Nurse Challenges State’s Abuse Registry

NASHVILLE (CN) - Tennessee's nurse abuse registry is unconstitutional because its definition of neglect is vague or overbroad, a licensed practical nurse claims in court.

S.F. sued Attorney General Robert E. Cooper and Department of Health Commissioner John Dreyzehner in Davidson County Chancery Court.

The Tennessee Department of Health maintains the "abuse registry" which affects the rights and standings of nurses and caregivers in the state. The abuse registry allows online visitors to search for health care professionals by name or Social Security number.

S.F. was placed on the abuse registry in May 2013 this year being served notice of charges for two counts of "abuse and/or neglect", she says in the complaint.

S.F. claims the defendants do not define "neglect," inconsistently define "abuse."

She claims that Tennessee Code Annotated Title 68, on Health, Safety and Environmental Protection, is used to place people on the abuse registry though Title 68 "does not define the terms 'abuse' or 'neglect.'"

"The charges against S.F. included an alleged failure to 'physically assess' a patient and administering an allegedly contraindicated sickness medication (Phenergan) to a patient without contacting a physician," the nurse says in the lawsuit. (Parentheses in complaint.)

Phenergan is an over-the-counter antihistamine.

S.F. adds in the complaint: "The 'Abuse Registry', as it is stigmatically known, contains nurses' names and, supposedly, the 'applicable definition of abuse, neglect, misappropriation or exploitation of property.' However, in fact, there is no standard, applicable definition of 'neglect' on the Registry, and 'abuse' is defined differently and inconsistently."

S.F. claims that Title 33 of the Tennessee Code "requires the mental state (scienter) of 'knowing' in order to constitute 'abuse.'" She claims that the mental state of a nurse - whether "neglect" is a mistake versus an intentional violation - is difficult for the state to ascertain.

"For example, it is unclear whether 'neglect' means a single act of 'negligence,' any mistake that causes pain, or whether a reckless, knowing, willful, or intentional mental state is required from the nurse," the complaint states.

S.F. says she used that argument in contesting the charges of abuse and neglect in a due process hearing before an Administrative Law Judge.

The state responded to her motion "by arguing that no mental state at all is required for the State to prove a nurse should be placed upon its abuse registry and that an 'act', in and of itself, is all that is necessary to warrant placement on an abuse registry," according to the complaint.

After receiving the state's response, S.F. requested an immediate hearing with the administrative law judge, which was granted and held that evening, July 31.

At the hearing, the administrative judge acknowledged that the lack of definitions of "abuse" and "neglect" has "bothered" the court for 13 years, S.F. says in the complaint.

The judge also said at the hearing that "an understanding of the mental state required is helpful" and clear definitions would be "an important benefit" for the state, according to the complaint.

"'Egregiousness' is sometimes used, 'multiple acts' are sometimes used, a single act has been used, 'routinely negligent' has been used, and 'intentionally neglected' has been used. And now, the State is contending that no mental state is required at all," the complaint states.

S.F. claims that "there is, currently, a subjective enforcement of laws based upon arbitrary criteria."

She seeks declaratory judgment "that the meaning of 'neglect' is unconstitutionally vague or overbroad; alternatively, that 'knowing' is the applicable mental standard for 'neglect' before a nurse may be placed upon the abuse registry," plus costs of suit.

S.F. is represented by Michael L. Russell, with Gilbert Russell McWherter, in Brentwood, Tenn.

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