This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








D.R.W., LPN,





State of Minnesota, Department of Health,




Filed October 9, 2001


Schumacher, Judge


Blue Earth County District Court

File No. C6001018



Marlene S. Garvis, Jardine, Logan & O'Brien, P.L.L.P., 444 Cedar Street, Suite 2100, St. Paul, MN 55101-2160 (for appellant)


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



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

U N P U B L I S H E D   O P I N I O N


            Appellant D.R.W., a licensed practical nurse, challenges the Commissioner of Health's decision that she maltreated a vulnerable adult, arguing that the commissioner's finding of maltreatment is not supported by substantial evidence and is arbitrary and capricious.  We reverse.


            D.R.W. is a licensed practical nurse who was employed at a nursing home licensed by the State of Minnesota.  M.M. was an 89-year old woman who was admitted to the nursing home for rehabilitation after hip surgery.  M.M. was alert, pleasant, and cooperative when she arrived at the nursing home on June 19, 1996.  M.M. had been diagnosed with hypertension, mild congestive heart failure, and a seizure disorder, and was taking medication to lower her blood pressure.

             During the evening of June 21, 1996, M.M. complained of nausea and pain in her right arm.  Her skin was cool and moist.  M.M. had jerking motions in her left arm and leg, which prevented the nurse from taking her blood pressure.  M.M. became agitated, said she thought she was dying, and asked the nurse to call her doctor or 911. 

The nursing home's policy required staff to inform the resident, consult with the physician, and notify the responsible party whenever there was a significant change in the resident's physical, mental, or psychosocial status or an accident involving the resident which results in injury and may require physician intervention.  The nurse on duty that evening did not call the doctor because the nurse considered M.M.'s condition to be behavioral and not a significant change in condition.

On June 22, D.R.W. came on duty at 6:30 a.m. and received a taped report about M.M.'s condition the previous night.  D.R.W. first had contact with M.M. at 7:30 a.m., when M.M. asked D.R.W. to call her doctor.  D.R.W. called the physician at 7:30 a.m. and again at 8:15 a.m., and the physician returned the call at 8:30 a.m.   D.R.W. told the physician that M.M. was agitated and wanted to go home.   The doctor prescribed Xanax to relieve M.M.'s anxiety, and the medication was administered at 8:30 a.m. and at noon. 

That evening, M.M.'s condition deteriorated.  She was taken to the hospital at approximately 1:00 a.m. on June 23, 1996, and she died at 5:35 a.m.  The death certificate listed the cause of death as congestive heart failure six hours prior to death, a myocardial infarction two to three days prior to death, and an acute cerebralvascular accident.

The Minnesota Department of Health Office of Health Facility Complaints  investigated D.R.W.'s treatment of M.M. and issued a finding of maltreatment under the Vulnerable Adults Act.  The Office of Health Facility Complaints found that D.R.W. failed to observe a vulnerable adult appropriately by failing to take M.M.'s vital signs and failing to review the medical records prior to calling M.M.'s physician.  D.R.W. requested reconsideration of the maltreatment finding, and the Office of Health Facility Complaints denied the request.

A Minnesota Department of Human Services referee then held an evidentiary hearing. The referee recommended reversal of the maltreatment finding based on the single mistake exception.  The referee found that D.R.W. failed to observe and report necessary information to the physician and that therefore D.R.W. neglected M.M. by failing to observe and report necessary information, but that D.R.W.'s actions qualified as a single mistake. 

            The commissioner affirmed the Office of Health Facility Complaints' finding of maltreatment, finding that D.R.W.'s actions did not fall within the single mistake or therapeutic conduct exceptions.  The district court affirmed the commissioner's determination, and this appeal followed.


Review of the commissioner's order in a maltreatment determination is authorized by Minn. Stat. § 256.045 (2000) and the scope of review is governed by Minn. Stat. § 14.69 (2000) (the Administrative Procedure Act).   Zahler v. Minn. Dep't of Human Servs., 624 N.W.2d 297, 300-01 (Minn. App. 2001), review denied (Minn. June 19, 2001).  This court reviews the commissioner's order independently, giving no deference to the district court's review.  Id. at 301.  On review, we must determine if the commissioner's decision was:

(a)       In violation of constitutional provisions; or

(b)       In excess of the statutory authority or jurisdiction of the agency; or

(c)       Made upon unlawful procedure; or

(d)       Affected by other error of law; or

(e)       Unsupported by substantial evidence in view of the entire record as submitted; or

(f)        Arbitrary or capricious.


Id. (citing Minn. Stat. § 14.69). 

An agency's decision is arbitrary and capricious if the decision represents the will of the agency, rather than its judgment.  Trout Unlimited, Inc. v. Minnesota Dep't of Agric., 528 N.W.2d 903, 907 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).  A decision will be deemed arbitrary and capricious

if the agency relied on factors which the legislature had not intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.




            D.R.W. claims the commissioner's findings of fact were not supported by substantial evidence and the conclusions of law were arbitrary and capricious.  In particular, D.R.W. contends that the commissioner erred as a matter of law because D.R.W.'s treatment of M.M. fell within either the single mistake or therapeutic conduct exception to neglect.  We first address the argument that the therapeutic conduct exception to neglect applies.  The statute defines neglect as

[t]he failure or omission by a caregiver to supply a vulnerable adult with care or services * * * which is not the result of an accident or therapeutic conduct.


Minn. Stat. 626.5572, subd. 17(a) (2000).  Therapeutic conduct is "the provision of program services, health care, or other personal care services done in good faith in the interests of the vulnerable adult."  Minn. Stat. § 626.5572, subd. 20 (2000). 

            The commissioner found that because D.R.W.'s treatment of M.M. involved omissions that could not be in M.M.'s interests, application of the therapeutic conduct exception "does not make sense under these facts."  Because this conclusion unduly narrows the statutory protection allowed for therapeutic conduct, we hold that the commissioner's decision was affected by an error of law.  See Minn. Stat. § 14.69 (d) (providing for review of whether commissioner's decision was affected by error of law).

We next consider the exception applied to the undisputed facts.  D.R.W.'s shift began at 6:30 a.m.   She first came in contact with M.M. at 7:30 a.m., when M.M. asked D.R.W. to call the doctor.  D.R.W. did so immediately.  When the physician failed to call back within 45 minutes, D.R.W. consulted with her supervisor and then called the physician again.  The physician returned the call at 8:30 a.m. and D.R.W. told him that M.M. was agitated and wanted to go home.  The physician prescribed medication based on M.M.'s symptoms, and D.R.W. administered the medication.

The commissioner found, however, that appellant did not take M.S.'s vital signs and report them to her physician.  But this omission was part of a course of treatment, done in good faith and intended as assistance for M.M.  See C.J.K., No. C9-00-583, 2000 WL 1617815, at *3 (Minn. App. Oct. 31, 2000) (holding that nurse's conduct satisfied test of therapeutic conduct, when it consisted of documented appropriate health care, was performed in good faith, and was intended to relieve patient's condition), review denied (Minn. Jan. 16, 2001).  Here, appellant did not fail to attend to her patient.  Rather, after listening to her patient and acting on her request, appellant took an important step that had not yet been taken:  she called the patient's physician, obtained advice, and acted on the advice.  Cf. id. (recognizing that conduct satisfied test of therapeutic conduct even though nurse failed to follow nursing home's physician-notification policy).  The record contains no evidence that appellant misinformed the physician or withheld any information that had been requested.

Although the commissioner found that D.R.W. did not take the vital signs and did not report all of M.M.'s symptoms to the physician, the evidence does not show that D.R.W. failed to act in good faith or failed to consider M.M.'s best interests.  We conclude D.R.W.'s treatment of M.M. was therapeutic conduct and did not constitute neglect or maltreatment of a vulnerable adult under the statute.  Because of this ruling, we need not address the remaining issues.