Opinion
CV160632261
05-13-2016
Susan Tyrol-Bagcal v. CT Department of Developmental Services et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR IMMEDIATE STAY (101.00)
James W. Abrams, Judge.
This is an appeal of a decision by the Department of Developmental Services (" DDS") and Commissioner Morna Murray (" the Commissioner") that resulted in the plaintiff Susan Tyrol-Bagcal's name being placed on DDS's Abuse and Neglect Registry (" the Registry"). By Motion dated February 9, 2016, the plaintiff seeks an immediate stay of the order placing her name on the Registry until such time as this appeal is resolved. The Court denied the plaintiff's February 18, 2016 request for a hearing on the request for stay. The defendants filed a Memorandum in Opposition dated February 19, 2016 and the plaintiff filed a Reply Memorandum dated March 4, 2016. The defendants filed a Sur-Reply Memorandum dated March 9, 2016 with permission of the Court.
I
FACTS
The parties' filings reveal the following uncontroverted facts: The plaintiff was a registered nurse employed by Oak Hill School. She was the " on call" nurse on September 2, 2013, when a residential client burned herself with hot coffee. Over the course of the next two days, the plaintiff received a series of calls from residential staff seeking medical advice regarding the treatment of the client's injuries. At no time during this period did the plaintiff personally observe the client. On September 5, 2013, staff members at the client's day program were sufficiently concerned about her injuries that they set in motion a series of events that resulted in the client receiving treatment at an urgent care facility and being sent home. The same day, the plaintiff was placed on administrative leave. Several days later, the client was admitted to the hospital as a result of her injuries.
On October 9, 2015, a hearing was held before a hearing officer pursuant to Connecticut General Statutes § 17a-247b(e) on the issue of whether the plaintiff's name should be placed on the Registry as a result of the aforementioned incident. The Registry consists of the names of " individuals who have been terminated or separated from employment as a result of substantiated abuse or neglect." C.G.S. § 17a-247b(a). The hearing was conducted pursuant to the Uniform Administrative Procedure Act, C.G.S. § § 4-177 through 181 a as required by C.G.S. § 17a-247b(e). The hearing officer issued a proposed decision that concluded that the plaintiff's name should not be placed on the Registry. On January 6, 2016, the Commissioner issued a final decision reversing the hearing officer's decision and ordering that the plaintiff's name be placed on the Registry: " After review of the proposed decision and the case file including the exhibits, I do not concur with the Findings of Fact and the Conclusion of the hearing officer." Final Decision, p. 1. On February 9, 2016, the plaintiff filed an appeal of the Commissioner's decision with this court pursuant to C.G.S. § 4-183.
II
DISCUSSION
" An application for a stay [of an administrative ruling] may be made to the agency, the court, or both." C.G.S. § 4-183(f). The factors the court must consider in determining whether a stay is appropriate in this case are: 1) The likelihood that the plaintiff will prevail on the merits of her appeal; 2) The irreparability of the injury the plaintiff will suffer from the immediate placement of her name on the Registry; 3) The effect of a stay on DDS and the Commissioner; and 4) The public interest involved. Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 456, 493 A.2d 229 (1985).
A) Is the Plaintiff Likely to Prevail on the Merits of her Appeal?
Upon review of the parties' briefs and supporting documentation, the court is of the opinion that both parties possess colorable claims. This determination, coupled with the fact that the hearing officer and the Commissioner reached different results based on the same set of facts, leads the court to the conclusion that the plaintiff has a legitimate possibility of prevailing on her appeal.
The court is reticent to share any specific analysis of the evidence or legal arguments supporting each party's position so as to avoid making those conclusions " the law of the case." " The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal citations omitted.) Breen v. Phelps, 186 Conn. 86. 99, 439 A.2d 1066 (1982).
B) Will the Plaintiff Suffer Irreparable Injury if her Name is placed on the Registry during the Pendency of her Appeal?
The plaintiff argues that she will suffer irreparable harm as the placement of her name on the Registry " materially affects [her] reputation." Plaintiff's Motion for Immediate Stay dated February 9, 2016, ¶ 6. " A finding that a substantial probability of irreparable harm exists requires a two part analysis: 1) whether there is a substantial probability that the alleged harm will result; and 2) whether the harm, if it occurs, will be irreparable." International Association of Firefighters, Local 786 v. Serrani, 26 Conn.App. 610, 616, 602 A.2d 1067 (1992). Clearly, the plaintiff's situation satisfies the first part of the analysis as her name remaining on the Registry during the pendency of her appeal unquestionably will harm her ability to secure employment as a registered nurse in facilities or agencies which are subject to the Registry and presumably consult the Registry when vetting new hires. It is the second part of the analysis that is more problematic for the plaintiff as it is difficult for the court to conclude that the anticipated harm will prove irreparable; if the plaintiff prevails on her appeal, her name will be removed from the Registry and it will not serve as an impediment to her securing employment in the field.
The contents of the Registry are otherwise confidential. C.G.S. § 17a-247b(c).
C) What Effect Will the Granting of a Stay Have on DDS and the Commissioner and What Public Interest is Involved in Deciding Whether to Grant the Stay?
While a legitimate possibility exists that the plaintiff will prevail on her appeal and succeed in having her name removed from the Registry, it is equally possible that the court will find that a " substantiated [finding of] abuse or neglect" supported the Commissioner's ruling. C.G.S. § 17a-247b(a). Allowing a person subject to such a finding to keep her name off the Registry during the pendency of her appeal does not serve the public interest as it could have a deleterious effect on DDS and the individuals it serves. While the court is sympathetic to the obstacles the Commissioner's ruling places before the plaintiff in her ability to earn a living in her chosen field during the pendency of her appeal, this concern is outweighed by the public interest in not having a person subject to finding of substantiated abuse and neglect, a finding that has a legitimate possibility of being upheld, working with individuals served by DDS during that period.
III
CONCLUSION
For the foregoing reasons, the defendant's Motion for Stay is hereby denied.