HomeMy WebLinkAbout09-23-05
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1 INDEX TO WITNESS
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3 FOR PETITIONER DIRECT CROSS REDIRECT RECRC SS
4 Herbert E. Myers, M.D. 4 13 16 --
5 Samantha Hernandez 18 24 28 --
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7 FOR RESPONDENT DIRECT CROSS REDIRECT RECRC SE
8 Clarissa Elizabeth Jones 29 35 -- --
9 Arlene Davies 40 46 -- --
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INDEX TO EXHIBITS
FOR PETITIONER
Ex. No. 1 - certification
IDENTIFIED
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ADMITTED
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(The following proceedings were held at 11:00 a.m.)
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THE COURT: We have a physician on the phor e?
MS. BAHL: That is correct, Your Honor.
THE COURT: What's his name?
MS. BAHL: Dr. Herbert Myers.
THE COURT: Dr. Myers, can you hear me?
DR. MYERS: Yes, I can.
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THE COURT: I am Judge Bayley. If you'll
11 raise your right hand, my stenographer will swear you in.
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DR. MYERS: I affirm, please.
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HERBERT E. MYERS, M.D.,
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having been duly affirmed, testified as follows:
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THE COURT: Counsel may proceed.
17 ---------
18 DIRECT EXAMINATION
19 BY MS. BAHL:
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Q
Please state your name and spell it for thE
21 record.
22 A My name is Herbert E. Myers -- that's
23 M-Y-E-R-S M.D.
24 Q Where did you graduate from medical school
25 A I graduated from Temple University School cf
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Medicine.
Q When did you graduate?
A That would have been in 1970.
Q Did you complete an internship?
A Yes, I did.
Q Did you complete a residency?
A Yes. I've actually completed two
residencies, one in family practice and the other in
psychiatry.
Q Are you board certified?
A Yes, I am board certified in both family
practice and psychiatry. I only practice psychiatry.
Q When did you obtain your certifications?
A My family practice certification was in 19 6,
and my psychiatry certification was in 1993.
Q Have you maintained your board
certifications?
A Yes, I have.
Q What states are you licensed to practice
medicine?
A I'm only actively licensed to practice
medicine in Pennsylvania.
Q And your license is in good standing?
A Yes, it is.
Q Do you regularly care for nursing home
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patients?
A Yes. That's my primary occupation.
Q Do you have any affiliation with Beverly
Healthcare Camp Hill located in Camp Hill, PA?
A Yes, I'm a psychiatric consultant there.
Q Is Nellie Tabb currently your patient?
A Yes, I have seen her in consultation.
Q Miss Tabb currently resides in the Camp Hi 1
facility; is that correct?
A That's correct.
Q For how long has she been your patient,
Doctor?
A The first time I saw her was on January 13th
of this year.
Q When was the last time you saw or evaluatec
Miss Tabb?
A The last time would have been July 21st of
this year.
Q Can you please describe what a visit with
Miss Tabb might be like?
A Well, most of the times when I have seen hEr,
she has described her moods as being angry and disgusted;
and she has also seemed that way. She believed that she ~as
being held in the home against her will. As part of that
dislike, she was at many times refusing evaluations and
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treatment, both mental and physical and was very -- staff
would report would be verbally abusive to them.
Q And when you say verbally abusive, can you
describe further any situations or incidents that you're
aware of?
A Apparently when they would try to do care,
she would yell at them, order them out of her room. And Ehe
actually has done the same with me when I tried to evaluate
her on a number of occasions.
Q Do you have any idea why she would behave
this way, Doctor?
A Could you repeat that question, please?
Q Why would she behave this way, Doctor?
A It appears to me after seeing her a number of
times and attempting to do an assessment that she suffers
from much suspiciousness and paranoia, including paranoid
delusions both toward the staff at the home as well as her
own family.
Q Can you give us some more information
regarding her mental status?
A Yes. I finally was able on June 2nd to
complete a mini mental examination. And actually on that,
she scored 29 out of 30 points, so she did not appear to
have any at least major cognitive deficits on that screening
examination. However, on a number of occasions, she has
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expressed paranoid thoughts and delusions.
She was originally admitted to the home after
not caring for herself and developing a sore and cellulitis
of her legs. She told me she thought that her sister had a
conspiracy out that caused her to fall and caused the
injuries.
At times, she has felt that people in the
home were doing things to harass her such as having peoplE
come in and paint at night and just, you know, in general
has not wanted to take any medication that might help to
attempt to reduce this suspiciousness and help her be ablE
to comply with care even though it was prescribed for her.
Q How would you describe her cognitive or
intellectual function?
A Her basic cognitive function seems to be
intact except for the paranoia and suspiciousness. But
again, I recommended further more intensive psychological
testing, but she refused to cooperate with that.
Q Is Miss Tabb taking any medications?
A Could you repeat the question?
Q Is Miss Tabb taking any medications?
A To the best of my knowledge, she's taking ro
medication -- at least no psychotropic medication. We have
recommended them a number times, but each time she has
refused to take them.
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Q Are you able to assess her mental or
cognitive prognosis, Doctor?
A I would say without treatment, her prognos~s
is poor. And she's been in the home now since -- well, she
was admitted there, I believe, on January the 6th. I saw
her first on the 7th, and there has been no change.
In fact, the last time I saw her, you know,
she basically yelled at me and ordered me out of her room,
that she did not need to see a psychiatrist and wasn't going
to cooperate with any further evaluation, that she was under
the protection of a higher power, and that it was against
the law for us to even recommend testing or to have to take
medication.
Q Is Miss Tabb able to communicate or hold a
meaningful conversation?
A There have been times when she has held a
meaningful conversation. But at other times, her paranoia
and anger had made it difficult to have a meaningful
conversation with her.
Q Is Miss Tabb able to receive or evaluate
information effectively?
A I think this is markedly impaired by her
paranoia. She sees everything, it seems, through those
lenses; and it distorts her interpretation of things that
are told to her.
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Q So that would be a no?
A No.
Q Is her decision-making impaired?
A Yes.
Q Would you characterize that impairment as
mild, moderate, or severe, Doctor?
A I would say moderate to severe.
Q Is Miss Tabb able to make decisions regard'ng
her medical care and living arrangements?
A No, she's not been able to do. Again, we
have felt since her leg has improved that she could possitly
exist in a less restrictive setting such as assisted livirg.
But she has refused to cooperate with attempts of the social
services staff to attempt to find a place for her.
Q Is Miss Tabb able to take her medications
without the assistance of others?
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She refuses.
No.
Q Is she able to make decisions affecting her
own well-being?
A She has not appeared to be able to do that,
no.
Q Would you classify Miss Tabb as being
incompetent and incapable of making any decisions regardirg
her medical treatment?
A At this time, yes.
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Q Does Miss Tabb's condition necessitate the
appointment of a guardian to make decisions on her behalf
regarding any medical procedures that she may require?
A Yes. I believe that would be in her best
interest.
Q Has Miss Tabb executed a current durable
power of attorney or any other healthcare decision-making
document that you're aware of?
A Yes. She had an effective durable power of
attorney, but my understanding is she has since revoked
that.
Q So currently she has no effective durable
power of attorney?
A To the best of my knowledge, that's true.
Q Would Miss Tabb be able to resist fraud or
any influence without the assistance of a guardian?
A I think that would be very difficult for hEr
She would be susceptible to that.
Q So she would not be able to, Doctor?
to do.
A That's correct.
Q Would you classify Miss Tabb as being
incompetent and incapable of making any decisions regarding
her personal or financial affairs?
A At this time, that would be my judgment, YES.
Q So she cannot make any decisions regarding
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her finances?
A She cannot.
Q Does Miss Tabb's condition necessitate the
appointment of a guardian to make decisions regarding her
finances and affairs?
A Yes.
Q Does Miss Tabb require nursing home care?
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think we kind of covered this, Doctor.
A At this time, she does but again feel that
she very likely could do well in a less restrictive setting
such as an assisted living setting if she would cooperate
with that.
Q Is Miss Tabb capable of reading and
understanding the papers related to these legal proceedings?
A I think at this point that would be no. Ste
would have difficulty because of her suspiciousness and
paranoia.
Q Are your opinions expressed to a reasonablE
degree of medical certainty?
A Yes, I believe they are. And again, I havE
recommended a second opinion. But she has not agreed to
that.
Q Doctor, do you remember signing a
certification dated July 26th, 2005, regarding Miss Tabb in
this proceeding?
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A Yes, I do.
Q Do you have a copy of that in front of you:
A Yes, I do.
MS. BAHL: Your Honor, I'm marking this
Petitioner's 1, the certification of Doctor Myers. It's
also attached to the petition that we filed in this case as
Exhibit A.
BY MS. BAHL:
Q Doctor, by signing the certification, you
indicated that it is your opinion to a reasonable degree cf
medical certainty that Miss Tabb is in need of a plenary
guardian over her person and estate; is that correct?
A That is correct.
Q Does your opinion set forth in this
certification still hold true today?
A Yes.
MS. BAHL: Your Honor, I would like to mOVE
for admission of Petitioners Exhibit No.1 into the record.
THE COURT: It's admitted.
MS. BAHL: And I have no further questions at
this time of this witness, Your Honor.
CROSS EXAMINATION
BY MS. ADAMS:
Q Doctor, this is Jane Adams. I'm the attorrey
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for Nellie Tabb.
questions.
I would just like to ask a few brief
A Okay.
Q How many times have you actually seen Nell~e
Tabb?
A I have seen her a total of five times, and my
associate who covers for me saw her on one occasion. So ty
our staff, a total of six times since January.
Q And it's your testimony all you really did on
her was a mini mental assessment. You weren't able to
perform a psychological or psychiatric examination?
A That's correct. I recommended that, but sfe
refused.
Q Are you able to diagnosis her as paranoid of
you weren't able to perform any tests on her?
A Diagnosis can be based on clinical evaluat'on
and her presentation as well as testing. It would be nicE
to have testing to confirm that; but I think with the
consistency with her behavior as well as her thoughts
expressed to myself, her family, and staff that the
diagnosis is made with a reasonable degree of certainty.
Q So you feel comfortable making this
diagnosis
A Yes.
Q -- even with this limited information you
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have?
A Yes.
Q And no other tests were done other than thE
mini mental examine?
A That's correct.
Q Wouldn't the fact that she made a decision
she didn't want medication indicate she could make these
sorts of decisions?
A Well, it appears that she would do much
better -- very likely would do much better if she was taking
medication, that this would reduce her paranoia and
suspiciousness and enable her to cooperate with care and
possibly her family who also want to relate to and help hEr.
Q And you are aware she revoked a prior powel
of attorney?
A Yes, I am.
Q And doesn't that also indicate she might bE
able to make decisions and not be susceptible of fraud of
other family members or other guardian?
A At this point, there's been no evidence of
fraud. It appears that that's related to her paranoia, ard
it seems like the revoking of her power of attorney may also
relate to paranoia rather than a wise decision.
Q Okay. So you don't see that as an indicat'on
that she's able to make decisions regarding her affairs?
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A No, I don't.
Q Now, you're aware that the Petitioner's
requesting a specific entity to be appointed as Nellie's
guardian?
A Yes.
Q Do you think it would be more reasonable ard
more helpful for Nellie if she were able to pick a guardicn
of her choosing?
A I think at this point her ability to ChOOSE
seems to be impaired by me. It certainly is ideal in a
situation where someone is responding reasonably and
normally. But at this point, I'm not sure she could make a
reasonable decision.
Q Okay. Do you think she would be more
cooperative with someone that she might be familiar with?
A I would hope so.
MS. ADAMS: Thank you. That's all I have.
THE COURT: Any redirect?
MS. BAHL: Yes, Your Honor, I do.
REDIRECT EXAMINATION
BY MS. BAHL:
Q Doctor, would you say that she is familiar
with her sister?
A Could you repeat the question?
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Q Would you say she is familiar with her
sister, knows her sister?
A Is familiar with her sister?
Q Yes.
A Yes, she has been. Although by the sister s
statement, she has become more isolated from the family ir
recent years. But she certainly was familiar with her
sister and had one time entrusted her to be power of
attorney.
Q She has since revoked that, hasn't she,
Doctor?
A That's correct.
Q So wouldn't you say that is an indication cf
her paranoia?
A Yes.
MS. BAHL:
THE COURT:
Thank you, Doctor.
Anything else, Miss Adams?
MS. ADAMS: No, Your Honor.
THE COURT: Doctor, you're excused. Thank
you. Next.
MS. BAHL: Your Honor, I would like to cal
Samantha Hernandez to the stand.
SAMANTHA HERNANDEZ,
having been duly sworn, testified as follows:
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1 DIRECT EXAMINATION
2 BY MS. BAHL:
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4 spell it.
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11 background?
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13 in sociology.
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Please state your name for the record and
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Samantha Hernandez, H-E-R-N-A-N-D-E-Z.
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By whom are you employed?
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Beverly Healthcare Camp Hill.
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What is your position?
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Social service director.
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What is your professional and educational
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I have a Bachelors in psychology and a miner
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Are you familiar with Nellie Tabb?
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Yes.
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In what way?
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She's a resident at our facility, and I'm
18 also her social worker.
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20 in this case?
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Why has Beverly become involved as petitiorer
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Because currently right now Nellie does not
22 have a power of attorney and there is no guardian and we
23 need someone to be able to make decisions for her on her
24 behalf.
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Q
How long has Miss Tabb been a resident of
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your facility?
A Since January this year, 2005.
Q It is my understanding that Miss Tabb is
70-years-old; is that correct?
A That is correct.
Q Are you familiar with her physical
conditions?
A Yes.
Q But you're not a doctor, are you?
A No.
Q But could you please explain what you know of
her in layman's terms and make observations as to her
personality traits?
A Well, with personality, she has refused cale.
She has refused medications. As far as just events,
something as simple as getting vitals, the last thing that
we have currently on the chart is March of this year. ShE'S
really not benefitting from our facility with getting any
medical care because we're really not giving her any
treatment because she's not allowing it.
As far as her personality goes and her mental
status, she does have severe paranoia. Due to that, that I
do think impairs some of her judgments. She has yelled at
our staff repetitively as well as residents that have livEd
with her in the room to a point where we cannot have
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residents that are cognitive and of sound mind with her
because she just gets severely paranoid to the family and to
the residents commenting if anyone is coming in
administering care.
She's also at one point thrown things at
staff. She does -- she's kind of obsessive with, I think,
germs to a certain extent. If you go into the room, you
know, with her permission, she, you know, doesn't want
anything around her food, things like that.
Due to infection -- infection control, we ere
mandated by the State to have deep cleanings in the room.
At this time when, you know, she's given much notice, she's
put out in the hallway, she always has a blanket over her
head. I think that's a good bit --
Q Beverly Enterprises is not petitioning to te
the guardian of Miss Tabb in this matter; is that correct?
A That is correct.
Q Do you agree that whoever is appointed
guardian may decide to take her out the facility?
A Yes.
Q Is there any evidence in her chart of a
living will or a current advanced directive for healthcarE?
A No.
Q Is there any evidence in her chart of a
current durable power of attorney or other document
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1 indicating a decision maker for her healthcare or personal
2 finances?
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No.
But as it was stated earlier, she did
4 have her sister as power of attorney and, from my
5 understanding, it's not just Miss Tabb but her sister alsc
6 revoked the power of attorney.
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Do you know why the sister revoked her powEr
8 of attorney?
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I believe from the meetings that I've had
10 with the families that they're at a point where they feel
11 that they've done everything possible to help her and
12 because of the paranoia and the accusations of Miss Tabb ES
13 far as financial thinking that the sister has, you know,
14 stolen money and, you know, things like that, you know, ste
15 does not feel that there's anything else that they can do
16 with her. As well as with financial she has also had
17 paranoia with also.
18 On numerous occasions when I first started
19 working there talking to Miss Tabb, she, you know, had
20 claimed that we were misusing Medicare and things like that.
21 And it was explained to her that she's currently on medical
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assistance, and she did not want to believe that.
She got
23 very angry with me, threw me out of the room, and told me
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she's not on welfare.
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Q
You said that her sister -- she accused her
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sister of stealing money from her; is that right?
A That's correct.
Q Is there any evidence to indicate that that
had happened?
A No.
Q Have you given Miss Tabb a copy of the
petition for the appointment of a guardian that has been
filed here today?
A That's correct.
Q Can you explain what happened when you
presented that petition to her?
A When I went in to discuss it with Miss Tabt,
she immediately started getting very paranoid. When I reed
the first word citation, she wanted to know what she was
being cited for. She got very upset and angry. I had
gotten a page; and I explained to her -- I said, I'll be
right back.
I came back in. She's on the phone with - I
believe who she was talking to was Arlene Davis who was a
coworker. She explained, I need a witness. I know my
rights. I should have a witness. I explained to her that
that is fine; but because of time lines with court, I wanted
to make sure she had enough time to get proper
representation and she would have her right to, you know,
come and, you know, be here for this court date.
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So I explained to her, if you're going to
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a witness, we need to have it in a timely manner because
3 need to read this to you by such and such a date. Arlene
4 did come in that day in the afternoon. We had a meeting
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from one to three.
She also, I think, brought a neighbor;
6 and all three woman and myself went through every single
7 document word for word. And Miss Tabb signed off on it aE
8 well as Arlene and Arlene's friend I think was Nicky.
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Do you think Miss Tabb understood the
10 contents of the documents?
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I think Miss Tabb understood to a certain
degree as far she knew she was having a court hearing.
Sre
13 knew she was going to have a court date; but because of tre
14 paranoia, I don't think she cognitively understood to the
15 certain degree that it is about guardianship and whether Ehe
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is incapacitated or not.
She immediately, you know, feelE
17 it was a conspiracy, it's against her because she's a
18 hostage and we will not let her go --
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Okay.
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-- and we are trying to control her.
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And she -- do you think she understood the
22 contents after explanation?
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Not fully, no.
MS. BAHL: Your Honor, I would like to havE
25 marked as Exhibit 2 proof of notification.
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THE COURT: Well, we know that there's
service because everybody is here.
MS. BAHL: All right. Well, I will move
then, Your Honor. I have no further questions of this
witness, Your Honor.
THE COURT: All right. Cross-examine.
01
CROSS EXAMINATION
BY MS. ADAMS:
Q Can you please tell me the efforts that
anyone made to explain to Nellie Tabb the meaning of the
forms and the treatment and the things that they're
requesting of her?
A Treatments. Can you define that?
Q I think it was said that medical treatment
was requested. Did anybody take the time or the effort tc
sit down with Miss Tabb and explain to her why this was
needed?
A Well, like I stated before, I'm not a medical
professional.
So I can't, you know -- you know, state whet
our health professionals would do. But I know that any tOme
something as simple as vitals, we have a certified nursine
assistant come in. They work very well with all of the
residents. They explain I'm coming in to get your
temperature, I'm coming in to get your blood pressure, ane
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1 explain, you know, the necessity for that.
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So it's your statement 'that someone did tr~
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Yes.
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-- to explain that?
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I would stand by that.
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And she still refused treatment?
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Yes.
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Q
Were any efforts made to explore any other
10 options of a caseworker to help her or to sort of bridge the
11 gap in communication with her?
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Yes. I was hired by Beverly in March. By
13 the time my training and stuff was done, I really started
14 working the facility at the end of March, early April. I
15 immediately became social worker to Miss Tabb. She was
16 really one of the first residents that I started working
17 with directly. I could tell that she was very unhappy
18 there. I started immediately trying to get her transferrEd
19 to other nursing facilities.
20 She had then mentioned to me that she only
21 wanted to reside in Dauphin County because that's where sle
22 had previously lived. I explained to her at that point tlat
23 in doing that that would limit our options as far as gett'ng
24 her accepted. I had faxed at least to five skilled nursirg
25 facilities packets of information, nursing documents,
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1 therapy notes, everything that any admissions director wOLld
2 require.
3
No one has accepted her. On top of that
4 besides just skilled nursing facilities, the family also
5
attempted assisted livings.
She was not accepted at any
6 assisted livings. And even more so, there was a program
7 called Center for Independent Living. Being new to this
8 field, I was trying to get as much information as I could
9 also as well as for Miss Tabb.
10 I had Shalana Stacks, a caseworker for then,
11 come in. And I took her to meet with Miss Tabb; and Miss
12 Tabb threw us both out of the room, was yelling and
13 screaming. We rescheduled the appointment, and Miss Tabb
14 did meet with Shalana. And what Center for Independent
15 Living is they take people that are in a skilled nursing
16 facility and they're able to get them in the community with
17 assistance from, like, the waiver programs and things likE
18 that.
19 Miss Tabb because of her paranoia would no
20 give any information to the caseworker as far as income.
21 She kept saying to the caseworker, Why are you asking me
22 these questions? I'm not giving you any of my income. Wrat
23
is this all about? Things like that.
So due to my efforts
24 as far as trying to get her placed somewhere else, she wac
25 not willing to work with us to do so in that manner.
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Q But she did start with the initiation of tIe
intake, right? I mean, didn't she at least start?
A No. She would not do the intake packet wi h
her. She left the intake packet with Miss Tabb that if sre
wanted to fill that out at a later date then she would do
that.
Q Did you see any reasonable reason why Nell e
would have been suspicious of this person?
A No. It was fully explained by myself to M ss
Tabb that this was a positive thing. This was to grant hEr
wishes to get her back out into the community which is whet
she wanted. She wanted to get another apartment and thin~s
of that nature and that there would be assistance for that
for her.
Q Were there any other attempts to reach
someone in the community or someone to communicate better
with Miss Tabb that might be a better fit with her?
A From the Department of Health, Area of Agirg,
our staff, Philhaven, Dr.Myers, you know, everyone has beEn
involved.
Q But no one was found that could communicatE
with her?
A No one has been successful as far as meetirg
her needs.
MS. ADAMS: Okay. Okay. Thanks. That's ell
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I have.
THE COURT: Any redirect?
REDIRECT EXAMINATION
BY MS. BAHL:
Q But they did -- all did try to communicate
with her; is that correct?
A That's correct.
Q And she refused to communicate?
A She refused or was found unsubstantiated a so
with the police department as well.
MS. BAHL:
THE COURT:
MS. BAHL:
No further questions, Your Honol.
You may step down.
Your Honor, I planned on calline a
third witness, Bernice Morales. And I don't see that she
has made it here at this point in time, and she was from
Neighborhood Services. The -- the proposed guardian, Verron
Fisher, he does run the facility -- the facility did sign a
consent which is attached. And that's essentially what sre
was going to testify to.
THE COURT: I'm familiar with it.
MS. BAHL: So should she make it -- she die
call for directions at 10:00. And I'm assuming she is 10Et.
I would like to call her should she still make it in time.
THE COURT: We would allow you to do that.
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MS. BAHL: Thank you, Your Honor.
2
MS. ADAMS: Your Honor, my client is
3 obviously in opposition to the petition. In the event thct
4 a guardian is appointed, she would like to choose a
5 guardian. And we have Claire Jones who would be able to
6 testify that she is able to work with Miss Tabb and appoil t,
7 you know, to find somebody of her choosing that she would be
8 able to cooperate with.
9
THE COURT: You want to call witnesses?
10
MS. ADAMS: Yeah, maybe just briefly. I
11 would call Miss Jones.
12
THE COURT: Do so.
13 ---------
14 CLARISSA ELIZABETH JONES,
15 having been duly sworn, testified as follows:
16 DIRECT EXAMINATION
17 BY MS. ADAMS:
18
Q
Miss Jones, can you please state your full
19 name?
20
A
Yes. My name lS Clarissa Elizabeth Jones.
21
Q
And what do you go by?
22
A
I go by Claire.
23
Q
Okay. Do you know Nellie Tabb?
24
A
Yes, I do.
25
Q
How do you know her?
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A Miss Tabb made -- I am the president of thE
greater Harrisburg NAACP, Your Honor. And I know Miss Tatb
because she made a contact with us about ten days ago to csk
for assistance. She wanted assistance in identifying an
attorney for herself and in making arrangements to leave the
Beverly system and find an assisted living situation on tre
East Shore.
Q
Okay.
In your communications with Miss Ta)b,
does she seem cognitive?
A Miss Tabb -- we've spent three hours -- a
total of three hours together. She was cognitive. There
has been no dimunition in intelligence. There have been
some discussion of what happened to some money of hers anc
her sister. We haven't had a chance to explore that for
veracity one way or the other. But obviously, we could look
at bank records and determine whether $20,000.00 have gono
to her sister. We have not had an opportunity do that ye .
Q Do you feel that you have a good relations~ip
with Miss Tabb, that you can communicate her?
A I believe so, and I think it's in part
cultural. Miss Tabb is a lady of a certain age, African
American. And I grew up with such ladies in my family un't,
and they have to be approached with a certain amount of
respect and dignity.
And there are simply things that one does ~ot
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do in terms of them. When I met Miss Tabb, for instance, I
had the nursing home -- one of the individuals corne to thE
door and tell her who it was. And I asked permission to co
into her room.
Q So if you had to help Miss Tabb with her
financial affairs, do you think she would be responsive?
A She has been responsive thus far. The thilgS
that she's asked us are reasonable, prudent things that m
grandmother would ask, and they've been asked in a
conventional way.
We talked about life in general. She has
been aware of what's going on around here including the
awful problems in Florida and even today that people from
Florida have been -- are now being taken care of by an AM~
Bethel Church in Harrisburg and wasn't that wonderful tha
people reached out to them.
Q Has she ever seemed paranoid in your
presence?
A She has seemed restless.
like to leave the Beverly Nursing Horne.
She very much would
I think there ar=
-- there's some mixed interpretation whether something wa3
done to annoy her or whether it was simply situational.
While I was there, twice the lady in the rJom
with her -- I don't know her name -- but the lady had a
bowel discharge. And the Beverly people cleaned it up, blt
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there was still for the 45 minutes I was there an odor
lingering in the air.
And I finally went to the desk and wanted 0
know 45 minutes later why it was still there and she coule
note it. And they found that they had left linen in the
room. And so that was taken out, and she was complaining
about the smell that this was not an isolated incident.
Q Do you think it's reasonable that she migh
be uncomfortable or disgruntled with her care there?
A I think that someone who ran her life
successfully for over 37 years as an independent individul1
who worked all of her life to garner appropriate pension 30
she would have dignity in -- at this point in her life is
very frustrated at being in the Beverly Nursing Home syst2m.
I don't know that frustration would exist in another syst~m.
What she's going toward is independent living.
Q And Miss Tabb indicated she did not want a
guardian; is that correct?
A Miss Tabb indicated that she did not want a
guardian. I am not a psychiatrist. I worked in the human
service field for 24 years before I switched to -- to
writing grants. She appears to me to be someone who
actually could manage her own affairs and that I have a
sense that she's partially being perceived through that
prism of ageism that if you are of a certain age, you
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1 automatically don't have the ability to control yourself.
2
Q
Do you think that she could manage her own
3 affairs with the proper assistance?
4
A
I think with a little assistance that she
5
could.
I also believe that anything that she needs to ha e
6 for medication to help In getting into another nurse home
7 and she's very sure about this -- that she'd like to be 0
8
the East Shore if that's possible.
It's where she grew U1D.
9 It's closer to the people that she knew.
10
Q
If the Court does appoint a guardian, do YJU
11 think it would be beneficial to have a guardian that Nell'e
12 chooses?
13
A
Pardon?
14
Q
If the Court does appoint a guardian, do ypu
15 think that it would be in Nellie's best interest to let hpr
16 choose a guardian or someone she would be more comfortabl~
17 with?
18
A
I think that if Nellie is sure she doesn't
19
need a guardian -- and is pretty swift by my standards
if
20 that guardian is someone that the Court determines she
21 should have at this point, I think that there will be a mpre
22
supportive report if she chooses a guardian.
I also think
23 that someone with cultural sensitivity is important.
24 Let me say as diplomatically as I can,
25 primarily in the Beverly system, most of the individuals are
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Caucasian.
I have no reason to believe that they're not
nice people. I did not see not nice people there, but I
think that they may not understand some of the cultural
elements that affect how she does things.
Q Do you have any suggestions as to how this
might be handled, or do you have any suggestions of any
guardians that the Court may consider?
A I have two suggestions. One is that we COJld
help her by being a temporary guardian.
Q When you say we, who do you mean?
A The NAACP or myself if she needs a specifi~
guardian. And I'd like to look for a long-term guardian or
her if she needs one that she can interview several peopl
when she is in the East Shore situation and determine who
she has some sort of affinity with. I think that reduces
the notion of any -- of any paranoia.
Q Do you have any specific suggestions as to
who the guardian might be in the future?
A At this point, I would say suggest that -- I
would be willing to do that on a temporary basis for her.
Q Okay.
A I am not a long-term solution for -- for the
guardian situation.
Q Are there any agencies such as the one tha~
has been suggested today that primarily work on the East
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Shore?
A We are aware of that Agency, and we can he p
her get into the kind of situation that she wants to live
In. This is a person who values her dignity. She came f om
a time when you had to struggle for that dignity as a per; on
of color. And I don't think people realize how they're
chipping away at it, and I don't think they're doing it
deliberately.
But there is a kind of -- sometimes when YJu
don't have very many visitors in a hospital or a nursing
home situation, there comes a point at which staff doesn'
see you in the same way. And I don't think it's out of a~y
kind of malevolent motive. It's just the way that human
beings are.
MS. ADAMS: Okay. Thank you. You've been
very helpful.
THE COURT: Cross examine.
MS. BAHL: Yes, Your Honor.
CROSS EXAMINATION
BY MS. BAHL:
Q When did you have -- was Miss Tabb the one
who actually contacted you two weeks ago?
A First, it was Miss Davies. Then it was
Miss Tabb.
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Q
And Miss Tabb did contact you directly?
A
Yes, she did.
Q
And you've only known her for approximatel.'
4 10 days, 2 weeks?
5
6
A
Ten days approximately, correct.
Q
Ten days. In the course of your
7 investigation of Miss Tabb's circumstances, did you speak
8 with her physicians?
9
A
I have not spoken with her physicians; and I
10 only had a brief contact with Miss Blair --
11
12
13
Q
Thank you
A
-- at the nurse home.
Q
Thank you. Oh, and for the record, did yo~
14 speak with Miss Blair one-on-one?
15
16
A
I spoke with her on the telephone.
Q
Oh, on the telephone. Have you ever met
17 Miss Blair?
18
19
20
21
22
A
Yes.
Q
What color is she?
A
She would appear to be African American.
Q
Thank you?
A
And a nice lady, I might add. We had a very
23 good conversation.
24
Thank you very much. In the course of YOLr
Q
25 investigation, did you speak with her family members?
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A We have not been investigating the situati<Dn,
so I need to clarify that.
Q Okay.
A The role has been one of because of the sh)rt
amount of time, first of all, Mrs. -- Miss Tabb said that
she had received the notification of this proceeding ten
days after it was dated. And I don't know whether that is
true or untrue. Miss Davies might be able to point to th~t.
Because of the short amount of time involved,
my time has been primarily asking Miss Tabb what does she
want, what does she think she needs, that kind of thing. So
there's not been an investigation ongoing. It would be a
very different process.
Q You mentioned during direct that you're
familiar with Neighborhood Services?
A Yes.
Q But do not have an exact place or exact
guardian for her at this time long term?
A I do not have a guardian for her long-terrr
guardian for her; but I believe that a guardian that is
culturally sensitive that would be able to assess her --
Q Would
THE COURT: Wait. Let her finish her
statement.
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BY MS. BAHL:
Q I'm sorry. Continue please.
A I believe a guardian that is culturally
sensitive will be able to help her. We discussed a coupl,
of things. One is if you need medication if a doctor of
your choosing determines you need medication would you ta e
it. Her answer was yes. Would you be willing to submit 0
a second opinion psychiatric review? Her answer was yes.
Would you be willing if -- if it was
absolutely necessary to have a guardian? And her answer
was, I don't think I need one. And -- but ultimately if
had to have one she would submit to that also if she got
some choice in the matter.
So those were the questions,
he
kind of things that we talked about as well as her physic~l
well-being, how was she feeling, what would she like to dp
with the rest of her life.
And I think that statement may be germane.
She said with a sigh, on the 28th, you know, I'd like my
normal little life back. And she said, I had that for 37
years and that's all I'm really working for. And she sai~
something else. She said, Doesn't a human being have the
right to determine what will happen to that person and why
do they think simply because I've been in a nursing home
that I don't have that ability now.
Q Do you have any reason to believe that
38
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1 Neighborhood Services would not be an appropriate guardiar
2 for Miss Tabb?
3 A I have reason to think that the most posit ve
4 approach for her is for her to have a culturally
5 knowledgeable individual or group that she believes in to
6 help her. I think it's going to be much more difficult i
7 it is not that.
8 Q Do you think that Neighborhood Services wi 1
9 not be able to fulfill that need?
10 A I think again, I would refer to the samp
11 answers that this lady
12 THE COURT: Do you know the workings of
13 Neighborhood Services sufficient to answer the question?
14 THE WITNESS: I don't, but let me answer t~e
15 question this way. This lady needs a cultural bond, and 'm
16 not sure that they can provide that.
17
18
19
20
21
22 witness that has known Miss Tabb a little bit longer.
23 THE WITNESS: Okay. There was one thing I
24 forgot to say. Miss Tabb asked us to identify an attorney
25 for her so that she could choose her attorney, and that
MS. BAHL: I have no further questions.
THE COURT: Any redirect?
MS. ADAMS: No, Your Honor.
THE COURT: You may step down.
MS. ADAMS: We would have one other brief
39
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But that tas
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process was not able to be completed by today.
one of her wishes.
THE COURT: Now, you have one more witness
4 You have -- is the person from Neighborhood here?
5
6
7 proceed.
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MS. BAHL: I don't see her here, Your Hono
THE COURT: Okay. Miss Adams, you may
MS. ADAMS: Okay. I have Arlene Davis.
ARLENE DAVIES,
having been duly sworn, testified as follows:
BY MS. ADAMS:
Q
17 name?
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Q
A
Q
A
THE COURT: Have a seat.
DIRECT EXAMINATION
Ms. Davies, can you please state your full
Arlene Davies, D-A-V-I-E-S.
And do you know Nellie Tabb?
Yes, I do.
How do you know her?
I know her from having worked with her and
23 for the Commonwealth of Pennsylvania.
24
25
Q
A
How long have you known her?
I'm going to say since maybe 1986.
I can't
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4
pinpoint it exactly. But that's approximate.
Q So approximately 20 years?
A Yes.
Q Okay. You heard some of the testimony thL
morning. Do you have any reflection on her mental state?
1
2
3
5
6
A
Yes, I do. As I said, I worked with her VE ry
7
closely.
Her desk was maybe six feet from my desk. And
8 found her to be a very intelligent, very productive
9 conscious worker who sat at her desk, did her work, never
10 bothered anyone, never caused any conflict or anything el e.
11 This is my experience.
12
Q
Okay.
Just have you stayed in contact wit1
13 her recently?
14
A
Oh, yes.
She retired in '91, and I retirei
15 in '94. And we've always been in contact ever since she
16 retired.
17
Q
Since January 2005, have you gone to see h~r
18 at the nursing home?
19
A
Have I gone to the nursing home? Yes. No
20 as often as I would like to have gone. Although I have bl en
21 in phone communication with her I would say on a fairly
22 regular basis during that period.
23
Q
Okay.
24
A
In fact when I was at my daughter's in
25 Pittsburgh, I had -- I called her a couple times.
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Q
Have you ever observed her acting paranoid
2
A
Well, that's a term that I think everyone las
3
a different clarification.
I think it's very natural if
4 you're in a surrounding that you're not happy with you cotld
5
be termed severely paranoid.
So I -- I would say, yes, sre
6 has complained to me many times about things that she
7 disagreed with in the nursing home.
8 And I think there are things that are very
9 valid to -- to be disturbed about. And as a result, it's
10 created a problem for her. And I feel that as a -- the
11 dignity factor hasn't entered in here.
12 In other words, she's a very modest person as
13 people from our generation are. We don't like public bat s.
14 We don't like people interrupting us when we take a bath.
15 It's just our generation. We weren't used to taking show~rs
16 and bathing in front of other people, and I know that's b'en
17 a problem for her --
18
Q
Okay.
19
A
-- as it would be for me.
I mean, I have
20 daughters. One is a physician. One is a nurse practione .
21 They wouldn't think of bursting in the bathroom when I'm
22 taking a shower. Not that there's anything wrong with th~t;
23 but it's -- it's a -- it's a generational thing and a
24 cultural thing.
25
Q
So perhaps the generational gap may have
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1 created some of the misunderstandings and miscommunicatiors
2 with her caregivers?
3
A
I'm sorry.
I didn't hear you.
4
Q
Do you think that a generational gap may hove
5 helped to contribute to some miscommunications with her
6 caregivers?
7
A
I think so because I know when I -- when I ve
8 been at the nursing home, she objects to people just walk~ng
9
in the room.
She objects to people -- and as a matter of
10
fact, I did the first time I was there.
I just rapped
11 lightly and said, Arlene. And, you know, and then I walkEd
12 in. And I think that she does -- she doesn't like that.
13 She doesn't like people to just pull the curtain back and
14 say Rae, I'm hear.
15
Q
So you think this is just her cultural
16 preference and not necessarily paranoia?
17
A
I think it's possible it could be just purE
18 annoyance.
19
Q
Okay.
Do you -- have you observed her in the
20 last six months her doing things to take care of her own
21 affairs? Is there anything she said or that you observed
22 her that would indicate she is managing her affairs
23 properly?
24
A
Well, I know once she had her own telephonE
25 -- which I think is necessary for anyone in the nursing
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home. They must be able to contact through the outside
world. And since that time, I know she's contacted the
Pennsylvania State Employees Credit Union to open an accoLnt
with them because some of her other accounts -- one bank
purchased another bank and other things that she has triec,
I think, very effectively to take care of.
Q Okay. And so she arranged for her own
telephone, correct?
A Yes.
Q And she's used the telephone to contact barks
and other individuals to manage her affairs, right?
A Yes.
Q Okay. Were you present when the citation vas
read?
A Yes, she did call me because she --
THE COURT: Well, you were present, right?
You were present?
THE WITNESS: Yes.
THE COURT: That's fine.
BY MS. ADAMS:
Q And did she appear to understand the citat on
or the meaning of the petition?
A Did she appear what?
Q Did she appear to understand what was goinc
on?
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A
Yes. Yes. She was quite perplexed as was I.
2 I mean, I was quite shocked by the whole deal.
3
Q
You -- when you say perplexed, you mean
4 shocked?
5
A
I was -- I think she was too because --
6
Q
Okay.
7
A
She's -- she's an intelligent woman. She'
8 -- she's able to think for herself.
9
Q
So just briefly, do you think she needs a
10 guardian?
11
A
I -- that's a determination that I think s e
12 should make with people who have her interest at heart.
13
Q
But you think she can manage her own affai s?
14
A
Yes, I do. Yes.
15
Q
Thank you. That's all.
16
A
And particularly her own finances.
19
MS. ADAMS: Okay.
THE COURT: Cross-examine.
THE WITNESS: Could I just add one thing?
THE COURT: Go ahead.
THE WITNESS: I think it's so important th3.t
17
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22 the Court understand this is a human being who deserves -
23
THE COURT: Ma'am, I understand. I
24 understand that completely and fully. Now, I'm going to et
25 you be cross-examined now.
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THE WITNESS: Okay. I wanted to make that
clear.
CROSS EXAMINATION
BY MS. BAHL:
Q Isn't it true that the first time you visited
her at the facility was on August 15th of this year?
A Miss?
Q Isn't it true that the first time you visited
Miss Tabb at the facility was August 15th of this year?
A No. That is not true. Not August because it
was cold weather. As a matter of fact, I can pinpoint it
being during the wintertime because -- I think she can
verify this -- I took her hand lotion or body lotion becaLse
I felt that with that I mean, I use a lot of body loticn
during the wintertime.
And I thought that would make just a littlE
gift for her, so August 15th is not correct. As a matter of
fact, August 15th is the day the citation was read 10
days -- 10 days after it was dated --
THE COURT: You first went over in the
winter?
THE WITNESS: Pardon?
THE COURT: You first went over in the
wintertime? Next question.
46
I
.
.
1
THE WITNESS: I'm not sure of the exact date.
2 BY MS. BAHL:
3
Q
Do you think that her doctor does not have
4 her best interests at heart?
5
A
I think most doctors would definitely have
6 her interests at heart. But I -- I know what my interestE
7 are and what my interpretation of her is.
8 Q Do you think Dr. Myers has her best intere~ts
9 at heart? Do you believe that Dr. Myers has her best
10 interests at heart?
11
A
I can only assume if he is a physician. I
12 have physicians in my family. They -- normally physicianE
13 do have the interests of their patients. I can't vouch fer
14 Dr. Myers.
15
Q
Right.
16
MS. BAHL: Your Honor, I have no further
17 questions.
18
THE COURT: Ma'am, you're excused.
19
THE WITNESS: Thank you.
20
MS. ADAMS: No other witness, Your Honor.
21
MS. BAHL: And, Your Honor --
22
THE COURT: Okay. Record is closed.
23 Argument off the record. Moving party.
24
25
(The proceedings concluded.)
47
It
e
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me
the above cause and that this is a correct transcript of
same.
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
//----j
2ptJ~
./
,/
J.
'"'"
48
IN RE: NELLIE TABB
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
21-05-0681 ORPHANS' COURT
IN RE: PETITION FOR APPOINTMENT OF PLENARY GUARDIAN
OF THE PERSON AND ESTATE
ORDER OF COURT
AND NOW, this 21 day of September, 2005, John Hume, M.D. is
appointed to conduct an evaluation of Nellie Tabb for which she is ordered to cooperate.
Dr. Hume shall file a report with this court, with copies to both counsel, on whether
Nellie Tabb is incapacitated and in need of the appointment of a plenary guardian of her
./
person and/or estate.
/.-
,. .,....'
. ,
By the Court, /./"/' /
M;//
t//~
Edgar B. Bayley, J.
Begene A. Bahl, Esquire
l For Petitioner
I\.LlLlLJ Jane Adams, Esquire
CiIL~ \ D) For Nellie Tabb
l\,- ew\vUiorh
~('u" lM Dr. John Hume
LtpSi M..L0 I
:sa
;-''-~.)
, ,
. )
CJ
-
~,J I
IN RE: NELLIE TABB
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
21-05-0681 ORPHANS' COURT
IN RE: PETITION FOR APPOINTMENT OF PLENARY GUARDIAN
OF THE PERSON AND ESTATE
MEMORANDUM OPINION AND ORDER OF COURT ,.
Bayley, J., September 23, 2005:--
,,-)
At issue is whether Nellie Tabb should be adjudicated an incapacitated
........1
person and, if so, who should be appointed plenary guardian of her person.
- )
and/or her estate. A hearing was conducted on September 7,2005. Since
c)
January 6, 2005, she has resided in a nursing home in Cumberland County
operated by Beverly Enterprises-Pennsylvania, Inc., d/b/a Beverly Health Care-
Camp Hill. That facility filed this petition pursuant to 20 Pa.C.S. Section 5511 to
adjudicate Nellie Tabb an incapacitated person, and for the appointment of
Neighborhood Services as the plenary guardian of her person and estate.1
Tabb has not cooperated in a mental status examination. While a resident
at the facility, she has exhibited what petitioner describes as delusional ideation
of the paranoid type. She has refused medical treatment for the preservation of
her health and well-being. She has been extremely difficult for the staff to care
for. She is very anger at being in petitioner's facility. The facility acknowledges
I "Incapacitated person" means an adult whose ability to receive and evaluate
information effectively and communicate decisions in any way is impaired to such
a significant extent that he is partially or totally unable to manage his financial
resources or to meet essential requirements for his physical health and safety.
20 Pa.C.S. S 5501.
21-05-0681 ORPHANS' COURT
that if she was cooperative, she could be adequately cared for in a less intensive
assisted living facility.
Herbert Myers, M.D., a physician, board certified in family practice and
psychiatry, who primarily cares for patients in petitioner's nursing home, was only
able to conduct a mini-mental examination to Tabb. He offered certain opinions,
but we are not satisfied by clear and convincing evidence that Tabb is
incapacitated. Her intransigence does not necessarily reflect incapacity.
Because she has not cooperated with an evaluation by a physician employed by
petitioner, it is incumbent, pursuant to 20 Pa.C.S. Section 5511 (d), to have a
court ordered independent evaluation. We will appoint a qualified psychiatrist for
that purpose.
AND NOW, this 2/
ORDER OF COURT
day of September, 2005, John Hume, M.D. is
appointed to conduct an evaluation of Nellie Tabb for which she is ordered to cooperate.
Dr. Hume shall file a report with this court, with copies to both counsel, on whether
Nellie Tabb is incapacitated and in need of the appointment of a plenary guardian of her
,//
person and/or estate.
By the Court,
>'
.~
Edgar B. Bayley, J.
~
-2-
,;
21-05-0681 ORPHANS' COURT
Segene A. Sahl, Esquire
For Petitioner
Jane Adams, Esquire
For Nellie T abb
Dr. John Hume
:sal
-3-