Monday, September 14, 2009
Requiem For Residuum: Court Of Appeals Of Utah Finds Ruling Against Nurse Didn't Violate Residuum Rule
It is well established that rules of evidence do not apply at administrative proceedings. That is not to say, however, that such rules are irrelevant at such proceedings. For instance, hearsay is admissible at administrative proceedings, but under the residuum rule, factual findings at such a hearing cannot be exclusively based on inadmissible hearsay, as was made clear by the recent opinion of the Court of Appeals of Utah in Benitez v. Department of Health, Div. of Health Care Financing, 2009 WL 2902518 (Utah.App. 2009).
In Benitez, the Department of Health, Division of Health Care Financing conducted a formal hearing regarding allegations that Ruben Benitez, while working as a certified nursing assistant (CNA), had sexually abused a patient, N.M. After that hearing, at which the only evidence presented against Benitez were N.M.'s allegations, the Department concluded that the allegations were substantiated, and a negative finding for Benitez was placed on the state Nurse Aide Registry, which effectively precluded him from working as a CNA in Utah.
Benitez thereafter appealed, claiming that if the court set aside all hearsay evidence that was presented at the hearing, there was no residuum of evidence remaining to support the decision made by the Department. The Court of Appeals of Utah agreed with Benitez's construction of the residuum rule, but it did not agree that N.M.'s allegations were inadmissible hearsay. Instead, the court found that N.M.'s allegations were admissible as excited utterances pursuant to Utah Rule of Evidence 803(2), which provides an exception to the rule against hearsay for
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
In deeming Benitez's allegations to be excited utterances, the court focused on such facts as the startling nature of sexual abuse and the fact that N.M. made her allegations no more than an hour and a half after the alleged abuse. Thus, because the allegations were admissible, there was no problem under the residuum rule.