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Norcisa v. Department of Health & Social Services

Supreme Court of Delaware

March 25, 2014

GRACE L. NORCISA, Appellant Below, Appellant,
v.
DEPARTMENT OF HEALTH AND SOCIAL SERVICES, and THE MERIT EMPLOYEE RELATIONS BOARD, Appellees Below, Appellees.

Submitted: February 28, 2014

Court Below—Superior Court of the State of Delaware, in and for Kent County C.A. No. K13A-03-001

Before HOLLAND, BERGER and RIDGELY, Justices

ORDER

Randy J. Holland Justice

This 25th day of March 2014, upon consideration of the parties' briefs and the record below, [1] it appears to the Court that:

(1) The appellant, Grace Norcisa, filed this appeal from a Superior Court order affirming the decision of the Merit Employee Relations Board ("MERB" or "the Board"), which upheld the decision of Norcisa's employer, the Department of Health and Social Services ("DHSS"), to terminate Norcisa's employment. Among other things, Norcisa claims that the MERB erred by denying her request to continue the hearing and by rejecting certain documents from inclusion in evidence. Norcisa further claims that the MERB's decision is not based on substantial evidence. We find no merit to the appeal. Accordingly, we affirm.

(2) From 2006 until her termination on January 15, 2010, Norcisa was employed as a lab technician at the Stockley Center in Georgetown, Delaware. The Stockley Center is operated by a division of DHSS and provides rehabilitative training, healthcare, and residential services for patients with developmental disabilities. As a lab technician, Norcisa's responsibilities included drawing blood from patients and submitting the blood samples, along with requests for testing, to an outside facility where the tests would be conducted on the samples. Tests could only be authorized by a physician or nurse; Norcisa could not authorize any tests herself. After an initial test was ordered, a physician could later authorize "add-on tests" to be conducted on the previously submitted blood sample. Add-on tests also required prior authorization from a physician or a nurse before Norcisa could request them. At the time of the event in question, the Stockley Center had no disseminated policy for recording the authorization of add-on tests, however, it was common practice to authorized the add-on tests in writing. If verbal authorization was given for add-on tests, the authorization would be reduced to writing at a later time.

(3) In July of 2009, one of the facility's patients was SR, [2] who had severe developmental disabilities, suffered from a variety of physical ailments, and was considered medically fragile. SR received treatment from several of the facility's physicians, including Dr. Kelly and Dr. Shoukry. On July 2, 2009, Dr. Shoukry ordered initial testing on blood drawn from SR. On July 13, 2009, Norcisa signed a request for several add-on tests. There was no written record of who authorized the add-on tests, the results of which were negative. On July 13, 2009, Dr. Shoukry ordered that a second round of blood be drawn from SR for further testing. On July 21, 2009, Norcisa signed a request for further add-on testing. These add-on tests could not be conducted because the second blood sample was not large enough. Again, there was no record of who authorized the add-on tests.

(4) In August of 2009, Norcisa had a conversation with Carlene Bond ("Bond"), a registered nurse employed at the Stockley Center, regarding SR's medical treatment. During the conversation, Norcisa allegedly told Bond, "[t]he doctors are missing something with [SR] . . . I can't believe they are not being more aggressive in finding out what it is. On the last blood drawn from her, I even added more tests . . . just to check on my own."[3] A few weeks later, Bond reported the alleged conversation to Marie Hitchens, the Nursing Supervisor at the Stockley Center.

(5) Based on Bond's report to Hitchens, DHSS initiated an investigation to determine whether Norcisa in fact had requested unauthorized add-on tests. Norcisa denied the allegations. On December 8, 2009, DHSS sent Norcisa a pre-termination letter informing her that DHSS intended to terminate her employment on the basis of requesting unauthorized add-on tests, which DHSS claimed amounted to misconduct, fraud, misappropriation of Medicare and Medicaid funds, and the practice of medicine without a license. On January 15, 2010, DHSS terminated Norcisa's employment at the Stockley Center.

(6) On January 26, 2010, Norcisa filed a Merit Appeal with the MERB and requested a hearing before the Board as well as a hearing before Human Resources Management ("HRM") in the office of Management and Budget. On April 21, 2010, the HRM officer upheld Norcisa's dismissal, finding just cause for her termination. Norcisa's MERB hearing was originally scheduled for November 18, 2010, but was continued numerous times based on requests from both Norcisa and DHSS.

(7) Norcisa's MERB hearing ultimately was held on January 30, 2013. The MERB excluded three of Norcisa's seventeen proffered exhibits. Those documents—a written reprimand for Norcisa's unexcused absences, Norcisa's pre-termination statement, and physician order sheets pertaining to a patient other than SR—were excluded as irrelevant. One of Norcisa's intended witnesses, Dr. Judith Bailey, failed to appear for the hearing despite the issuance of a subpoena. Norcisa's counsel requested another continuance of the hearing. The Board requested a proffer of the witness' testimony. Norcisa's counsel proffered that Dr. Bailey would have testified that verbal orders for add-on tests were not always recorded on physicians' order sheets, and, in her opinion, some of the add-on tests performed on SR's blood samples were appropriate given the patient's medical conditions. Norcisa's counsel further explained that Dr. Bailey would not have testified that she was the physician who authorized the add-on tests. The Board, by a vote of 3-2, denied Norcisa's request for a continuance.

(8) DHSS introduced testimony from both Dr. Kelly and Dr. Shoukry, SR's treating physicians. Each testified he did not authorize the add-on tests and would not have authorized the add-on tests because the tests were not appropriate given SR's medical condition. DHSS also called Nurse Bond who testified about Norcisa's comments that she had requested the add-on tests on her own because she thought the doctors were missing something.

(9) Norcisa testified that she had been verbally authorized to request the add-on tests via telephone but had not written down the verbal authorization because she was never trained to do so. Norcisa also testified that a nurse and a doctor authorized the tests, but she could not recall their names. On cross-examination, counsel for DHSS pointed out that Norcisa's testimony contradicted all of her various earlier statements, which had indicated, alternatively, that she had no idea who ...


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