appointing authority has burden of proving existence of just cause for removal of employee
How later courts described this case
- appointing authority has burden of proving existence of just cause for removal of employee
Written by the judges who cited it.
The opinion
SILVESTRI, Senior Judge,
dissenting.
I address myself solely to the allegations relating to the improper treatment of J.M. on September 18, 1989. The record indicates that prior to extracting two of J.M.’s wisdom teeth, Dr. Hoon made no specific inquiries regarding J.M.’s general behavior, level of functioning or ability to understand and follow directions for care of his extraction sites. Further, Dr. Hoon failed to give any verbal or written post-operative instructions to staff personnel regarding the supervision or treatment of the extraction sites. When confronted with this charge, Dr. Hoon did not dispute the allegation, but argued that the staff on duty should have been able to handle the bleeding problem and, thus, instructions were not necessary.
Based upon what they deemed the “completely credible” testimony and “very impressive credentials” of Dr. Theodore R. Paladino, the expert witness for Dr. Hoon, the Commission found that Dr. Hoon’s treatment of J.M. was in *225 accordance with proper dental procedures and concluded that the evidence did not establish Dr. Hoon failed to provide adequate dental care. 1 The majority agrees and summarily dispenses with this issue. However, in doing so, both the Commission and majority fail to distinguish between the applicable medical standard of care for treatment of dental patients and for treatment of exceptional or mentally incapacitated dental patients.
What the Commission fails to recognize is that the charge against Dr. Hoon was not that his treatment of J.M. fell below accepted dental standards, but rather that Dr. Hoon failed to perform in an appropriate manner with respect to treatment of, in this case, a profoundly retarded individual, thus failing to meet performance standards expressed in the client care policy of Western Center and expected of employees working for Western Center.
The Western Center client care policy prohibits abuse, mistreatment or neglect of clients. Within the confines of the client care policy, an act of abuse is defined as “an act or an omission which causes or may reasonably be expected to cause physical or psychological pain to a client____” The policy also indicates that non-action which results in injury is viewed in the same manner as improper or excessive action. The policy explains that acts of abuse or omission are absolutely prohibited and are cause for disciplinary action including dismissal. Ignoring a need is an example of non-physical abuse according to the policy. The action or inaction of Dr. Hoon with respect to treatment of J.M. is *226 clearly violative of the express client care policy in existence at Western Center.
However, the majority chooses to ignore the distinction between treatment in accordance with general dental standards and failure to satisfy express written standards in the client care policy of Western Center, finding it is within the province of the Commission “to resolve evidentiary conflicts and issues of credibility.” By so finding, the majority fails to perform the function of the judiciary, namely to protect the rights of a patient who lacks decision-making capacity. It is the tradition of courts of this Commonwealth to serve as proponents for the powerless and to protect those individuals who cannot protect themselves.
The failure of Dr. Hoon to determine J.M.’s mental understanding prior to treatment and to provide proper instructions to staff to insure adequate post-operative care clearly relate to job performance and establish just cause for Dr. Hoon’s termination.
. In their discussion, the commission refers to the conclusion by Dr. Paladino that "the medical treatment provided by the appointing authority (Western Center) professional staff was 'deplorable.' ” R.R. 216. The Commission later states "[t]he evidence shows that the appointing authority’s medical staff were derelict in their duties and responsibilities toward J.M.” and finds Dr. Hoon “was made the scapegoat for the medical staffs’ failure to properly evaluate J.M.'s condition and provide him with proper medical care.” R.R. 217. Such statements by the Commission are uncalled for, irrelevant, and superfluous. The sole issue before the Commission was the propriety of Dr. Hoon’s action or inaction with respect to the treatment of J.M. Treatment provided by the appointing authority staff was not at issue.