This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






C.J.K., petitioner,





State of Minnesota,

Department of Health,



Filed October 31, 2000


Shumaker, Judge

Dissenting, Schumacher, Judge


Hennepin County District Court

File No. WA9958


Kathleen K. Rauenhorst, Rauenhorst & Associates, P.A., Rosedale Towers, 1700 West Highway 36, Suite 520, Roseville, MN 55113 (for appellant)


Mike Hatch, Attorney General, Helen G. Rubenstein, Assistant Attorney General, 445 Minnesota Street, #1200, St. Paul, MN 55101-2130 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


The district court affirmed the commissioner of the department of health's determination that appellant, a registered nurse, committed maltreatment of a vulnerable adult nursing home resident by neglecting to provide required care.  Because the procedures appellant followed constituted therapeutic conduct, he did not commit maltreatment, and we reverse.


            Appellant C.J.K. is a registered nurse who was employed at a nursing home licensed by the State of Minnesota.  P.S. was a 57-year-old vulnerable adult female who resided at the nursing home.  P.S. had multiple physical and mental problems.  She had been diagnosed as having dementia and schizophrenia.  She did not speak, wandered the halls of the nursing home, was incontinent, and experienced constipation.  The nursing home developed a written care plan for P.S.  Among the approaches to P.S.'s constipation problem were digital rectal exams for fecal impaction and monitoring for abdominal distension.  For the period of October 27, 1994, through March 25, 1996, P.S.'s charted vital signs varied, ranging from 95.7 to 98.7 in temperature; 64 to 82 in pulse rate; 16 to 42 in respiration rate; 100 to 136 in systolic blood pressure; and 60 to 80 in diastolic blood pressure.  C.J.K. knew P.S. and was familiar with her medical history.

            On April 8, 1996, C.J.K. began his duty shift at 10:30 p.m.  P.S. was asleep when C.J.K. did rounds at midnight.  At 2:15 a.m. on April 9, 1996, a nursing assistant reported to C.J.K. that P.S. was awake and perspiring.  C.J.K. checked on her at 2:30 a.m.  P.S. was uncovered in bed, breathing rapidly and sweating profusely.  The bed was soaked.  Her temperature was 98.2, her blood pressure was 130/64, her respiratory rate was 36, and her pulse rate was 140.  Her extremities were cool to the touch, her nail beds purple in coloration, and her capillary refill was good.  C.J.K. changed P.S.'s bedding and returned her to bed.  C.J.K. believed that P.S.'s symptoms were caused by constipation and he did not notify her physician of her condition.  A nursing home policy required that a physician be notified of any significantly changed condition.

            C.J.K. assessed P.S. at 3:30 a.m. and 5:30 a.m.  He performed a digital rectal examination at an unspecified time between 2:30 a.m. and 6:30 a.m. and noted the presence of stool.  He gave P.S. a suppository.  P.S.'s pulse remained elevated.

            When C.J.K.'s shift ended at 6:30 a.m. on April 9, 1996, he reported P.S.'s condition to nurse S.K.  By that time, P.S. was walking in the halls, was pale, and her nail beds were cyanotic.  At 8:00 a.m. the director of nursing noticed something wrong with P.S. and asked if her physician had been called.  S.K. said she would call at 8:30 a.m. when the physician would be available.  At about 8:30 a.m. P.S. fell over backward and struck her head.  S.K. called P.S.'s physician at 9:10 a.m., and the physician instructed her to have P.S. taken to the hospital emergency room.  P.S. died shortly after arriving at the hospital.  The Hospital Emergency Services Record listed P.S.'s diagnosis as cardiorespiratory arrest.  There was in effect at the time a direction that P.S. was not to be resuscitated.  No post-mortem examination was performed.

            The Minnesota Department of Health investigated and determined that C.J.K. maltreated P.S. by neglecting to perform an accurate assessment of P.S.'s condition, failing to notify her physician of a significant change in her condition, and failing to document her chart after C.J.K.'s initial notation at 2:33 a.m.

            After an evidentiary hearing before a referee, the commissioner of the health department adopted several of the referee's findings and concluded that C.J.K.'s conduct constituted maltreatment of a vulnerable adult through neglect.

            The district court affirmed all of the commissioner's findings except the determination that C.J.K.'s neglect of P.S. caused her death.


            In an appeal from the district court's review of an agency decision, we review the agency's decision to determine whether it is "unsupported by substantial evidence in view of the entire record as submitted,” is “arbitrary or capricious,” or [whether] the agency made an “error of law."  Minn. Stat. § 14.69 (1998) (Minnesota’s Administrative Procedure Act); see Brunner v. State, Dep’t of Pub. Welfare, 285 N.W.2d 74, 75 (Minn. 1979) (holding, in appeal from district court's review of agency decision, that appellate court's scope of review is determined by Minnesota’s Administrative Procedure Act).

            Maltreatment of a vulnerable adult can take the form of abuse or neglect.  Minn. Stat. § 626.5572, subd. 15 (1998).  Neglect is a failure to give care or services reasonable and necessary to maintain the vulnerable adult's health or safety.  Minn. Stat. § 626.5572, subd. 17(a)(1) (1998).  A failure to give care or services is not neglect if it results from therapeutic conduct.  Minn. Stat. § 626.5572, subd. 17(a)(2) (1998).  Therapeutic conduct is the provision of health care "in good faith in the interests of the vulnerable adult * * * ."  Minn. Stat. § 626.5572, subd. 20 (1998).

            The referee found that C.J.K. was not acting in bad faith when he assessed P.S.'s conduct and when he failed to call her physician, but that his assessment was inadequate.  The referee also found that C.J.K. did not comply with the nursing home's policy that required notice to a physician if a resident's condition changed significantly, and that witnesses testified that C.J.K.'s conduct fell below the standard of care required of registered nurses.  The district court affirmed these findings.  There is no dispute that C.J.K. misinterpreted P.S.'s symptoms.  However, a good-faith misinterpretation of symptoms does not preclude the possibility that C.J.K. was engaging in therapeutic conduct if he was giving health care in P.S.'s interests.

            P.S. had a history of problems with constipation.  Her health care plan called for the performance of digital rectal examinations to detect the presence of impacted feces.  C.J.K. made a nursing assessment that included vital signs and he performed a digital rectal examination.  The exam revealed the presence of stool, which C.J.K. treated with a suppository.  Although there apparently was a broader assessment that would have been appropriate, the evidence does not indicate that C.J.K. failed to act in P.S.'s interests.

            C.J.K.'s conduct was not medically inappropriate; it simply did not go far enough.  But the conduct did satisfy the test of therapeutic conduct because it consisted of appropriate health care for a documented and objectively determined condition; it was done in good faith; and it was intended to relieve P.S. of her constipation.  The commissioner's determination that C.J.K.'s procedures were not therapeutic conduct is unsupported by substantial evidence.

            Finally, although C.J.K.'s failure to follow the nursing home's physician-notification policy and the possibility that his conduct fell below standard nursing practice might be relevant for other purposes, they are not determinative of whether or not C.J.K.'s conduct constituted maltreatment of a vulnerable adult as defined by statute.



SCHUMACHER, Judge (dissenting)

I respectfully dissent.  We review the agency's decision to determine whether it is unsupported by substantial evidence in view of the entire record as submitted, is arbitrary or capricious, or whether the agency made an error of law.  Minn. Stat. § 14.69 (1998) (Administrative Procedure Act).  The majority notes that the statutory definition excludes failures or omissions in supplying care or services that are "the result of * * * therapeutic conduct," Minn. Stat. § 626.5572, subd. 17(a)(2) (1998), and concludes as a matter of law that C.J.K.'s actions satisfied the statutory definition of "therapeutic conduct."  The majority therefore concludes that the commissioner's determination that C.J.K. committed neglect is erroneous as a matter of law.

I disagree with the majority's interpretation of the statute.  The treatment C.J.K. gave P.S. may have constituted "therapeutic conduct," but C.J.K.'s "failure or omission * * * to supply [P.S.] with care or services," id., subd. 17(a), was not "the result of" those actions.  Id., subd. 17(a)(2).  Instead, C.J.K.'s failure to provide P.S. with the care or services P.S. needed was the result of C.J.K.'s failure to call a doctor in response to a significant change in P.S.'s condition.  The record contains substantial evidence to show that this failure violated the nursing home's policy and was unreasonable under the circumstances.  I would affirm the district court.