Clawson v. Board of Registered Nursing (Dec. 17, 2021, No. A159990) __ Cal.App.5th __ [2021 WL 5976759]

Clawson v. Board of Registered Nursing (Dec. 17, 2021, No. A159990) __ Cal.App.5th __ [2021 WL 5976759]

Nursing Board may revoke license for unprofessional conduct and dishonesty in assessing the transfer of a residential care facility resident.

A residential care facility for the elderly (RCFE) that was closing hired William Clawson, R.N., to assess each resident and recommend a new facility. Clawson assessed J.N., an 83-year-old resident, conducting a skin examination that identified coccyx and red and nonblanching heels, but Clawson failed to remove the bandages on J.N.’s feet or notice that one of her knees was significantly contracted. Clawson’s appraisal recounted J.N.’s medical history, described her as “frail . . . with severe cognitive impairment, cachexia, and fragile skin,” and certified that “to the best of [his] knowledge [J.N.] does not need skilled nursing care.”  J.N. was then transferred to another RCFE, where caregivers described her condition as “very horrifying.”  J.N. was in significant pain, her bandages were old, her wounds “all smelled really bad,” her knee had a large open sore with visible tendons, and her toes were black with “a very strong infection odor.”  The new RCFE caregivers called 911 to have J.N. transferred to a hospital, where she died several weeks later.

A Department of Social Services investigator interviewed Clawson, who stated he had supervised an unlicensed care worker to perform a “head-to-toe” assessment of J.N., and claimed he would have detected any odors of feces, urine, or bacterial infection because his “assessment skills are fine.” About fourteen months later, an investigator for the Board of Registered Nursing interviewed Clawson, who then denied participating in J.N.’s assessment, which he claimed was performed solely by the unlicensed care worker. At a later administrative hearing, Clawson said he was not acting as a registered nurse at the time of the assessment, but only as a scribe. The ALJ found clear and convincing evidence that Clawson’s appraisal of J.N. was grossly negligence and that he engaged in unprofessional conduct, both as to the assessment and by being untruthful with the Board’s investigator. The Board adopted the ALJ’s decision and revoked Clawson’s nursing license. Clawson filed an unsuccessful petition for writ of administrative mandate, and then appealed. 

The Court of Appeal affirmed. Rejecting the same four arguments that Clawson had raised in the trial court, the court held: (1) a RCFE appraisal is a “nursing function” under Business and Professions Code section 2725; (2) the performance of an RCFE assessment by a nurse creates a nurse-patient relationship; (3) the Board was not required to plead a violation of a specific RCFE statute before disciplining Clawson; and (4) the Board was authorized (under section 2761) to discipline Clawson for unprofessional conduct based on dishonesty.