{ "id": 4157261, "name": "TERESA ELSHOFF, Petitioner v. NORTH CAROLINA BOARD OF NURSING, Respondent", "name_abbreviation": "Elshoff v. North Carolina Board of Nursing", "decision_date": "2008-03-18", "docket_number": "No. COA07-599", "first_page": "369", "last_page": "375", "citations": [ { "type": "official", "cite": "189 N.C. App. 369" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "182 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1971, "pin_cites": [ { "page": "350", "parenthetical": "\"An act is done willfully when it is done purposely and deliberately in violation of law ... or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason.\"" }, { "page": "350" }, { "page": "350" }, { "page": "350" } ], "opinion_index": 0 }, { "cite": "279 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566776 ], "year": 1971, "pin_cites": [ { "page": "296", "parenthetical": "\"An act is done willfully when it is done purposely and deliberately in violation of law ... or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0288-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-171.37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "141 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1965, "pin_cites": [ { "page": "474", "parenthetical": "\" 'Wil[l]ful' as used in criminal statutes means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.\"" }, { "page": "474" }, { "page": "474" }, { "page": "474" } ], "opinion_index": 0 }, { "cite": "264 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572977 ], "year": 1965, "pin_cites": [ { "page": "349", "parenthetical": "\" 'Wil[l]ful' as used in criminal statutes means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0348-01" ] }, { "cite": "549 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "870", "parenthetical": "\"Willful conduct is done with a deliberate purpose.\"" }, { "page": "870" }, { "page": "870" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434696 ], "year": 2001, "pin_cites": [ { "page": "403", "parenthetical": "\"Willful conduct is done with a deliberate purpose.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0398-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-40-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2007, "pin_cites": [ { "page": "(7)", "parenthetical": "\" 'Willful' means in relation to an act or omission which constitutes a violation of this Article with actual knowledge or belief that such act or omission constitutes such violation and with specific intent to commit such violation.\"" }, { "page": "(7)" } ], "opinion_index": 0 }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "895", "parenthetical": "internal citations and internal quotations omitted" }, { "page": "895" }, { "page": "895" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "660", "parenthetical": "internal citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "402 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539448, 2545427, 2542900 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0098-03", "/nc/328/0098-01", "/nc/328/0098-02" ] }, { "cite": "397 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527049 ], "year": 1990, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0498-01" ] }, { "cite": "428 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546306, 2547331, 2545603, 2548111, 2548528 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0461-01", "/nc/333/0461-02", "/nc/333/0461-05", "/nc/333/0461-03", "/nc/333/0461-04" ] }, { "cite": "423 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "332", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523125 ], "year": 1992, "pin_cites": [ { "page": "162", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0158-01" ] }, { "cite": "21 N.C. Admin. Code 36", "category": "laws:admin_compilation", "reporter": "N.C. Admin. Code", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-171.37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(8)" }, { "page": "(8)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 680, "char_count": 15011, "ocr_confidence": 0.764, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13541928506256543 }, "sha256": "4702ad296b1003950c6bcba810ff76f66f8f2b500f2faaa7f9c190f7ca843869", "simhash": "1:89036f43997e2070", "word_count": 2444 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and JACKSON concur." ], "parties": [ "TERESA ELSHOFF, Petitioner v. NORTH CAROLINA BOARD OF NURSING, Respondent" ], "opinions": [ { "text": "STROUD, Judge.\nPetitioner appeals order of the superior court affirming the decision and order of the North Carolina Board of Nursing which issued petitioner a letter of reprimand, required petitioner to complete course work, and issued petitioner a probationary license. The dis-positive question before this Court is whether the North Carolina Board of Nursing erred in not granting petitioner\u2019s motion to dismiss for the insufficiency of the evidence because respondent failed to show petitioner willfully violated any rules enacted by the North Carolina Board of Nursing. For the following reasons, we reverse and remand.\nI. Background\nPetitioner was a registered nurse who was providing home care to patient B.T. Petitioner alleged the following: B.T. had recently been released from a hospital. Petitioner first saw B.T. on or about 11 August 2004 and conducted a medication profile, a physical exam, and a patient interview. B.T. was 81 years old and was taking several prescription medications, including a psychotropic medication, Seroquel, which is used to treat schizophrenia. On or about 13 August 2004, petitioner called B.T. and told her that she realized she did not have B.T.\u2019s medication profile and asked to come to B.T.\u2019s home to retrieve it. When petitioner arrived at B.T.\u2019s home, a neighbor, Ms. Cook, opened the door and escorted petitioner inside the home.\nMs. Cook, the Board\u2019s sole witness to the interaction, testified that petitioner looked in the den and then B.T. suggested that petitioner look on the kitchen table. Petitioner went in the kitchen and opened drawers and cabinets, looking inside them. Petitioner then went to look in the living room and when B.T. objected, petitioner came out of the living room.\nPetitioner testified that when she arrived at B.T.\u2019s home, she noticed that B.T.\u2019s Oxycodone was not with her other medications. Petitioner alleged she began searching through B.T.\u2019s home because she was concerned about the missing Oxycodone as B.T. might be taking it inappropriately. Petitioner testified she was unable to find the missing medication. After petitioner\u2019s visit, B.T. was extremely upset and afraid for other medical personnel to visit her home.\nOn or about 25 February 2005, petitioner received a letter from the North Carolina Board of Nursing (\u201cBoard\u201d), which stated petitioner \u201cmay not be safe and competent to practice nursing or [she] may have violated the Nursing Practice Act.\u201d The letter went on to state that petitioner\u2019s \u201cactions in [B.T.\u2019s] home threatened and intimidated the patient.\u201d The letter gave petitioner the option to have an administrative hearing, have a settlement conference, or to be issued a \u201cletter of reprimand\u201d and a probationary license.\nAn administrative hearing was scheduled for 27 October 2005. Petitioner made motions to dismiss at the outset of the hearing, at the close of respondent\u2019s case, and at the close of all of the evidence; all three motions were denied. On or about 27 October 2005, the Board ordered petitioner to be issued a \u201cletter of reprimand,\u201d to complete an ethical/legal decision making course with emphasis on therapeutic communications within three months, and to be issued a probationary license.\nOn or about 9 March 2006, petitioner filed an amended petition for judicial review in Superior Court, Wake County and also requested the matter be remanded to the Board with instructions to dismiss the charges. On 8 March 2007, the superior court, inter alia, denied petitioner\u2019s motion to remand and affirmed the decision of the Board. Petitioner appeals.\nII. Willfulness\nPetitioner assigns error to the Board\u2019s denial of her motion on the insufficiency of the evidence as respondent failed to show petitioner willfully violated any rules enacted by the Board pursuant to N.C. Gen. Stat. \u00a7 90-171.37. We agree.\nThe Board argues that \u201c[i]t is absolutely the role of the [Board] to determine from the evidence of Record whether Appellant\u2019s search for the missing medication had a harassing or intimidating effect on Patient B.T.\u201d (emphasis added). Thus, the Board essentially contends that if petitioner\u2019s actions had a \u201charassing or intimidating effect\u201d on B.T., petitioner has violated 21 N.C. Admin. Code 36.0217(c)(10), even if there is no evidence that petitioner willfully intended to harass or intimidate B.T. and even if petitioner\u2019s actions were in keeping with her assigned job duties. The Board also argues that the Court should give deference to the Board\u2019s interpretation of its own rules, see Best v. N.C. State Bd. of Dental Examiners, 108 N.C. App. 158, 162, 423 S.E.2d 330, 332 (1992) (citation omitted), disc. rev. denied, 333 N.C. 461, 428 S.E.2d 184 (1993), and thus uphold the Board\u2019s final decision and order.\n\u201cA review of whether the agency decision is supported by the evidence, or is arbitrary or capricious, requires the court to employ the whole record test.\u201d Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1990), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991).\nWhen the trial court applies the whole record test... it may not substitute its judgment for the agency\u2019s as between two conflicting views, even though it could reasonably have reached a different result had it reviewed the matter de novo. Rather, a court must examine all the record evidence \u2014 that which detracts from the agency\u2019s findings and conclusions as well as that which tends to support them \u2014 to determine whether there is substantial evidence to justify the agency\u2019s decision. Substantial evidence is rel-' evant evidence a reasonable mind might accept as adequate to support a conclusion.\nN.C. Dep\u2019t. of Env\u2019t and Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) (internal citations and internal quotations omitted).\nN.C. Gen. Stat. \u00a7 90-171.37 allows the Board to discipline licensees \u201cin any instance or instances in which the Board is satisfied that the . . . licensee . . . [h]as willfully violated any rules enacted by the Board.\u201d N.C. Gen. Stat. \u00a7 90-171.37(8) (2003). \u201cBehaviors and activities which may result in disciplinary action by the Board include . . . harassing, abusing, or intimidating a client either physically or verbally[.]\u201d 21 N.C. Admin. Code 36.0217(c)(10).\n\u201cWillfully[,]\u201d as used in N.C. Gen. Stat. \u00a7 90-171.37, is not specifically defined; however, the term \u201cwillful\u201d and its derivatives has been defined several times within other contexts by the legislature and the judiciary. See generally N.C. Gen. Stat. \u00a7 58-40-5(7) (2007) (\u201c \u2018Willful\u2019 means in relation to an act or omission which constitutes a violation of this Article with actual knowledge or belief that such act or omission constitutes such violation and with specific intent to commit such violation.\u201d); Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 403, 549 S.E.2d 867, 870 (2001) (\u201cWillful conduct is done with a deliberate purpose.\u201d); Brewer v. Harris, 279 N.C. 288, 296, 182 S.E.2d 345, 350 (1971) (\u201cAn act is done willfully when it is done purposely and deliberately in violation of law ... or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason.\u201d) (internal citations and internal quotations omitted); State v. Arnold, 264 N.C. 348, 349, 141 S.E.2d 473, 474 (1965) (\u201c \u2018Wil[l]ful\u2019 as used in criminal statutes means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.\u201d).\nBlack\u2019s Law Dictionary defines \u201cwillful\u201d as\n[proceeding from a conscious motion of the will; voluntary. Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.\n[a]n act or omission is \u2018willfully\u2019 done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.\nBlack\u2019s Law Dictionary 1434 (5th ed. 1979) (emphasis added).\nTherefore, to survive petitioner\u2019s motion to dismiss based upon the insufficiency of the evidence, the Board must present evidence that petitioner willfully committed actions or said words with the purpose or intent to harass, abuse, or intimidate a client either physically or verbally and that the client was actually harassed, abused, or intimidated. See N.C. Gen. Stat. \u00a7 90-171.37; N.C. Admin. Code 36.0217(c)(10); see generally, N..C. Gen. Stat. \u00a7 58-40-5; Sawyer at 403, 549 S.E.2d at 870; Brewer at 296, 182 S.E.2d at 350; Arnold at 349, 141 S.E.2d at 474; Black\u2019s Law Dictionary 1434.\nIn the present case, there is no dispute that B.T. was very dis- ' tressed after petitioner\u2019s visit. However, the subjective effect of one person\u2019s actions upon another individual is not the test for willfulness. The trial court took no new evidence, but affirmed the Board\u2019s conclusions including:\nThe act of opening drawers and cabinets; and going in and out of rooms through the patient\u2019s home, visibly upset Patient B.T. Ms. Elshoff ignored Patient B.T.\u2019s reaction to her search and by doing so, intimidated Patient B.T.\nThe act of opening drawers and cabinets; and going in and out of rooms through the patient\u2019s home violates the patient\u2019s privacy and space; and this act constitutes harassment.\nThe licensee has violated G.S. 90-171.37(8) in that she did willfully violate Regulation 21 N.C.A.C. 36.0217(c)(ll) in the manner found below.\nThe licensee did willfully violate Regulation 21 N.C.A.C. 36.0217(c)(ll) in that she did harass or intimidate a client, either physically or verbally, as evidenced by the fact that during Ms. Elshoff\u2019s second visit to Patient B.T., she was opening drawers and cabinets, and going in and out of rooms through the patient\u2019s home which visibly upset Patient B.T.; and she ignored Patient B.T.\u2019s reactions to this search, and by doing so, intimidated Patient B.T.\nThe licensee did willfully violate Regulation 21 N.C.A.C. 36.0217(c)(ll) in that she did harass, abuse or intimidate a client, either verbally or physically, as evidenced by the fact that during Ms. Elshoff\u2019s second visit to Patient B.T.\u2019s home, she was opening drawers and cabinets, and going in and out of rooms in the patient\u2019s home, violating the patient\u2019s privacy and space; therefore, these acts constitute harassment.\nThe evidence is uncontroverted that petitioner willfully opened drawers and cabinets and otherwise searched in B.T.\u2019s home for the Oxycodone. However, no evidence was presented to support a finding that petitioner\u2019s search for the medication was for the purpose or intent to harass, abuse, or intimidate B.T., which is required pursuant to N.C. Gen. Stat. \u00a7 97-171.37 and N.C. Admin. Code 36.0217(c)(10). See N.C. Gen. Stat. \u00a7 97-171.37; N.C. Admin. Code 36.0217(c)(10). N.C. Dep\u2019t. of Env\u2019t and Natural Res. at 660, 599 S.E.2d at 895. There is not substantial evidence that petitioner acted willfully, i.e., \u201cwith specific intent to commit [a] violation,\u201d \u201cwithout justification or excuse,\u201d \u201cpurposely and deliberately in violation of law\u201d or \u201c[ijntending the result which actually [came] to pass.\u201d See N.C. Gen. Stat. \u00a7 58-40-5(7); N.C. Dep\u2019t. of Env\u2019t and Natural Res. at 660, 599 S.E.2d at 895; Brewer at 296, 182 S.E.2d at 350; Arnold at 349, 141 S.E.2d at 474; Black\u2019s Law Dictionary 1434.\nWe cannot conclude that \u201copening drawers and cabinets and going in and out of rooms through a patient\u2019s home\u201d constitutes willful harassment, abuse, or intimidation of a patient, where there is no evidence that the petitioner performed these actions with any intent to harass, intimidate, or abuse the client in any way. Some evidence of purposefulness, deliberateness, intent, or the like on the part of petitioner to harass, abuse, or intimidate B.T. must be shown in order to find petitioner \u201cwillfully violated any rules enacted by the Board.\u201d See N.C. Gen. Stat. \u00a7 90-171.37(8); see generally N.C. Gen. Stat. \u00a7 58-40-5; Sawyer at 403, 549 S.E.2d at 870; Brewer at 296, 182 S.E.2d at 350; Arnold at 349, 141 S.E.2d at 474; Black\u2019s Law Dictionary 1434.\nAs a home health care nurse, petitioner was dealing with an elderly and perhaps confused patient who became extremely upset by petitioner\u2019s actions, yet there is no evidence that petitioner\u2019s actions were willfully intended to harass, abuse, or intimidate B.T. In fact, one of petitioner\u2019s job duties was to keep track of B.T.\u2019s medications, for B.T\u2019s own benefit and protection. It would be no different if B.T. had become upset because petitioner had performed a painful but necessary medical service upon B.T., such as giving B.T. an injection; B.T. may have in fact felt that she was abused, but a \u201cwillful\u201d act of caring for a patient is not converted into a willful act of harassment, abuse, or intimidation solely because, as a result or effect of the wilful act, the patient becomes upset. None of the evidence, nor even the Board\u2019s findings of fact, supports a conclusion that petitioner acted willfully to harass, abuse, or intimidate B.T. Petitioner\u2019s motion to dismiss based upon the insufficiency of the evidence should have been granted.\nIII. Conclusion\nFor the foregoing reasons, we reverse and remand to the Superior Court, Wake County for further remand to respondent to dismiss its proceeding against petitioner. As we are reversing the trial court order it is unnecessary to address petitioner\u2019s remaining assignments of error.\nREVERSED AND REMANDED.\nJudges TYSON and JACKSON concur.\n. We assume that (11) is a typographical error in the order, as pursuant to the language of the conclusions it is clear that the Board found petitioner to have violated 21 N.C.A.C. 36.0217(c)(10) which is \u201charassing, abusing, or intimidating a client either physically or verbally\u201d rather than 21 N.C.A.C. 36.0217(c)(ll) which is \u201cfailure to maintain an accurate record for each client which records all pertinent health care information as defined in Rule .0224(f)(2) or .0225(f)(2)[.]\u201d See 21 N.C. Admin. Code 36.0217(c)(10)-(ll) (2003).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Patrice Walker for petitioner-appellant.", "Allen and Pinnix, P.A. by M. Jackson Nichols and Mary B. Shuping for respondent-appellee." ], "corrections": "", "head_matter": "TERESA ELSHOFF, Petitioner v. NORTH CAROLINA BOARD OF NURSING, Respondent\nNo. COA07-599\n(Filed 18 March 2008)\nNurses\u2014 disciplinary action \u2014 evidence of willfulness insufficient\nPetitioner\u2019s motion to dismiss disciplinary actions against her by the Board of Nursing should have been granted where there was no evidence that her search for her patient\u2019s Oxycodone was for the purpose of or intent of harassing, abusing, or intimidating the patient, as required by statute and administrative rule. An act of patient care is not converted into a willful act of harassment, abuse, or intimidation solely because the patient becomes upset.\nAppeal by petitioner from order entered 8 March 2007 by Judge John R. Jolly, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 15 November 2007.\nPatrice Walker for petitioner-appellant.\nAllen and Pinnix, P.A. by M. Jackson Nichols and Mary B. Shuping for respondent-appellee." }, "file_name": "0369-01", "first_page_order": 401, "last_page_order": 407 }