MAINE	SUPREME	JUDICIAL	COURT	                                           Reporter	of	Decisions	
Decision:	 2017	ME	29	
Docket:	   Was-16-33	
Argued:	   October	27,	2016	
Decided:	  February	14,	2017	
                                                                                             	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                 JOHN	S.	ZABLOTNY	
                                           	
                                          v.	
                                           	
                              STATE	BOARD	OF	NURSING	
	
	
ALEXANDER,	J.	

          [¶1]	 	 The	 State	 Board	 of	 Nursing	 (Board)	 appeals	 from	 a	 judgment	

entered	 in	 the	 District	 Court	 (Machias,	 D.	 Mitchell,	 J.)	 concluding	 that	 John	 S.	

Zablotny	 had	 engaged	 in	 certain	 activities	 that	 constituted	 professional	

misconduct	pursuant	to	32	M.R.S.	§	2105-A(2)	(2016)	as	alleged	by	the	Board,	

but	 also	 concluding	 that	 the	 Board	 had	 failed	 to	 prove	 other	 allegations	 of	

professional	 misconduct.	 	 On	 appeal,	 the	 Board	 contends	 that	 the	 trial	 court	

erred	 when	 it	 concluded	 that	 the	 Board	 had	 failed	 to	 prove	 that	 Zablotny	

committed	 professional	 misconduct	 as	 defined	 in	 32	 M.R.S.	 §§	2105-A(2)(F)	

and	(H)	when	he	did	not	fully	inform	the	on-call	physician	of—or	immediately	

notify	 law	 enforcement	 or	 the	 patient’s	 emergency	 contact	 about—the	
2	

conditions	 under	 which	 a	 patient	 was	 leaving	 the	 Down	 East	 Community	

Hospital	against	medical	advice.1		We	affirm	the	trial	court’s	judgment.	

                                             I.		CASE	HISTORY	

          [¶2]		The	tragic	events	that	generated	this	case	are	before	us	on	appeal	

for	a	second	time.		See	Zablotny	v.	State	Bd.	of	Nursing	(Zablotny	I),	2014	ME	

46,	89	A.3d	143.	

          [¶3]	 	 This	 case	 arises	 out	 of	 the	 death	 of	 a	 patient	on	 January	 1,	 2008,	

near	 the	 Down	 East	 Community	 Hospital	 in	 Machias.	 	 Five	 days	 earlier,	 the	

patient,	who	was	emaciated	and	suffered	from	several	ailments,	was	admitted	


     1	 	 In	 its	 appeal,	 the	 Board	 of	 Nursing	 cites	 32	 M.R.S.	 §	 2105-A(2)(F)	 and	 (H)	 (2016)	 as	 the	
statutory	grounds	for	discipline	that	were	violated.		The	Board’s	evidence	and	arguments	suggest	
that	 another	 subparagraph	 at	 issue	 might	 have	 been	 section	 2105-A(2)(E)	 (incompetence	 in	 the	
practice),	 though	 raising	 subparagraph	 (E)	 would	 not	 have	 led	 to	 a	 different	 result	 the	 way	 the	
evidence	 developed.	 Subparagraphs	 (E),	 (F),	 and	 (H)	 of	 the	 section	 2105-A(2)	 grounds	 for	
discipline	read	as	follows:		
	
        E.	 	 Incompetence	 in	 the	 practice	 for	 which	 the	 licensee	 is	 licensed.	 A	 licensee	 is	
        considered	incompetent	in	the	practice	if	the	licensee	has:	
        	
        							1.		Engaged	in	conduct	that	evidences	a	lack	of	ability	or	fitness	to	discharge	the	
                duty	owed	by	the	licensee	to	a	client	or	patient	or	the	general	public;	or	
        	
        							2.		Engaged	in	conduct	that	evidences	a	lack	of	knowledge	or	inability	to	apply	
                principles	or	skills	to	carry	out	the	practice	for	which	the	licensee	is	licensed;	
        	
        F.	 	 Unprofessional	 conduct.	 A	 licensee	 is	 considered	 to	 have	 engaged	 in	
        unprofessional	 conduct	 if	 the	 licensee	 violates	 a	 standard	 of	 professional	 behavior	
        that	has	been	established	in	the	practice	for	which	the	licensee	is	licensed;		
        	
        .	.	.	.		
        	
        H.		A	violation	of	this	chapter	or	a	rule	adopted	by	the	board.		
   	
                                                                                       3	

to	 the	 hospital	 with	 complaints	 of	 severe	 abdominal	 pain.	 	 While	 in	 the	

hospital,	 the	 patient	 was	 seen	 by	 physicians	 and	 several	 other	 health	

professionals	and	was	treated	with	large	doses	of	narcotics.		

	     [¶4]		On	January	1,	a	physician	checking	on	the	patient	had	no	concerns	

for	 his	 “medical	 stability”	 and	 found	 no	 “obvious	 etiology”	 for	 the	 patient’s	

reported	 pain.	 	 After	 seeing	 the	 patient	 around	 noon,	 the	 physician	 left	 the	

hospital	 but	 remained	 on	 call.	 	 Later	 that	 afternoon,	 a	 nurse	 called	 the	

physician	 to	 inform	 him	 that	 the	 patient	 was	 in	 pain	 and	 requested	 more	

medication.	 	 Suspecting	 that	 the	 medication	 could	 be	 causing	 the	 patient’s	

pain,	the	physician	ordered	a	decrease	in	the	patient’s	medications.		

	     [¶5]	 	 Around	 6:30	 p.m.,	 a	 nurse	 caring	 for	 the	 patient	 notified	 the	

nursing	 supervisor	 that	 the	 patient	 was	 confused	 and	 needed	 restraints.		

However,	the	nursing	supervisor	found	the	patient	to	be	quiet,	lucid,	rational,	

mentally	competent	and	in	no	need	of	restraints.		The	patient	told	the	nursing	

supervisor	 that	 he	 wanted	 to	 go	 home,	 and	 the	 nursing	 supervisor,	 knowing	

that	 his	 family	 had	 left,	 told	 him	 that	 he	 would	 have	 to	 sign	 the	 Against	

Medical	 Advice	 (AMA)	 form.	 	 When	 the	 patient	 asked	 for	 the	 AMA	 form,	 the	

nursing	supervisor	refused	based	on	the	patient’s	condition	and	the	weather.			
4	

      [¶6]		Zablotny	arrived	at	work	at	7:00	p.m.	as	the	nursing	supervisor	for	

the	evening	shift.		The	day	shift	nursing	supervisor	reported	to	Zablotny	her	

concerns	 about	 the	 patient	 and	 told	 Zablotny	 not	 to	 let	 him	 leave	 AMA,	 to	

which	Zablotny	responded	that	the	patient	could	leave	if	he	signed	the	form.		

      [¶7]		Zablotny	spoke	with	the	patient	who	stated	that	he	wanted	to	be	

discharged	 against	 medical	 advice.	 	 While	 Zablotny	 was	 in	 the	 room,	 the	

patient	 looked	 out	 the	 window	 and	 could	 see	 that	 the	 weather	 was	 an	 “old-

fashioned	Nor’	Easter”—bitterly	cold,	windy,	snowy,	and	stormy.		

      [¶8]		At	the	time,	no	physician	was	present	in	the	unit	where	the	patient	

was	 admitted.	 	 Zablotny	 retrieved	 the	 AMA	 form	 and	 called	 the	 on-call	

physician	 pursuant	 to	 hospital	 policy.	 	 Zablotny	 explained	 to	 the	 physician	

that	the	patient	wanted	to	leave	AMA	and	that	the	patient	had	indicated	that	

he	 intended	 to	 go	 to	 a	 friend’s	 house,	 but	 Zablotny	 did	 not	 inform	 the	

physician	of	what	the	patient	wore	for	clothing	or	that	he	intended	to	walk	to	

the	friend’s	house.		Based	on	the	information	relayed	to	him	by	Zablotny,	the	

physician,	 who	 had	 seen	 the	 patient	 earlier	 in	 the	 day,	 told	 Zablotny	 to	 “let	

him	go”	and	advised	Zablotny	that	if	the	patient	was	“a	danger	to	himself	or	

others,	call	the	police.”		
                                                                                       5	

      [¶9]	 	 The	 patient	 then	 signed	 the	 necessary	 paperwork,	 and	 at	 about	

8:20	 p.m.,	 the	 patient	 departed	 the	 hospital	 on	 foot	 into	 blizzard-like	

conditions	 wearing	 only	 pants,	 a	 button	 down	 shirt,	 and	 moccasin-style	

slippers.	 	 At	 approximately	 8:50	 p.m.,	 Zablotny	 located	 the	 day	 shift	 nurse’s	

“daily”	report,	which	had	not	been	properly	placed	in	the	patient’s	chart	and	

contained	 information	 about	 suicidal	 comments	 made	 by	 the	 patient.	 	 In	

response	 to	 that	 new	 information,	 Zablotny	 made	 a	 series	 of	 telephone	 calls	

over	the	next	thirty-five	minutes.		Zablotny	called	the	patient’s	wife,	who	was	

his	 emergency	 contact,	 to	 inform	 her	 that	 the	 patient	 had	 left	 on	 his	 own	

against	 medical	 advice.	 	 At	 the	 patient’s	 wife’s	 request,	 Zablotny	 called	 the	

Machias	 Police	 Department.	 	 The	 next	 day,	 police	 found	 the	 patient’s	 body	

buried	 beneath	 a	 foot	 of	 snow	 approximately	 380	 feet	 from	 the	 hospital’s	

entrance.		He	had	died	of	hypothermia	and	combined	opiate	toxicity.			

      [¶10]	 	 The	 Board	 initiated	 an	 administrative	 action	 against	 Zablotny	

pursuant	 to	 10	 M.R.S.	 §	8003(5)	 (2016)	 and	 32	 M.R.S.	 §	 2105-A(1-A)(D)	

(2016).		Zablotny	I,	2014	ME	46,	¶	6,	89	A.3d	143.		After	a	hearing,	the	Board	

found	 that	 Zablotny	 had	 violated	 his	 professional	 duties	 and	 revoked	 his	

nursing	license	for	two	years.		Id.	¶	7.		Zablotny	appealed	the	Board’s	decision	

to	 the	 District	 Court,	 seeking	 de	 novo	 judicial	 review	 pursuant	 to	 10	 M.R.S.	
6	

§	8003(5).		Id.	¶	8.		Reviewing	the	agency	record,	the	District	Court	(Romei,	J.)	

concluded	 that	 there	 was	 “competent	 evidence	 to	 support	 the	 Board’s	

findings”	 and	 entered	 a	 judgment	 affirming	 the	 Board’s	 decision	 to	 revoke	

Zablotny’s	 license.	 	 Id.	 ¶¶	 9-10.	 	 Zablotny	 appealed	 the	 District	 Court’s	

decision.	 	 Id.	 ¶	 10.	 	 On	 appeal,	 we	 concluded	 that	 the	 District	 Court	 erred	 in	

conducting	 an	 appellate-type	 review	 by	 relying	 on	 the	 Board’s	 findings	

without	conducting	a	de	novo	hearing.		Id.	¶	28.		We	vacated	the	judgment	and	

remanded	the	case	to	the	District	Court	for	further	proceedings.		Id.	¶	29.	

	    [¶11]		On	remand,	we	directed	that	“the	District	Court	shall	evaluate	both	

the	 factual	 and	 legal	 issues	 afresh	 and	 make	 its	 own	 independent,	

nondeferential	 decision.	 	 This	 obligates	 the	 court	 to	 hear	 the	 evidence	

presented,	 independently	 evaluate	 the	 testimony	 offered,	 make	 its	 own	

credibility	 determinations,	 and	 reach	 its	 own	 decision	 regarding	 the	

revocation.”		Id.	(citation	omitted).	

	      [¶12]	 	 The	 District	 Court	 held	 a	 four-day	 hearing	 in	 May	 2015.	 	 The	

Board	 presented	 several	 witnesses,	 including	 fact	 witnesses	 and	 expert	

testimony	on	the	duties	nurses	owe	their	patients,	and	offered	the	American	

Nurses	Association	Code	of	Ethics	with	Interpretive	Statements	(2001).		
                                                                                            7	

       [¶13]	 	 In	 a	 detailed	 written	 decision,	 the	 District	 Court	 found	 that	

Zablotny	 had	 engaged	 in	 unprofessional	 conduct	 by	 failing	 to	 provide	 the	

patient	with	accurate	and	complete	information	about	the	risks	he	faced	upon	

leaving	the	hospital	against	medical	advice.		The	court	further	found,	however,	

that	the	Board	had	failed	to	prove	that	Zablotny	had	violated	any	standards	of	

care	 for	 (1)	 failing	 to	 fully	 inform	 the	 on-call	 physician	 of	 all	 the	 conditions	

under	 which	 the	 patient	 was	 seeking	 to	 be	 discharged	 and	 (2)	failing	 to	

immediately	notify	law	enforcement	or	the	patient’s	emergency	contact	of	his	

departure.		

       [¶14]	 	 In	 making	 its	 findings,	 the	 court	 particularly	 noted	 (1)	 the	

extensive	 contacts	 with	 the	 patient	 during	 the	 day	 shift;	 (2)	 the	 information	

that	 was	 not	 available	 to	 Zablotny	 when	 he	 allowed	 the	 patient	 to	 leave,	

including	 the	 patient’s	 suicidal	 statements	 made	 during	 the	 day;	 (3)	 the	

physician	 who	 had	 seen	 the	 patient	 during	 the	 day	 told	 Zablotny	 to	 “let	 him	

go;”	 (4)	 the	 call	 to	 the	 Machias	 Police	 Department	 shortly	 after	 Zablotny	

became	 aware	 of	 the	 important	 information	 in	 the	 misplaced	 “daily”	 report;	

(5)	 the	 Board’s	 and	 its	 expert’s	 concessions	 that	 Zablotny	 lacked	 any	

authority—statutory	 or	 otherwise—to	 prevent	 the	 patient	 from	 leaving;	 and	

(6)	 the	 hospital’s	 discharge	 policy,	 which	 did	 not	 require	 a	 nurse	 to	 contact	
8	

anyone	 other	 than	 the	 attending	 physician,	 here	 the	 physician	 who	 had	 said	

“let	him	go.”		

      [¶15]		The	court	imposed	a	period	of	suspension	of	Zablotny’s	nursing	

license	 for	 the	 violations	 of	 professional	 conduct	 standards	 that	 the	 court	

found	 to	 have	 been	 committed.	 	 Because	 the	 period	 of	 license	 suspension	

ordered	 was	 less	 than	 the	 period	 of	 suspension	 Zablotny	 had	 served	 during	

the	Zablotny	I	proceedings,	no	additional	suspension	was	actually	imposed.			

      [¶16]	 	 Following	 the	 Board’s	 motion	 for	 reconsideration,	 the	 court	

issued	 an	 order	 granting	 the	 motion	 in	 part—by	 taking	 judicial	 notice	 of	

chapter	 four	 of	 the	 Board’s	 rules—but	 denying	 the	 motion	 in	 all	 other	

respects.		On	reconsideration,	the	court	found	that	Zablotny	had	violated	the	

Board’s	 rules	 for	 the	 same	 reasons	 it	 had	 found	 that	 Zablotny	 committed	

unprofessional	 conduct	 in	 its	 original	 decision,	 but	 the	 court	 declined	 to	

impose	further	sanctions.		The	Board	timely	appealed	pursuant	to	M.R.	Civ.	P.	

80C	and	M.R.	App.	P.	2(b)(3).			

                               II.		LEGAL	ANALYSIS	

	     [¶17]		We	review	directly	the	decision	of	the	District	Court	because	it	is	

mandated	to	decide	de	novo	whether	any	violations	of	professional	standards	

have	 occurred	 and,	 if	 so,	 to	 determine	 whether	 to	 suspend	 or	 revoke	 a	
                                                                                          9	

professional	license.		See	10	M.R.S.	§	8003(5);	Zablotny	I,	2014	ME	46,	¶¶	27,	

29,	89	A.3d	143.	

	      [¶18]	 	 On	 review	 of	 findings	 of	 fact,	 we	 do	 not	 reexamine	 the	 record	

from	 the	 trial	 court	 and	 reach	 our	 own	 decision	 about	 the	 facts;	 instead,	 we	

conduct	a	deferential	review	for	clear	error,	meaning	that	we	will	defer	to	the	

fact-finder’s	 decision	 as	 to	 (1)	 which	 witnesses	 to	 believe	 and	 not	 believe;	

(2)	what	significance	to	attach	to	particular	evidence,	and	(3)	what	inferences	

may	or	may	not	be	drawn	from	the	evidence.		See	Cates	v.	Donahue,	2007	ME	

38,	¶	9,	916	A.2d	941;	Stickney	v.	City	of	Saco,	2001	ME	69,	¶	13,	770	A.2d	592;	

Sturtevant	v.	Town	of	Winthrop,	1999	ME	84,	¶	9,	732	A.2d	264.		

	      [¶19]	 	 A	 party,	 such	 as	 the	 Board,	 that	 had	 the	 burden	 of	 proof	 on	 an	

issue	at	trial,	can	prevail	when	challenging	a	finding	that	the	party’s	burden	of	

proof	has	not	been	met	only	if	the	party	demonstrates	that	a	contrary	finding	

is	compelled	by	the	evidence.		St.	Louis	v.	Wilkinson	Law	Offices,	2012	ME	116,	

¶	16,	55	A.3d	443;	Handrahan	v.	Malenko,	2011	ME	15,	¶	13,	12	A.3d	79; Kelley	

v.	Me.	Pub.	Emps.	Ret.	Sys.,	2009	ME	27,	¶	16,	967	A.2d	676.	

	      [¶20]	 	 Seeking	 to	 avoid	 these	 deferential	 standards	 of	 review	 for	

challenges	to	findings	of	fact,	the	Board	argues	that	it	does	not	challenge	the	

court’s	 factual	 findings,	 but	 only	 the	 court’s	 legal	 conclusions.	 	 When	 a	 trial	
10	

court	judgment	or	administrative	law	decision	is	based	on	a	conclusion	of	law,	

we	 review	 the	 conclusion	 of	 law	 de	 novo.	 	 Goudreau	 v.	 Pine	 Springs	 Rd.	 &	

Water,	LLC,	2012	ME	70,	¶	11,	44	A.3d	315.		

	      [¶21]	 	 When	 an	 act	 is	 indisputably	 improper	 or	 when	 the	 licensee	

admits	the	violation,	a	professional	regulatory	board	does	not	need	to	present	

any	evidence	of	the	applicable	standard	to	support	a	finding	that	the	standard	

has	 been	 violated.	 	 Balian	 v.	 Bd.	 of	 Licensure	 in	 Medicine,	 1999	 ME	 8,	 ¶	16,	

722	A.2d	364.		But	on	the	facts	of	this	case,	the	Board’s	asserted	violations	of	

its	 standards	 are	 not	 so	 apparent	 that	 the	 undisputed	 facts	 establish	 the	

asserted	violations	as	a	matter	of	law.			

	     [¶22]	 	 Despite	 the	 Board’s	 arguments,	 the	 question	 of	 whether	 certain	

facts	 demonstrate	 violation	 of	 professional	 standards	 is	 a	 mixed	 question	 of	

law	 and	 fact,	 as	 demonstrated	 by	 the	 Board’s	 presentation	 of	 expert	

testimony—fact-based	 evidence—seeking	 to	 demonstrate	 that	 the	 rules	 and	

professional	standards	it	enforces	had	been	violated.		On	review	of	decisions	

regarding	application	of	professional	standards,	we	interpret	the	meaning	of	

the	 identified	 professional	 standards	 de	 novo	 as	 a	 matter	 of	 law,	 and	 we	

review	for	clear	error	the	court’s	findings	of	fact	to	determine	applicability	of	

the	professional	standards.		See	Bd.	of	Overseers	of	the	Bar	v.	Warren,	2011	ME	
                                                                                       11	

124,	¶	25,	34	A.3d	1103;	Bd.	of	Overseers	of	the	Bar	v.	Brown,	623	A.2d	1268,	

1270	(Me.	1993);	see	also	Dionne	v.	LeClerc,	2006	ME	34,	¶	15,	896	A.2d	923	

(holding	that	the	fact-finder	has	the	prerogative	to	selectively	accept	or	reject	

testimony,	 including	 expert	 witness	 testimony,	 even	 if	 that	 testimony	 is	

uncontradicted);	In	re	Fleming,	431	A.2d	616,	618	(Me.	1981).	

	     [¶23]		The	Board	contends	that	the	facts	found	by	the	court	establish,	as	

a	matter	of	law,	that	Zablotny	committed	unprofessional	conduct	and	violated	

Board	rules	pursuant	to	32	M.R.S.	§	2105-A(2)(F)	and	(H)	by	(1)	failing	to	fully	

inform	the	on-call	physician	of	all	the	conditions	under	which	the	patient	was	

seeking	 to	 be	 discharged	 and	 (2)	failing	 to	 immediately	 notify	 law	

enforcement	or	the	patient’s	emergency	contact	of	his	departure.		

	     [¶24]	 	 The	 District	 Court’s	 findings	 regarding	 (1)	 the	 information	 and	

observations	 about	 the	 patient	 during	 the	 day	 shift	 that	 others	 knew,	 but	

Zablotny	 did	 not	 know,	 when	 he	 allowed	 the	 patient	 to	 leave,	 (2)	 the	

physician’s	 “let	 him	 go”	 statement,	 (3)	 the	 timing	 of	 the	 call	 to	 the	 police,	

(4)	the	fact,	apparently	undisputed,	that	Zablotny	lacked	authority	to	prevent	

the	 patient	 from	 leaving,	 and	 (5)	 Zablotny’s	 compliance	 with	 the	 hospital’s	

discharge	 policy	 for	 an	 “against	 medical	 advice”	 discharge	 that	 required	

communication	only	with	the	attending	physician,	support	the	conclusion	that	
12	

the	District	Court	was	not	compelled,	as	a	matter	of	law,	to	find	that	Zablotny	

violated	 Board	 rules	 or	 professional	 standards	 of	 care	 on	 the	 two	 issues	

asserted	by	the	Board	on	appeal.	

	        [¶25]		The	findings	of	fact	made	by	the	District	Court	are	supported	by	

the	record,	and	based	on	those	findings,	its	conclusions	regarding	application	

of	the	Board	rules	and	professional	standards	to	the	facts	do	not	indicate	any	

error	of	law.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	      	    	     	
	
Janet	T.	Mills,	Attorney	General,	and	Andrew	L.	Black,	Asst.	Atty.	Gen.	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellant	State	Board	of	Nursing	
	
Joseph	M.	Baldacci,	Esq.	(orally),	and	Eugene	M.	Sullivan,	Jr.,	Esq.,	Law	Office	of	
Joseph	M.	Baldacci,	Bangor,	for	appellee	John	S.	Zablotny	
	
	
Machias	District	Court	docket	number	AD-2010-03	
FOR	CLERK	REFERENCE	ONLY	
