Delaware Supreme Court Narrows the Definition of “Neglect” for Placement on the Adult Abuse Registry
Despite its laudable intent, the Delaware Patient Abuse Act, since its inception in 1986, has been a source of anxiety for individual healthcare providers as well as operators of long-term care and other nursing and psychiatric facilities. The Act prohibits the abuse, neglect, and mistreatment of patients or residents of such facilities, and was intended to provide added protection to this vulnerable population from conduct not fully covered by traditional criminal statutes. The Act provides for both civil and criminal penalties for persons who knowingly abuse, mistreat or neglect a patient or resident of a long-term care facility. While in extreme circumstances, the perpetrator may be charged with a felony, any violation of the act can result in the suspension or even revocation of a healthcare provider’s license, as well as the stigma of being placed on the Adult Abuse Registry. The length of time a healthcare provider may remain on the Registry is somewhat arbitrary and depends in part on the particular circumstances of the case. Facilities are required by law to check this Registry before hiring employees who have direct access to patients or residents, and so a healthcare provider will, for all practical purposes, be prohibited from employment in the industry for as long as his or her name remains on the Registry. What’s more, healthcare facilities governed by the Act can be prosecuted or civilly sanctioned for failure to report abuse or neglect by one of their employees.
While the intent of the Act -- to protect the public from healthcare providers who have intentionally mistreated patients in their care -- is praiseworthy, there have been serious concerns raised in the past that generally conscientious and caring healthcare professionals who have simply made an error in judgment resulting in an unintended injury to a patient, could be unfairly stigmatized by being placed on the Registry, and in the process lose their livelihood. In addition, facilities governed by the Act have often been faced with the unenviable choice of either reporting a valued and respected employee as an “abuser” for an incident amounting to a good faith mistake, or risking prosecution for failure to do so. The primary source of this apprehension has been a lack of clarity and precision in the definition of “neglect”, which has led to uncertainty about the level of conduct warranting a report and, ultimately, listing on the Registry.
In the recent case of Delaware Department of Health and Social Services v. Jain, the Delaware Supreme Court went a long way toward removing this uncertainty by specifically addressing the mental state required to find “neglect” for the purposes of the Patient Abuse Act and Adult Abuse Registry. In deciding this issue of first impression, the Court found that to be placed on the Registry, a person must have committed an act of “neglect” either knowingly, recklessly, or intentionally. In other words, a negligent or even careless act is not enough.
The term “neglect” is defined by the Patient Abuse Act as:
- Lack of attention to the physical needs of an infirm adult including, but not limited to, toileting, bathing, meals and safety;
- Failure to report the health problems, changes in health problems or changes in health condition of an infirm adult to an immediate supervisor or nurse;
- Failure to carry out a prescribed treatment plan for an infirm adult; or
- A knowing failure to provide adequate staffing which results in a medical emergency to any infirm adult, where there has been a documented history of at least two prior cited instances of such inadequate staffing levels in violation of levels required by statute or regulations promulgated by the Department of Health and Social Services, evidencing a willful pattern of neglect.
The focus in Jain was on subsection (a) of the neglect definition, a lack of attention to a patient’s physical needs. In reviewing the statute, the Supreme Court observed that while subsection (d) of the definition clearly requires a “knowing” act, the other subsections do not specifically address what, if any, state of mind is required.
In Jain, a registered nurse employed by the Delaware Psychiatric Center was to be placed on the Registry because she was found to have failed to assess a patient properly after observing the patient lying face down on the floor, eyes closed, wet with urine. The patient was noted to be breathing and had a history of acting out, including lying on the floor, and so the nurse believed that the patient was experiencing a psychiatric, not a medical episode. Upon observing the patient in this condition, and after calling out to her two or three times and not receiving a response, the nurse went to get another staff member to assist her. About four or five minutes later, while the nurse was checking the staffing list at the nurses station, another facility attendant informed her that the patient had “gone bad”. The nurse and two others immediately rushed to the patient who was no longer breathing and attempted, unsuccessfully, to revive her.
In deciding what facts establish a “lack of attention to physical needs”, for purposes of defining “neglect” under the Patient Abuse Act, the Supreme Court looked at the purpose behind the Act, compared the definition of neglect with the medical negligence statute, and examined the legislative history of the two statutes. The Court ultimately distinguished “neglect”, as defined in both the Patient Abuse Act and the statute creating the Adult Abuse Registry, from the concept of breaching the standard of care found in Delaware’s medical negligence statute, and determined that more than just negligence or carelessness is required to constitute “neglect”. The Court found that in order to show “neglect” for purposes of the Adult Abuse Registry, a person must at least act knowingly or recklessly. In coming to this decision, the Court relied in part on a 1999 amendment to the definition of neglect in 16 Del. C. 1131, which deleted the word “intentional”. In the synopsis that accompanied the amendment, the Delaware General Assembly explained that the Patient Abuse Act was being expanded to include “acts which are done knowingly or recklessly as well as those which are done intentionally”. The Court also noted that if the General Assembly intended the definition of neglect to include acts done negligently or carelessly, as those terms are used in a classical tort sense, it would have specifically done so.
The Supreme Court ultimately determined that the conduct of the nurse in Jain did not meet the requirements necessary to show “neglect” through a lack of attention to the patient’s physical needs because she was not abandoning or ignoring the patient, but rather was only temporarily leaving the patient to get help to address her needs. In arriving at this decision, the Court looked at the totality of the circumstances which showed uninterrupted attention to the patient’s needs, not intentional, knowing, or reckless neglect.
With this important decision, the Delaware Supreme Court has refocused the Delaware Patient Abuse Act and the Adult Abuse Registry on its essential purpose, protecting our most vulnerable citizens from truly neglectful “caregivers”. At the same time, this clarification provides much needed guidance to operators of long-term care, psychiatric and other nursing facilities who often face difficult decisions about reporting suspected patient “neglect”, and should provide some assurance to those individual healthcare providers working in these facilities who may in the past have feared that one isolated misjudgment could lead to a career-ending classification as an abuser.
