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In the Matter of Ollie Kendrick.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2013

IN THE MATTER OF OLLIE KENDRICK.

On appeal from the New Jersey Civil Service Commission, Docket No. 2011-1121.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 5, 2012

Before Judges Grall, Koblitz and Accurso.

Ollie Kendrick was formerly employed as a licensed practical nurse by the North Jersey Developmental Center (NJDC), a facility operated by the Department of Human Services. Kendrick held her position with NJDC subject to the provisions of the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, and she appeals a final decision of the New Jersey Civil Service Commission (Commission) upholding her removal on disciplinary charges. Because the Commission's decision is supported by the record and not arbitrary or capricious, we affirm.

On May 6, 2010, Kendrick gave K.D., a resident of NJDC, a medication prescribed for a different patient. As a consequence of that mistake, K.D. required hospitalization and a tracheotomy. Kendrick did not deny her error. Indeed, she reported the mistake.

NJDC served a preliminary notice of disciplinary action on May 10 and an amended notice on May 17, 2010. In both, Kendrick's employer alleged conduct unbecoming an employee, serious mistake due to carelessness which would result in danger or injury to another, neglect of duty, violation of a rule, policy or procedure of the facility and other sufficient cause. N.J.A.C. 4A:2-2.3(a)6, 7, 11.*fn1 The descriptions of the incident giving rise to the charges set forth in the notices further indicated that Kendrick failed to adhere to a procedure for administration of medication requiring the nurse to state the client's name, and confirm that five things were right - the patient, the drug, the dose, the route and the time.

Following a departmental hearing, NJDC determined the charges were established and that Kendrick should be removed from her position. As authorized by N.J.S.A. 11A:2-15, Kendrick filed an administrative appeal with the Commission, and the matter was referred to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).

At the OAL hearing, the parties stipulated that K.D. was given the wrong medicine and hospitalized for seven days as a consequence and that NJDC handled the matter without advising the Department of Health and Human Services. The ALJ heard testimony from several witnesses. The supervisor of nursing services described the procedures for distribution of medication and the five things that nurses are directed to confirm are correct before dispensing it.

According to the supervisor, problems with Kendrick's work were detected prior to this incident. In April 2010, the following deficiencies were detected in an audit of Kendrick's performance: dispensing more medication than prescribed; improper record keeping; and leaving the medication cart unlocked and unattended. Another staff member present at the time of this incident testified the staffing was adequate and there was no commotion.

In addition, Kendrick described what occurred. Acknowledging her familiarity with K.D. and the patient whose drug K.D. was given and that they do not resemble one another, Kendrick explained that the other patient was standing before her when she took the medication out, but when Kendrick turned and handed it to the patient, K.D. was standing in that spot. Kendrick said she did not notice the switch until it was too late.

The ALJ issued an initial decision stating her findings of fact and her reasons for concluding that the charges had been established and recommending that the Commission affirm the sanction of removal. The Commission accepted and adopted the ALJ's findings of fact and conclusions on October 6, 2011. Specifically, the Commission found that Kendrick failed to confirm that she was giving the right drug to the right patient as required by standard procedures she was obligated to follow. The Commission concluded that this amounted to neglect of duty that would destroy public respect for the quality of governmental services and warranted a "severe sanction."

Kendrick raises these issues for our consideration:

I. NJDC FAILED TO PROVE THAT ITS POLICIES AND PROCEDURES DID NOT CAUSE OR CONTRIBUTE TO THE MEDICAL ERROR AS REQUIRED BY THE ACT AND THEREFORE CANNOT SUSTAIN ITS BURDEN OF PROOF THAT THE TERMINATION OF AN EMPLOYEE FOR THAT MEDICAL ERROR WAS JUSTIFIED.

II. NJDC'S FAILURE TO REPORT THE INCIDENT, IN THE FACE OF STATUTORY REQUIREMENTS THAT IT REPORT SERIOUS INCIDENTS MUST BE TREATED AS AN ADMISSION THAT THE INCIDENT WAS NOT SERIOUS WITHIN THE MEANING OF THE ACT, AND CONSEQUENTLY SHOULD BE ESTOPPED FROM DISMISSING KENDRICK.

III. NJDC FAILED TO PRESENT ANY EVIDENCE SUFFICIENT TO SUSTAIN A CHARGE OF CONDUCT UNBECOMING A PUBLIC EMPLOYEE, OTHER SUFFICIENT CAUSES, NEGLECT OF DUTY AND WILLFUL FAILURE TO DEVOTE ATTENTION TO TASKS AND AS SUCH THOSE CHARGES SHOULD BE DISMISSED.

IV. NJDC'S "FIVE RIGHTS" POLICY IS INADEQUATE AS APPLIED TO KENDRICK AND THEREFORE A CHARGE OF VIOLATING A RULE, POLICY OR PROCEDURE CANNOT BE SUSTAINED TO SUPPORT KENDRICK'S TERMINATION.

In a reply brief, Kendrick argues:

I. THE COMMISSION'S DECISION THAT KENDRICK NEGLECTED HER DUTY IS ERRONEOUS AS THE COMMISSION FAILED TO TAKE INTO CONSIDERATION THE MANDATES OF THE PATIENT SAFETY ACT N.J.S.A. 26:2H-12.23 et. seq HENCE IT IS ARBITRARY AND CAPRICIOUS.

II. THE COMMISSION'S DECISION SHOULD NOT BE GIVEN ANY DEFERENCE AS THE COMMISSION HAS NO SPECIFIC EXPERTISE IN HEALTH CARE MATTERS.

III. THE COMMISSION'S DECISION AFFIRMING REMOVAL WAS ARBITRARY AND CAPRICIOUS AND MUST BE REVERSED.

We have considered the foregoing arguments in light of the record and concluded that they lack sufficient merit to warrant discussion beyond the brief comments that follow. R. 2:11-3(e)(1)(E). The Commission's decision "is supported by sufficient credible evidence in the record as a whole."

R. 2:11-3(e)(1)(D). Moreover, the punishment imposed does not offend concepts of progressive discipline that can be bypassed "when the employee's position involves public safety and the misconduct causes [a] risk of harm to persons or property." In re Herrmann, 192 N.J. 19, 33 (2007). On the facts of this case, we cannot conclude that the Commission erred in applying that exception to progressive discipline, which is generally invoked in cases involving law enforcement officers, to this nurse's causing of serious harm to this patient by giving her a drug prescribed for another patient.

Finally, we reject Kendrick's claim that she was entitled to a favorable inference about the severity of her misconduct because her employer failed to report this incident in accordance with the Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25. That Act has no relevance to appropriate discipline of employees of a facility such as NJDC who neglect to follow procedures adopted to keep patients safe.

Affirmed.


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