195 Vt. 181
Vt.2013Background
- Whittington served as Nursing Home Administrator at Gill Odd Fellows Home (Ludlow) from 2006 to 2010; state charged unprofessional conduct under 3 V.S.A. §§127, 129, 129a and related rules.
- Administrative law officer (ALO) conducted ten days of hearings and found multiple unprofessional-conduct instances, including interference with medical decisions, ombudsman interference, patient-rights violations, hostile work environment, interrupting medication passes, and deficiencies cited in surveys.
- ALO did not find Whittington mentally ill or psychologically unfit; imposed a five-year license suspension and various preconditions (leadership, management, communication courses, and two-year supervised practice).
- Whittington appealed to the superior court, which affirmed the ALO’s findings and sanction as within the ALO’s discretion.
- Whittington challenged the findings and the sanction on appeal to the Vermont Supreme Court, which affirmed in part, reversed in part, and remanded for redetermination of the sanction.
- Court struck two findings (life-sustaining-treatment questioning and survey-deficiency grounds) and remanded for sanction re-determination consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Whittington’s interference with medical treatment was unprofessional conduct. | Whittington asserts no conduct beyond scope occurred. | OPR argues conduct fell within 3 V.S.A. §129a(a)(13) and competent practice limits. | In part resolved; first finding reversed; not unprofessional conduct. |
| Whether interference with the ombudsman and patient-dressing decisions violated standards. | Whittington challenged these as unsupported or improper. | OPR contends these actions violated professional standards. | upheld; coalesces as unprofessional conduct. |
| Whether Whittington’s conduct created a hostile work environment supporting discipline. | Whittington challenges as workplace-management, not patient-care issue. | OPR frames hostile environment as impacting patient care and compliance with standards. | upheld; can support professional misconduct under 3 V.S.A. §129a(b). |
| Whether relying on division-survey deficiencies to establish unprofessional conduct was proper. | Whittington contends deficiencies alone cannot support professional-discipline. | OPR argues deficiencies reflect overall administrator responsibility. | reversed; cannot rely on deficiencies as grounds for professional misconduct here. |
| Whether the five-year suspension was appropriate; whether remand is required. | Whittington contends sanctions were excessive; should be closer to requested term. | OPR argues strong noncompliance justifies long suspension. | remanded for redetermination of sanction; five-year term deemed an outlier; not affirmed as final. |
Key Cases Cited
- Devers-Scott v. Office of Prof'l Regulation, 2007 VT 4 (VT 2007) (intermediate-appellate standard; de novo for legal conclusions)
- Evans Grp., Inc. v. Foti, 2012 VT 77 (VT 2012) (credibility and weight of evidence; standard of review for fact-finding)
- In re Porter, 2012 VT 97 (VT 2012) (limits of physician-supervisor disciplinary bases)
- In re Smith, 169 Vt. 162 (VT 1999) (purpose of nursing regulation; life-safety focus)