An old woman, 95 years of age, is a patient at a certain Staten island hospital. On 9 June 1998, she became comatose, cyanotic and unresponsive after she became disconnected from her ventilator machine. An employee of the hospital heard the old woman’s room alarm sound but the alarm at the nurses' station failed to sound. Hence, it could not be determined as to how long the old woman remained disconnected from the ventilator. Respirator assistance was then provided to the old woman by the medical staff of the hospital. Thereafter, she was immediately transferred back to the cardiac care unit, which is where she had been prior to the ventilator incident, and there she received intensive therapeutic care and massive blood transfusions. From 10 June 1998 through 11 June 1998, the consulting neurologist indicated in his progress notes that the old woman had a guarded prognosis and was not receptive to outside stimuli. From 12 June 1998 through 17 June 1998, the progress notes indicated that the old woman was improving. The old woman’s neurologist then noted that she was at baseline, neurologically stable. In other words, the old woman’s neurological condition returned to the state that it had been prior to the ventilator disconnection. Thereafter, the hospital took several remedial measures to prevent any future incidents of this type. The hospital’s Code 15 committee reviewed the old woman’s case to decide whether or not it warranted Code 15 treatment, which consists of reporting to the Agency for Health Care Administration or AHCA within fifteen days of the incident, but later voted against such Code 15 treatment, believing that since the old woman recovered to her neurological baseline, no brain damage or brain injury had occurred. Instead of filing the incident as a Code 15, the hospital reported the occurrence as an adverse incident in its Annual Report of Incidents.
Consequently, the AHCA filed an administrative complaint against the hospital and contends that the hospital violated the law by reason of their failure to report a hypoxic event that caused brain damage to a patient as a Code 15 occurrence.
Sometime in December 2000, a formal hearing was held. After that, the administrative Law Judge or ALJ concluded that the old woman did in fact suffer from a brain damage, a transient or temporary brain damage, and the hospital should have reported the incident as a Code 15; and recommended that AHCA had justification to levy a $5,000.00 administrative fine against the hospital.
The hospital now appeals the aforesaid order.
The first issue is whether or not the hospital was required to report the incident to the AHCA.
Under the law, the hospital, as a licensed hospital facility, is required to report to AHCA within fifteen days of occurrence, any adverse or untoward incident that results in a brain or spinal injury to a patient. The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action. An agency's interpretation of the statute it is charged with enforcing is entitled to great deference. However, a court need not defer to an agency's construction or application of a statute if special agency expertise is not required, or if the agency's interpretation conflicts with the plain and ordinary meaning of the statute. If the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain meaning. When necessary, the plain and ordinary meaning of words in a statute can be ascertained by reference to a dictionary.
Here, the subject statute provides for the term "brain damage", which exists under the list of every potential personal injury enumerated therein, separate and apart from any condition that results in a limitation of neurological, physical, or sensory function which continues after discharge from the facility. Thus, it is irrelevant under the injury or adverse or untoward incident, whether any brain damage in fact continues after discharge from the facility. Upon a reading of the subject statute, the words clearly mandate that whenever a brain or spinal injury to a patient result, it needs to be reported as a Code 15 occurrence. There is no word permanent before the word brain injury. In fact, the only term in the list of injuries enumerated, that the Legislature described as permanent, is that of disfigurement. No such other term modifies brain damage. Thus, since the Legislature did not modify the term brain damage with any word such as permanent or temporary, this intentional legislative omission cannot be lightly disregarded. The rule is, courts are not at liberty to add words to statutes that were not placed there by the Legislature. Thus, the Queens court finds that the plain meaning of the term is clear and unambiguous.
Moreover, under the Webster's Third New International Dictionary, the word "damage" is defined as a loss due to injury; injury or harm to a person, property or reputation; while under the Black's Law Dictionary, it is defined as a loss or injury to person or property. Obviously, this dictionary definition does not confine the term to only permanent injury. Thus, based upon the plain meaning of the subject statute, the court finds that brain damage can result even if a patient, such as the old woman, returns to a neurological baseline.
The second issue is whether or not the requirement of reporting any incident of brain damage to AHCA is indeed a logical interpretation of the applicable statute.
As a rule, once an enumerated incident occurs, a licensed facility must report to the agency within fifteen days. If a facility does not have to report an incident caused by a ventilator disconnection until the facility learns whether or not the incident is of a permanent nature, then in many cases it would be impossible for the facility to report to the agency within fifteen days.
Here, while the old woman did begin to return to a neurological baseline within three to four days, it is also quite possible that the old woman could have remained comatose for months before returning to baseline. If the court would rule that he hospital was not required to report the incident because the old woman later recovered, this outcome is not reasonable and would render the fifteen-day reporting requirement period dependent upon the length of the personal injury instead of its severity. Thus, the court finds that the hospital is certainly required to make the report. This interpretation of the subject statute renders a more logical outcome.
Lastly, the third issue is whether or not AHCA's construction and interpretation of the term "brain damage" were vague and unconstitutional as applied to appellant, but AHCA argues that appellant waived this constitutional challenge by failing to raise this issue timely.
Under the rules, constitutional challenges can be raised for the first time on appeal. Administrative agencies lack the power to consider or determine constitutional issues. Courts have ruled that the administrative process cannot resolve a constitutional attack on a statute, rule or regulation; and that a party is not required to argue the facial constitutionality of a statute before an administrative agency because the agency lacks the power to declare a statute unconstitutional.
Here, since the order appealed from was decided by an administrative agency, the hospital can challenge the constitutionality of AHCA's action for the first time in appeal. Nonetheless, the subject statute is clear and unambiguous; and, the rule is, if the record demonstrates that a party engaged in some conduct that is clearly proscribed by the plain and ordinary meaning of the statute, then that party cannot successfully challenge it for vagueness. The AHCA's construction and interpretation of the statute are not vague and were not unconstitutionally applied to the hospital. Thus, by not reporting the ventilator incident as a Code 15 occurrence, the hospital undoubtedly violated the statute.