017 "Court
Order Affirming State of Hawai#i, Department of Human Services
Decision and Order" (Order Affirming D&O) and the August 25, 2017
"Judgment" both entered by the Circuit Court of the Third Circuit
(Circuit Court) in favor of Appellee-Appellee State of Hawai#i,
Department of Human Services (DHS) and against Life Care.1
In the proceedings below, a DHS investigation
determined that Life Care committed "caregiver neglect" of an 82-
year old male resident (Client A) arising from a left buttock
wound that was observed by Client A's niece and reported to the
Life Care Director of Nursing, Valerie Nishi (Director Nishi), on
December 1, 2015. After an administrative hearing, a hearing
officer at DHS issued a Notice of Administrative Hearing Decision
(D&O) on November 1, 2016, which concluded that DHS correctly
1
The Honorable Henry T. Nakamoto presided.
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confirmed caregiver neglect by Life Care as defined in Hawaii
Revised Statutes (HRS) § 346-222 (2015).2
On appeal, Life Care contends the Circuit Court erred
in entering the Order Affirming D&O and Judgment because: (1) the
Adult Protective and Community Services Branch of DHS (APS)
failed to obtain a medical evaluation or consult with a physician
as part of its investigation; (2) the Hearing Officer adopted
APS's unsupported medical opinions or reached its own medical
opinions that refuted unrebutted expert testimony; and (3) the
Hearing Officer's finding caregiver neglect by Life Care is
clearly erroneous and an abuse of discretion.
Upon careful review of the record and the briefs
submitted, and having given due consideration to the arguments
advanced and the issues raised, we resolve Life Care's points of
error and affirm.
(1) Life Care contends that APS failed to obtain a
medical evaluation or consult with a physician as part of its
investigation pursuant to Hawaii Administrative Rules (HAR)
§§ 17-1421-2 (2009) and 17-1421-9 (2009),3 and thus exceeded
2
HRS § 346-222 provides, in pertinent part:
"Caregiver neglect" means the failure of a caregiver to
exercise that degree of care for a vulnerable adult that a
reasonable person with the responsibility of a caregiver
would exercise within the scope of the caregiver's assumed,
legal or contractual duties, including but not limited to
the failure to:
. . .
(4) Provide, in a timely manner, necessary health care,
access to health care, prescribed medication, psychological
care, physical care, or supervision[.]
3
HAR § 17-1421-2 provides in relevant part: "'Investigation' means the
professional and systematic gathering and evaluation of information about the
vulnerable adult for the purpose of making decisions regarding confirmation of
abuse, protection of the vulnerable adult, and the provision of services for
the vulnerable adult."
HAR § 17-1421-9 provides, in relevant part:
(a) An investigation shall include but not be limited to . .
.
(2) Collateral contacts as needed with others such as . . .
professionals who may have information about the vulnerable
(continued...)
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statutory authority in finding caregiver neglect.4
Here, APS investigated who at Life Care "physically saw
[Client A's] buttock wound, who was treating it, and why there
was no incident report, documentation, and notification of the
physician until the niece brought it to the staff's attention."
Accordingly, DHS APS Specialist, Laron T. Kageyama (APSS
Kageyama) interviewed those who had daily contact with Client
A, or "professionals who may have information about the
vulnerable adult relevant to the investigation," pursuant to HAR
§ 17-1421-9(a)(2), which consisted of eighteen Life Care
registered nurses (RN), licensed practical nurses (LPN), and
certified nurse assistants (CNA).
Life Care appears to argue that under the plain
language of HAR § 17-1421-9(b), "shall" requires that APS arrange
for medical evaluations in their investigations. See HAR § 17-
1421-9(b) ("The department shall arrange for appropriate
evaluations to be conducted as necessary to complete the
assessment, including but not limited to psychological, medical,
or other evaluations in accordance with departmental
procedures.") However, Life Care's reading of the rule would
remove the clear discretion afforded to DHS under HAR § 17-1421-9
to conduct appropriate evaluations "as necessary". See Coon v.
City & Cty. of Honolulu, 98 Hawai#i 233, 250, 47 P.3d 348, 365
(2002) (rules of statutory construction require rejection of an
interpretation that renders any part of the statutory language a
3
(...continued)
adult relevant to the investigation[.]
. . . .
(b) The department shall arrange for appropriate evaluations
to be conducted as necessary to complete the assessment,
including but not limited to psychological, medical, or
other evaluations in accordance with departmental
procedures.
4
"Upon receiving a report that abuse of a vulnerable adult has
occurred or is in danger of occurring if immediate action is not taken, the
department shall cause an investigation to be commenced in accordance with
this part as the department deems appropriate." HRS § 346-227 (2015).
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nullity). Thus, we decline to read HAR § 17-1421-9(b) to require
DHS to arrange for evaluations in this case.5
Moreover, the Hearing Officer found caregiver neglect
because Life Care failed to provide supervision of Client A's
care. See HRS § 346-222. Through his investigation, APSS
Kageyama determined, inter alia, that Life Care failed to provide
healthcare in a timely manner because numerous nurses failed to
assess, document, complete an incident report, or contact the
physician, that Life Care failed to protect Client A from health
and safety hazards by not completing skin assessments thoroughly
and in a timely manner, and the RN assigned to the task of
completing "non-pressure skin condition record" documentation
said that she was not aware the assessment was supposed to be
done weekly. Life Care's impairment procedures require that when
a CNA notices a new skin impairment, the CNA is to report to the
charge nurse, who assesses the wound. The charge nurse then
reports to the unit manager or the nurse supervisor. For a new
skin impairment, an incident report is completed, which includes
steps on notifying the resident's family and the physician. Life
Care also maintains a communication book that documents
information from different shifts. Life Care nursing protocol
for wound care is to measure the wound, document the exact
location of the wound, assess it, complete an incident report,
contact the physician, contact the family, and monitor the wound.
The Hearing Officer concluded that documentation and
supervision of Client A's care was critical given Client A is a
5
In its reply brief, Life Care relies on Dep't of Human Servs. v.
Nuuanu Hale, No. 27975, 2008 WL 4949917 (Haw. App. Nov. 19, 2008) (Mem. Op.)
as persuasive because the hearing officer relied on evidence obtained from the
client's doctors and this court affirmed the hearing officer's finding that
the lack of detailed documentation of specific steps taken did not warrant a
finding of improper care. Life Care's reliance on Nuuanu Hale is misplaced.
In Nuuanu Hale, we held the circuit court erred in reversing the hearing
officer's decision because, inter alia, there was substantial evidence to
support the hearing officer's decision, an agency's decision carries a
presumption of validity, and we would not pass on issues dependent on witness
credibility and the weight of conflicting evidence, which are the province of
the hearing officer. Id. at *13. Here, there was substantial evidence to
support the Hearing Officer's determination, and the Hearing Officer had to
assess conflicting testimony and made credibility determinations to which we
give deference.
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vulnerable adult who is unable to communicate very well and
"documentation of [Client A's] wounds and the progress of [Client
A's] wounds is critical to insure that all the employees of [Life
Care] would be aware of CLIENT A's condition and that a doctor
could be informed and properly treat and monitor the situation."
Furthermore, the Hearing Officer noted that: "Because the wound
to CLIENT A's left buttock was never assessed or documented,
[Life Care] could not properly care for CLIENT A. . . . The fact
that when a nurse did see the wound she would put Sensi-care
cream on it does not equal the proper degree of care of CLIENT
A." The Hearing Officer also found the lack of assessing and
documenting the wound was not harmless error, stating:
[a]lthough Sensi-care cream is the primary treatment for
CLIENT A's wounds, after [Life Care physician, R. Gary
Johnson, M.D. (Dr. Johnson)] was made aware of CLIENT A's
condition, he also prescribed morphine, an air mattress,
masalt packing, and recommended a consultation with a wound
specialist. Because there is a lack of documentation by
[Life Care] as to the progress of the wound, it is
impossible to determine whether these treatments could have,
or would have, been administered earlier.
We conclude the Circuit Court did not err in the Order
Affirming D&O that the testimony of the nurses at the hearing was
sufficient in this case because "the use of a physician to
evaluate and determine the supervision was not required in this
situation where the documentation was so lacking, a reasonable
person with responsibility of a caregiver can make this
determination." APS's decision not to obtain a medical
evaluation or consult with a physician was not in excess of its
statutory authority or jurisdiction.
(2) Life Care contends that the Hearing Officer either
adopted APS's unsupported medical opinions or made its own
medical opinions without expert testimony despite unrebutted
medical expert testimony by Dr. Johnson and Patricia L.
Blanchette, M.D. (Dr. Blanchette).
Life Care argues that the expert testimony of
physicians was required here because such testimony is required
in medical malpractice claims to establish the degree of care
required of medical professionals. However, this is not a
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medical malpractice case, thus, a physician consult or medical
evaluation was unnecessary. See Kaho#ohanohano v. Dep't of Human
Servs., State of Haw., 117 Hawai#i 262, 296, 178 P.3d 538, 572
(2008) (noting in medical malpractice actions expert opinion is
generally required to determine the "degree of skill, knowledge,
and experience required of the physician, and the breach of the
medical standard of care." (emphases added) (quoting Exotics
Hawaii-Kona, Inc. v. E.I. Du Pont de Nemours & Co., 116 Hawai#i
277, 300, 172 P.3d 1021, 1044 (2007)).
Under the circumstances in this case, establishing the
appropriate standard of nursing care was within Director Nishi's
expertise. Director Nishi testified that as director of nursing
at Life Care, her overall responsibilities were "[t]o ensure that
the nurses are doing their jobs, following [Life Care] policies
and procedures, and caring for [Life Care's] residents."
Director Nishi testified that documentation is important and a
part of the care that is provided to the patient. Director Nishi
also testified she had to take numerous corrective actions by
counseling several of the nurses and aides involved in this case
about the process of assessing, documenting, and reporting
changes in skin condition, told the nurses that documentation is
very important, and told one RN to never assume that the next
person knows about a client's wound.
Here, there was no documentation of the inception of
Client A's left buttock wound or when it was first noticed on
November 26, 2015. According to the testimony at the
administrative hearing on August 18, 2016, by DHS RN Lori Tsuruda
(RN Tsuruda) and Director Nishi, Life Care nurses and assistants
did not assess, measure, or document the progression of Client
A's left buttock wound; it was a wound that occurred where, just
over one month prior, there was intact skin; and upon its initial
discovery the wound should have been assessed and documented
because it is paramount to nursing care.
Finally, "courts decline to consider the weight of the
evidence to ascertain whether it weighs in favor of the
administrative findings, or to review the agency's findings of
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fact by passing upon the credibility of witnesses or conflicts in
testimony[.]" In re Hawaiian Elec. Co., 81 Hawai#i 459, 465, 918
P.2d 561, 567 (1996). Although Dr. Blanchette testified that the
nurses were giving good care, the Hearing Officer found the
testimony to be unpersuasive because "without the proper
documentation, Dr. Blanchette is at a disadvantage as to knowing
CLIENT A's condition" and "it is unclear what Dr. Johnson would
have prescribed because we do not know what Dr. Johnson would
have seen had he examined the left buttock wound." Instead, the
Hearing Officer found the testimony by Director Nishi and RN
Tsuruda to be "persuasive as to the duties of [Life Care] as a
caregiver which included the importance of assessing the wound,
properly documenting it as to its location and size, and
informing the doctor of the wound and that those duties are part
of the degree of care of CLIENT A." Therefore, the Hearing
Officer was not obligated to adopt the testimony of the
physicians, where the issue was caregiver neglect based on
failure to provide timely and necessary supervision, i.e.,
failure of nursing staff to document Client A's wound. Moreover,
given that the Hearing Officer made credibility determinations
that we must defer to, we conclude the Circuit Court did not
erroneously affirm the APS's finding of caregiver neglect.
As for Life Care's contention that less than optimal
charting alone does not constitute caregiver neglect where
physicians testified the nurses were providing the correct
treatment, i.e., the Sensi-Care, a finding of caregiver neglect
is supported when there is substantial evidence that Life Care
failed "to provide, in a timely manner, necessary health care,
access to health care, prescribed medication, psychological care,
physical care, or supervision." HRS § 346-222 (emphasis added).
Director Nishi's testimony established that the
expected care by Life Care nurses to assess, measure, and
document all wounds was not done for Client A prior to December
1, 2015. Further, despite Life Care's argument that before
December 1, 2015, the left buttock wound was not in an aggravated
condition or that APS ignored Dr. Johnson's testimony that the
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seizure exacerbated the wound, APSS Kageyamas' reports show that
the wound was getting worse prior to December 1, 2015.
Dr. Johnson testified that if prior to December 1,
2015, the wound looked like it did when he learned of it, then
the care provided by Life Care nurses was not appropriate and he
would have ordered morphine for wound management comfort, not
just Sensi-Care. Because Dr. Johnson did not see Client A's left
buttock wound prior to December 1, 2015, and without proper
assessment and documentation of the wound from the time it was
first noticed approximately five days earlier, the Hearing
Officer did not err in concluding "we cannot definitively find
what care would have or should have been prescribed before
December 1, 2015[.]" Additionally, RN Tsuruda testified that
there was absolutely no documentation of how the wound was
responding to the Sensi-Care and that the nurses who applied
Sensi-Care to the wound should have cleaned the entire area but
it appeared from the nurses statements that new Sensi-Care had
been applied over the old Sensi-Care without assessment of the
wound.
Given the substantial record evidence of the Life Care
nurses' failure to properly assess and document Client A's left
buttock wound, Dr. Johnson's alternative explanation for its
cause - that the seizures caused friction and led to the opening
of the wound in an area that had previously been damaged and
healed - does not address whether caregiver neglect occurred.
Furthermore, the testimony by Dr. Johnson that Client A had
previously damaged and healed skin impairment does not support
Life Care's assertion that the left buttock wound was not in an
exacerbated state prior to December 1, 2015.
(3) In light of the foregoing, the Hearing Officer did
not clearly err in determining that Life Care committed caregiver
neglect. Tauese v. State, Dep't of Labor & Indus. Rels., 113
Hawai#i 1, 25, 147 P.3d 785, 809 (2006), ("'An agency's findings
are not clearly erroneous and will be upheld if supported by
reliable, probative and substantial evidence unless the reviewing
court is left with a firm and definite conviction that a mistake
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has been made.'" (citation omitted)) as corrected (Nov. 21,
2006). We will not pass upon issues dependent on the credibility
of witnesses and the weight of conflicting evidence, In re
Hawaiian Elec. Co., 81 Hawai#i at 465, 918 P.2d at 567, which is
the province of the Administrative Hearing Officer in his or her
field of expertise. Therefore, DHS's finding of caregiver
neglect was not clearly erroneous or an abuse of discretion, nor
did the Circuit Court err in affirming the D&O.
Therefore, IT IS HEREBY ORDERED that the "Court Order
Affirming State of Hawai#i, Department of Human Services Decision
and Order," entered on July 19, 2017, and the "Judgment" entered
on August 25, 2017, by the Circuit Court of the Third Circuit,
are affirmed.
DATED: Honolulu, Hawai#i, April 25, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Kenneth S. Robbins,
Melinda Weaver, /s/ Katherine G. Leonard
for Appellant-Appellant Associate Judge
Heidi M. Rian, /s/ Sonja M.P. McCullen
Candace J. Park, Associate Judge
Deputy Attorneys General,
Department of Attorney General,
for Appellee-Appellee
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