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Dr. MICHAEL A. S. GUTH |
IN THE CHANCERY COURT FOR KNOX COUNTY, TENNESSEE
STATE OF TENNESSEE
DEPARTMENT OF HUMAN SERVICES,
Petitioner,
vs. No: 174748-3
ELEANOR HILL,
Respondent.
MOTION TO DISMISS THE STATE’S COMPLAINT;
REQUEST FOR APPOINTMENT OF SPECIAL PROSECUTOR
Comes the Respondent Eleanor Hill, exercising her U. S. constitutional right to file motions pro se in a case in which she is party, and Respondent’s Health Care and Durable Attorney in Fact, Martin Goss, and respectfully moves this court to dismiss the State’s Complaint and order the release of the respondent. Further, the Respondent and Health Care Attorney move for the appointment of a special prosecutor to investigate and file charges against the parties who orchestrated this fraudulent seizure. In support of this motion, Respondent would show this Honorable Court as follows:
1. The Respondent signed a health care power of attorney as well as a Durable Power of Attorney appointing her grandson, Martin Goss, a Certified Nurse Assistant, to serve as her Health Care Attorney in Fact and make appropriate health care decisions concerning her treatment. The powers vested in her Attorney in Fact comprise decisions about where the Respondent should reside and whether she would be happier and receive better care at home or in a nursing home.
2. The Respondent lived with Martin Goss, who along with his brother, a former fireman and first responder, provided her with continuous care day and night. Of particular concern to her health care provider, the Respondent has a sore located on her buttock that requires a change of dressing twice daily, and sometimes more often, to be kept clean.
3. The Respondent was transported by ambulance to Ft. Sanders medical center on February 9, 2009. While riding in the ambulance, she had a diarrhea accident that contaminated her dressing. Such an accident and such contamination would occur whether the Respondent was residing in a hospital, a nursing home, or her own home. The nature of this particular sore and possible contamination from diarrhea accidents are such that these accidents do NOT pose an imminent risk of irreparable harm to the Respondent. (NOTE: Respondent recently underwent surgery to have an external colostomy bag connected to her side; she no longer excretes waste through her rectum and will not be contaminating the sore on her buttocks.)
4. Upon presentation at the hospital, a medical doctor asserted in writing that (1) he had previously seen this patient on or about February 2, 2009, one week earlier, and (2) that the dressing she had on February 9 at the hospital was the same one he had placed on her on February 2, 2009. These two declarations were both false and fraudulent.
5. Martin Goss had hired home health nurses to come to his home and periodically change the dressing on his grandmother’s sore. He has written proof, signed by the licensed nurses, that they changed his grandmother’s dressing on February 4, 2009, and other times prior to that. Furthermore, he has a written log of all transports of his grandmother. She was in her home and did not see any medical doctor or his nurses on February 2, 2009. Mr. Goss told this to the DHS investigator, who proceeded to ignore his statements of fact and written proofs and receipts, and orchestrated the seizure of the Respondent. Because of DHS staff’s own culpability in this matter, the state of TN is not capable of investigating the fraud perpetrated on this court and the harm to the Respondent. Accordingly, the Respondent and Martin Goss hereby move for the appointment of a special prosecutor to investigate both the DHS Adult Protective Services personnel related to this case and the physician who recklessly lied about the Respondent having the same dressing on her sore for over a week.
6. Mr. Goss repeatedly changed his grandmother’s dressing in the week prior to February 9, 2009, and the home health nurse has put in writing that she changed the dressing on February 4, 2009. Therefore, when the Respondent arrived at the hospital on February 9, she could not possibly have had the same dressing that was allegedly put on her by a medical doctor or his staff on February 2, 2009.
7. The basis of the Tennessee DHS claim for neglect rests on a pack of lies. Martin Goss and Respondent believe these lies were designed to get money from him and the Respondent by forcing her unnecessarily into health care facilities.
8. The Tennessee DHS has previously exhibited an appalling disregard for the constitutional and civil rights of elderly citizens. The Adult Protective Services unit has overreached and abused the authority given to it by the Tennessee legislature. See Exhibit 1, an article entitled “What About Tennessee Dept. of Human Services Abuse of the Elderly and Their Families?” written by Tennessee attorney Michael A. S. Guth, Ph.D., J.D., published on more than a dozen sites on the Internet, and used as course material for Continuing Legal Education seminars in the Knoxville area.
9. That article references a Knox County Chancery Court decision, attached as Exhibit 2,
which set an important precedent for this case.
The Legislature has cloaked the Department of Human Services with an overwhelming authority over the person of citizens of this State over the age 60. However, that authority has been tempered by imposing a burden upon the State to prove, although only by a preponderance of evidence, that there exists a reasonably strong probability of resultant irreparable physical harm if conditions are not removed or alleviated. The proof in this case fails to even establish that it is more likely than not that [the Respondent] will suffer some irreparable physical harm as a result of her [returning home].
Accordingly, the Movants ask this court to declare that DHS has once again seized an elderly citizen (the Respondent), incarcerated her against her will in a hospital, failed to establish any proof that she would suffer IRREPARABLE physical harm if she were returned to her own home under the care of her two devoted grandsons, one of whom is a certified nurse assistant and the other is former fireman/first responder, and Order the immediate release of the Respondent to the care of her grandson and Health Care Attorney in Fact.
10. The Movants have attached a Declaration of Martin Goss, Exhibit 3, which contains additional precise facts showing the level of care Martin Goss gives his grandmother and contradicting the assertions of DHS’s staff and medical expert.
Respectfully submitted this ___ day of April, 2009.
____________________________________
Eleanor Hill, Respondent pro se
816 Houston Street
Knoxville, TN 37914
(865) 973-6933
_____________________________________
Martin Goss, Health Care Attorney in Fact
for Respondent
816 Houston Street
Knoxville, TN 37914
(865) 973-6933
Certificate of Service
I certify that I mailed a true and exact copy of this Motion on April ___, 2009, to the attorney for Tennessee DHS: Butch Ashley, TN DHS, 531 Henley Street, Suite 210, Knoxville, TN, 37902, or by email to address ____________________________________; court appointed guardian ad litem James Enson, 618 S. Gay Street, Suite 300, Knoxville, TN, 37902 or by email to address ______________________________________________________.
_____________________________________
Martin Goss, Health Care Attorney in Fact for Respondent
This document was prepared with the assistance of Tennessee attorney Michael A. S. Guth, Ph.D., J.D., phone (865) 483-8309. Dr. Guth does not represent any party and will not be entering an appearance in this case.
LEGAL HELP, PRO SE ASSISTANCE
Parties representing themselves in court without an attorney
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EXHIBIT 1: What About Tennessee Dept. of Human Services Abuse of the Elderly and Their Families?
PART I: Physical Abuse of the Elderly vs. Tennessee DHS Abuse of Families
During the week of October 26, 2003, newspapers across the state of Tennessee published an Associated Press story that featured the glaring news headline, “Reports of neglect and abuse of senior citizens up 40% in six years.” The second sentence of the story indicated the Tennessee Department of Human Services’ (DHS) Division of Protective Services has a staff of only 83 to cover Tennessee’s 95 counties. Juxtaposed this way, the Associated Press story implied that abuse of the elderly in Tennessee is growing, the state has far too few resources devoted to the problem, and by implication the state needs to rearrange its priorities and spend more, much more, on adult protective services.
This perspective was echoed by state Rep. David Shephard, D-Dickson, who was quoted in the article as saying, “We are looking at a problem that is going to get bigger as medical advances continue and people live longer.” State Rep. Dennis Ferguson, D-Kingston, who chairs the House Health and Human Resources Committee, shifted the focus to preventing fraud perpetrated on the elderly: “A lot of time people are getting old and they don’t have a family and people take advantage of that. They go over and say ‘We want to help you’ and the first thing you know is they have their checking account and run through their money.”
While it is true that fraud and other scams perpetrated against the elderly is a serious and growing national problem, the extent of physical abuse and neglect of the elderly in Tennessee needs further scrutiny. The source of the Associated Press’s “40% increase” figure is none other than the Tennessee DHS. After reviewing how DHS classifies complaints, reasonable people may conclude that DHS is not properly closing its cases.
In the spirit of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), The Tennessee Law Times has constructed the following composite scenario based on actual cases that we have investigated and verified are true. This composite scenario respects the privacy rights of both medical patients and DHS staff, who may not want to be identified by name. The paper recognizes that some DHS staff may have been directed to take actions that violated their own sense of ethical standards and fair play.
Composite Case. An elderly patient with a broken hip was placed in a nursing home to recuperate following his hip repair surgery. The orthopedic surgeon initially places orders for nurses that the patient should not place weight on the leg associated with the repaired hip. Over time the surgeon changes the orders to allow 25% weight bearing, then 50% weight bearing, as the bone heals and the patient needs more physical therapy. Eventually, the surgeon is to allow full weight bearing on the leg with the repaired hip.
Through negligence of the nursing home, the patient is not brought to the surgeon for a scheduled follow-up appointment. Consequently, the surgeon’s 50% weight-bearing instruction is left on the patient’s chart long after the doctor’s order has become stale and the patient is seen walking on his own without assistance using both legs.
A family member visits the patient in the nursing home and helps him walk by providing assistance with his arm. A physical therapist at the nursing home and his assistant witness the patient walking with the family member, and they claim the family member was encouraging the patient to put full weight on his leg. The following day a social worker at the nursing home phones in a complaint to the Tennessee DHS Adult Protective Services unit. One might expect the over-worked and stressed DHS staff would quickly surmise that the patient is walking on his own, that the doctor’s orders are stale, and that a family member’s assisting the patient to walk certainly does not constitute physical abuse.
Indicated Abuser. Wrong! In actual cases, DHS’s Adult Protective Services unit initially labels the family member as an “accused” physical abuser of the elderly patient. The fact that more than one witness observes the alleged “abuse” automatically transforms the status of the family member from “accused” to “indicated” abuser, in DHS terminology. Meanwhile, the family member has no due process rights to learn the identity of the nursing home staff members who filed a complaint or even learn the circumstances of what they allege to DHS has occurred.
When the family member explains to DHS’s Adult Protective Services staff that the medical orders are stale, that the patient is walking on his own, that he merely provided a guiding arm to assist the patient who walked on his own, the DHS staff refuses to close the case. They continue their investigation and try to seek medical records on the patient from other doctors to seek evidence of physical abuse reported anywhere by anyone. No evidence of abuse is found after contacting multiple doctors, and still DHS will not close its investigation.
Stale Medical Orders. The family member, who is also healthcare attorney in fact for the patient, orders that the patient be brought to the surgeon’s office, using an ambulance at Medicare’s expense as the bureaucracy requires. The surgeon observes the patient walking and promptly corrects his now stale medical orders for the physical therapist to allow the patient to place full weight on the repaired hip and leg. This change in medical orders within a few days of the complaint being filed with DHS’s Adult Protective Services, thereby suggesting that the patient has been able to have full use of his leg for days. But still DHS will not close its investigation.
The fact that more than one witness observes the alleged “abuse” automatically transforms the status of the family member from “accused” to “indicated” abuser, in DHS terminology. Meanwhile, the family member has no due process rights to learn the identity of the nursing home staff members who filed a complaint or even learn the circumstances of what they allege to DHS has occurred.
Within a week, the family member discharges the patient from the nursing home and brings him home. DHS insists on conducting a home study visit, afterwards concluding that the family member is providing “excellent care” for the senior citizen. But still DHS will not close its investigation. DHS wants assurance that the former patient will not live alone, but the family is not prepared to offer such a blanket guarantee until they can observe how well the patient adjusts to living at home. For two months, DHS continues to call the patient’s home and calls relatives living out of state to learn whether the patient will be living with family members.
Stroke Risk With Nursing Home Negligence. As an interesting footnote to this story, a social worker at the nursing home told the family member that in her professional opinion, the patient was so mentally impaired that he needed 24-hour assisted living care of the kind provided in their nursing home. But the nursing home in fact provided grossly negligent care. A nurse practitioner at the nursing home unilaterally took the patient, who has atrial fibrillation, off a life-sustaining drug, Coumadin, in violation of doctors’ orders. For patients with atrial fibrillation, the absence of Coumadin increases the risk of stroke on a logarithmic scale.
The result was that this patient had an increased risk of developing a blood clot and stroke that was 5 times the normal risk: not a 5% increase in risk, a 500% increase in risk that went on for six weeks until the family member detected the negligence. When the family member told the social worker that under no circumstances would his father be left in the nursing home, the social worker retaliated a day later by phoning in a complaint of patient abuse to the DHS Adult Protective Services. In its defense, the nursing home stated the timing of the complaint was just a coincidence.
One would think that DHS staff could look into the motives of those alleging abuse to see if they were trying to confine the patient indefinitely to the nursing home against his will and also question whether there had been any animosity or retaliation of the nursing home staff directed at the family member. But DHS staff did not evince any deductive reasoning. Instead DHS Adult Protective Services staff viewed all doctors’ orders as black and white. They could not conceive of orders becoming stale. DHS staff also stated that doctors’ orders apply not only to nurses and physical therapists, but also to lawyers, family members, and visitors. According to DHS, doctors have a right to order lawyers, family members, and visitors how to care for a patient.
Informed Consent. DHS staff failed to recognize the basic elements of the legal relationship between doctor and patient, e.g., any patient has a right to fire a doctor she feels is not properly treating her, or patients could challenge any doctor’s orders by seeking a second opinion from another doctor. More important, even without benefit of a second medical opinion, a patient and her health care attorney have a right to listen to a doctor’s advice and reject it. That is what the legal doctrine of informed consent is all about.
Yet DHS acted as if they have a right to supersede the wishes of an elderly citizen and decide for him what is best for him to live the remaining years of his life. DHS intruded into the family’s peace and care for their elderly parent and would not back off when ordered to close the case by the patient, by his educated and articulate health care attorney in fact, and by other family members. DHS knew that it could not prevail in court in such a case. Yet DHS continued to harass the patient’s family and repeatedly refused to rule out the possibility that DHS would use the police powers of the state to place the patient in a nursing home against his will.
This case was an enormous waste of the taxpayer’s resources, and the only good DHS accomplished was to recommend that family members install handicapped bars on the complete circumference of the patient’s shower room at home. Once DHS begins an investigation, the citizens and taxpayers have no oversight. DHS thus spends as much time and resources as it chooses on any given case. The state legislators imposed specific guidelines requiring DHS to close obvious cases of non-abuse within a week or two.
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More important, even without benefit of a second medical opinion, a patient and her health care attorney have a right to listen to a doctor’s advice and reject it. That is what the legal doctrine of informed consent is all about. |
Standard for Imminent Harm. These guidelines require DHS to cease prosecution of cases in which a subject cannot be shown to face imminent risk of harm. But DHS routinely ignores this legislative constraint and, in the several cases presented to The Tennessee Law Times, has stretched trivial cases into investigations taking several months. Consequently, DHS’ Adult Protective Services has expropriated for itself absolute power to prolong its investigations and snoop around at the taxpayers’ expense. As the British historian Lord Acton once said, “Absolute power corrupts absolutely.”
Legislative Oversight Failures. A number of state legislators are to blame for the continuing lack of oversight over DHS’s overreaching behavior. For many years, state Rep. Joe Armstrong (D – Knoxville) formerly chaired the House Health and Human Services Committee. Armstrong continuously refused to allow the family member or the 79-year old patient to testify before his committee on DHS’s overreaching behavior with its Adult Protective Services. On six separate occasions, Armstrong rebuffed the family’s offer. Perhaps Armstrong did not want to hear direct criticism of DHS by highly articulate and educated witnesses, or perhaps Armstrong was embarrassed that a patient labeled by a licensed Tennessee nursing home social worker as so mentally impaired he required 24-hour nursing home care would indeed have the mental capacity to testify before a committee of the Tennessee General Assembly.
Similarly, state Rep. Dennis Ferguson (D – Kingston), the current chair of the committee, wrote to the patient’s family that then DHS Commissioner Angela Metcalf said her department’s staff did not engage in overreaching behavior. Ferguson was satisfied to take Metcalf’s word for it (over the objections of several of his own constituents in Roane County).
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A number of Tennessee state senators advised the patient’s family that they had received numerous complaints about overreaching and overbearing behavior by Adult Protective Services staff. |
In contrast, a number of state senators advised the patient’s family that they had received numerous complaints about overreaching and overbearing behavior by Adult Protective Services staff. In a subsequent article, The Tennessee Law Times would like to highlight the positive changes in oversight, if any, that these legislators will implement with respect to DHS.
Mildred Yarberry Case. Regrettably, this composite true story is not an isolated case of DHS overreaching behavior. In the Mildred Yarberry case reprinted in the section on trial court opinions, a courageous Knox County chancellor stood up to DHS violations of their own governing statutes for protective services and ordered DHS to release a senior citizen that DHS had seized and placed in a nursing home against her will. The facts in this case are stated clearly in the chancellor’s opinion. Two points deserve special mention.
First, in this case DHS unquestionably encountered living conditions in the patient’s home that most readers would find appalling: roach infestation, rotten food in the refrigerator and on the front porch, unsanitary bathroom, living areas in various states of disarray. However, neither the readers nor DHS has the right to say in what level of cleanliness a senior citizen in Tennessee must live or that a citizen of Tennessee must, in the final year of her life, give up the only home she has known.
Second, although DHS professed to have “good intentions” towards Mildred Yarberry, they seized her against her will and without any warning, they confined her in a nursing home against her will, and DHS adopted the attitude that Mildred Yarberry, like so many of the other helpless victims of DHS overreaching behavior, was mentally impaired and therefore whatever she stated that she wanted could be legitimately ignored. DHS did not respect the “risk of imminent harm” statutory obligation in this case, nor do they respect that obligation in other cases they are investigating at the present time.
DHS did not respect the “risk of imminent harm” statutory obligation in this case, nor do they respect that obligation in other cases they are investigating at the present time. |
Felt Confined to a Prison. Mildred Yarberry said that she felt she was in a prison while confined against her will in the nursing home, but DHS did not care. Her elderly brother pleaded with the court to let her sister return home and said he would do what he could to assure she was well, but DHS was not moved by the wishes of family members or next of kin. Mildred Yarberry went into deep depression at the nursing home and had given up on life, but DHS was content to have her die in the nursing home prematurely rather than let her live out her life as she desired: in her own home.
DHS Leaves Patient Penniless. Readers should put themselves in the place of Mildred Yarberry. Suppose you are aware your mind is failing, although you may not be aware of the extent of your own limitations. DHS seizes you against your will and confines you to a nursing home. DHS seizes your social security checks and every possible source of income you have. You are trapped. You do even have the money to pay for a taxi ride back home. You do not know who to call for assistance; you are helpless. In all likelihood, DHS will attempt to take ownership of your house, sell it, and use the proceeds to pay for the $120/night cost of the nursing home, which you do not want. You will lose your home and all your possessions – all in the name of doing what is best for you. Under those circumstances, it is clear why patients seized by DHS feel they have been robbed of every cent they own and why families feel DHS is burdening them with nursing home bills that could drive them into bankruptcy.
Get Houses Cleaned. The state legislature needs to equip DHS and its Adult Protective Services unit with more assistance to those in need and less draconian solutions. DHS should be able to arrange for “meals on wheels” to be brought to people who cannot cook for themselves. Instead of seizing an elderly person in an unclean house, DHS should arrange for the house to be cleaned. It comes down to whether Tennessee is going to respect the dignity of each individual or continue to threaten and force elderly people into nursing homes against their will.
© Copyright 2007 by Michael A. S. Guth. All Rights Reserved. No portion of this article, including this web page, may be copied, retransmitted, reposted, or duplicated in significant portion without the express written permission of Dr. Michael Guth. Users are always welcome to establish links to this web page or to quote from it freely.
EXHIBIT 2: IN THE CHANCERY COURT FOR KNOX COUNTY, TENNESSEE
State of Tennessee
Department of Human Service:
Petitoner:
Vs.
Mildred Yarberry,
Respondent:
June 29, 2000.
Findings of Fact And Conclusions of Law
CATE, Chancellor. This matter is before the court on the complaint of State of Tennessee Department of Human Service to provide protective services to respondent, Mildred Yarberry, pursuant to T.C.A. § 71-6-101, et. Seq.
Ms. Yarberry was taken into custody of DHS on September 30,1999, was placed at the Serene Manor Nursing Home. She came under the care of Dr. Richard W. Robinson, a staff physician with that facility, who testified by deposition.
Ms. Sheila Kite, is the social counselor with the Knox County Of DHS, testified that she had followed with Ms. Yarberry for several months prior to her being taken into DHS, custody. Ms. Kite’s testimony showed that Ms. Yarberry did suffer from some degree of dementia and that she was unable to attend to the activities of daily living. Specifically, she was unable to cook for herself and unable to keep her house and her person clean. Furthermore, Ms. Kite testified that Ms. Yarberry, who is a chain smoker, was careless in her smoking habits in that she left burning cigarettes around the house.
She furthermore, testified that the house was cluttered and roach infested. There was evidence of spoiled food in the refrigerator and on the front porch. For some time the Mobile Meals delivered food to Ms. Yarberry through the week. She received a number of other services from various home assistance agencies prior to her being placed at Serene Manor. In this case, the Department acknowledges that it must prove by a preponderance of the evidence that Ms. Yarberry is in need of protective services, that in the absence of those services she will be in imminent danger of irreparable physical or mental harm and that she lacks the capacity to consent to protective services.
The Department relies upon the testimony of Dr. Robinson to establish from a medical standpoint that Ms.Yarerry lacks capacity to consent to DHS services and that she faces imminent danger of irreparable physical or mental farm if she does not receive such services. Dr. Robinson testified that within minutes of his first contact with Ms.Yarberry he determined that she was suffering from dementia to the extent that she was unable to make rational sound judgments concerning her health and physical care.
He is concerned that she will not take her medication but, in the end his primary concern is her smoking habits. Ms. Yarberry, according to Dr. Robinson, does not agree that she needs any help and Dr. Robinson feels that this is evidence of poor judgment on her part.
Dr. Robinson agrees that her lack of personal hygiene does not create a life-threatening situation nor does it create the risk of irreparable physical or mental harm. If she fails to take her medication then Dr. Robinson is of the opinion that her dementia would be accelerated. He concedes that with medication the disease will gradually progress and that the only associated harm with failure to medicate is the acceleration of the condition.
Ms. Yarberry initially declined to appear for the hearing in this cause. The Court, however, was of the opinion that Ms. Yarberry’s testimony was essential and requested her presence on June 29, 2000, for in-chambers examination by counsel and the Court Respondent along with her brother, Elmer Grimes, appeared on this date and testified.
Ms. Yarberry stared that she considered herself as being incarcerated.
Continually referred to the nursing home as a jail. She stated that she would rather die than be forced to stay there and expressed an earnest desire to be allowed to go home. Ms. Yarberry had some difficulty communicating because of slurred speech her brother attributes to the mini-strokes she has suffered in the past. She also has a very loose fitting lower denture which contributes to her speech problems. On one occasion she stated that she would let no no one but, Ms. Kite, the DHS worker, check on her if she was allowed to go home. Later she stated that she would be willing to accept DHS services. When asked how would care for herself? She replied “The best I can”.
She denied that she is unsafe in her smoking habits but acknowledged that there are burn marks on her floors. She stated these had accumulated over time and her brother confirmed this.
She stated that she would accept help getting her house straightened back up. Mr. Grimes testified that the house had been broken into four time since she was taken into DHS custody and many of her household items had been stolen. He said Ms. Yarberry was very despondent over the loss of items, such as her television and her microwave.
Respondent testified that she had a pill dispenser that allowed her to keep track of her daily medications. She testified that she did in the past and would in the future take her medication as prescribed. Mr. Grimes felt his sister should be allowed to go home where she “has lived all her life”. He felt she was grieving herself to death at the nursing home. He offered to check on her frequently and to arrange for someone to live with her, although he was very vague on the details.
Mr. Grimes himself suffers from health problem that may impede his ability to assist respondent. Further, he is extremely hard of hearing which coupled with Ms. Yarberry’s speech problem makes it somewhat difficult for them to communicate. It should be noted that Ms. Kite testified that in the past she had solicited Mr. Grimes aid in caring for his sister and was told that due to his own health problem he could barely care for himself much less take care of her. Without question, Ms. Yarberry is living in a cleaner and safer environment at the nursing home. There have been concerns expressed about her eating habits but the Court notes that there is no indication either at the time she was taken into custody of DHS or at the present that she suffers from any degree of malnutrition. Of course, Dr. Robinson expressed no immediate concern for malnutrition resulting from her eating habits.
In State Department of Human Services V. Northern, (Tennessee Ct.App. 1978) the Court of Appeals examined the terms “imminent danger” and “capacity to consent”. There the Court defined the term imminent danger of death as meaning conditions calculated to and capable of producing within a short period of time a reasonable strong probability of resultant cessation of life if conditions are not removed or alleviated.
Capacity to consent means “mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts”. Id at page 209 Based upon personal observation of the respondent and after carefully considering her testimony, the Court concludes that she indeed lacks the capacity to consent to DHS services in that she does not the ability to perceive and appreciate all relevant facts and to reach a rational judgment upon such facts.
There is no question that Ms. Yarberry needs the assistance of DHS services or other services and further no question but that she lacks the ability to perceive that need. In this case there so no immediate threat of cessation of life to Ms. Yarberry so the definition of imminent danger must be applied to physical harm as opposed to death.
Accepting the Court of Appeals definition of imminent danger this Court holds the State has the burden of proving by a preponderance of evidence that Ms.Yarberry, if allowed to return to her home, would face conditions calculated to and capable of producing within a short period of time a reasonably strong probability of irreparable physical harm.
Even though the concerns of Ms. Kite and Dr. Robinson are well founded there is no proof in this case that Ms. Yarberry’s smoking habits create condition calculated to and capable of producing within a short period of time a reasonably strong probability of resultant irreparable physical harm. While it unquestionably is in Ms. Yarberry’s best interest to receive DHS services, her best interest is not the issue in this case. The Legislature has cloaked the Department of Human Services with an overwhelming authority over the person of citizens of this State over the age 60. however, that authority has been tempered by imposing a burden upon the State to prove, although only by a preponderance of evidence, that there exists a reasonably strong probability of resultant irreparable physical harm if conditions are not removed or alleviated. The proof in this case fails to even establish that it is more likely than not that Ms. Yarberry, who has been a long time smoker, will suffer some irreparable physical harm as a result of her smoking. At best, if such imminent danger exists, the danger is relatively mild.
If Ms. Yarberry was left under the care of DHS there is no question that would be kept in a cleaner, safer environment. There is likewise no question that she would be better fed and better cared for than if she is released from the nursing home.
Thus, the Court finds that Ms. Yarberry is in need of the services of DHS, lacks the capacity to consent to such services, and is in a relatively mild danger of suffering irreparable physical or mental harm. The Court, accordingly, finds that custody in a nursing home is not appropriate under the circumstances and orders that Ms. Yarberry be released from Serene Manor at the earliest possible date, dependent upon when her residence can be restored to a livable condition. However, DHS may continue to provide such services at home as may be necessary and the release from the nursing home is conditioned upon Ms. Yarberry’s continued cooperation and the assistance from her brother, Mr. Grimes.
Counsel for respondent is to prepare the judgment in this case after consultation with counsel for the Department. Should counsel be unable to agree upon the language of the order, or if further matters need to be brought to the Court’s attention, than counsel is to arrange for an in-chamber meeting with the Court.
EXHIBIT 3: DECLARATION OF MARTIN GOSS
· I am a trained C.N.A., and my brother served 10 years as a Fire Fighter and first responder.
· I have been unemployed and able to give my grandmother full and continuous good care.
· We took very good care of our grandmother, as we did not have to have wound care until she had an adverse reaction to a treatment. A dressing used by nursing staff Duoderm (Denise and Joan) 11/24/08 and again on 11/28/08 duoderm melted to her sacrum.
· The care we gave my grandmother was so good that it surprised (Dr. Schuchmann). He stated at 1/7/09 appt.”The wound is surprisingly clean”
· We continued to get positive feedback at her 1/12/09 appt. (Dr. Schuchmann) “I felt like on her last visit that it was tunneling significantly cephalad and we were going to need to open it, but coming in today I do not really feel any tunneling. “
· Today 1/26/09 I asked (Dr. Schuchmann) at her appt. if Wound Vac could be used on my grandmother. He said her wound still looked good and pink and thought. We should continue Dakin’s wet-to-dry
· Beginning 2/09/09 Dr. Schuchmann began making confusing statements that were outright lies. He states that “As a matter of fact, she was still in the same sheets that she had been wrapped in when the EMT’s transported her last week. She had the same dressing on her wound and was covered in feces.” My grandmothers wound was at her sacrum and therefore got fecal matter in it naturally.
· My grandmother had bowel movement constantly and always during transport to appts.
· Dr. Schuchmann admits “It is not felt that this will heal without the diverting colostomy, so she had started bowel prep yesterday 2/19/09.”
· I am not surprised that she may have been covered in fecal matter because my grandmother has chronic bowel movements. I am surprised that Dr. Schuchmann would say that the sheets and bandage were the same given the fact that we continued to do Dakin’s wet-to-dry dressings per his instruction. We did not even see Dr. Schuchmann the week prior to 2/9/09. The last appt we attended was 1/26/09. Joyce the R.N. nurse came by and changed the bandages after doing Dakin’s wet-to-dry 2/4/09. We continued to follow those orders until these impossible charges were made and acted upon. We have the transport invoices which attest to this fact as well as Dr. Schuchmann lack of notes for this period.
· I can only think that Dr. Schuchmann is very confused. He also accuses us of taking my grandmothers pain medicines, and she does not even take pain medicines at home. I am really concerned with Dr. Schuchmann’s judgments and/or motives at this point. I shared these concerns and information with Joanne Lahman-Stein the Adult Protective Services agent whom came to my house. Joanne Lahman-Stein told me based on her inquiry was not going to take any action.
· I was again surprised when I was contacted by another Adult Protective Services agent on April 1, 2009, at first I believed it was a prank. She claimed she had met us two years ago. She demand that my grandmother be placed in a nursing home or DHS would attempt to exert control over her and confine her against her will to a nursing home. My grandmother was previously in a nursing home from the summer of 2007 until 10/31/08. She received appalling care. In June of 2008 she was admitted to Ft. Sanders medical center where she was suffering from malnutrition, dehydration, stage 2 decubitis on her sacrum, and three different kinds of urinary tract infections.
· My grandmother told a Fort Sander Notary and me, what advanced directives and agents she wanted. The agent was known to neither my grandmother nor I, and she certified my grandmother appeared to be of sound mind and under no duress, fraud, or undue influence when she signed the Health Care Power of Attorney and appointed me her Attorney in Fact.
· IN THE CHANCERY COURT FOR KNOX COUNTY, TENNESSEE
STATE OF TENNESSEE
DEPARTMENT OF HUMAN SERVICES,
Petitioner,
vs. No: 174748-3
ELEANOR HILL,
Respondent.
NOTICE OF MOTION
TO: Tennessee DHS
Please take notice that I will appear before the Honorable Mike Moyers, Chancellor, Knox County Chancery Court on April ___, 2009, at 9:300 AM to argue the attached Motion to Dismiss; Request for Appointment of Special Prosecutor.
Respectfully submitted, this ____ day of April, 2009.
Certificate of Service
I certify that I mailed a true and exact copy of this Notice on April ___, 2009, to the attorney for Tennessee DHS: Butch Ashley, TN DHS, 531 Henley Street, Suite 210, Knoxville, TN, 37902, or by email to address ____________________________________; court appointed guardian ad litem James Enson, 618 S. Gay Street, Suite 300, Knoxville, TN, 37902 or by email to address ______________________________________________________.
_______________________________
Martin Goss, Health Care Attorney in Fact for Respondent
This document was prepared with the assistance of Tennessee attorney Michael A. S. Guth, Ph.D., J.D., phone (865) 483-8309. Dr. Guth does not represent any party and will not be entering an appearance in this case.
LEGAL HELP, PRO SE ASSISTANCE
Parties representing themselves in court without an attorney
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