Opinion
The People of the State of California appeal from an order finding registered nurse Chad Josef Medlin and licensed vocational nurse (LVN) Sandra Marie Monterroso factually innocent of felony charges of dependent adult abuse likely to produce great bodily harm or death in violation of Penal Code section 368, subdivision (b)(1). 1 The order followed their acquittal by jury. The court directed destruction of records of their arrests pursuant to section 851.8, subdivisions (b) and (c). We issued a writ of supersedeas staying the destruction of records pending appeal.
Appellant contends that, notwithstanding the acquittals, reasonable cause exists to believe that respondents committed the offense of which they were charged. We agree and reverse.
Jeremiah Allen nearly drowned in a surfing accident in October 2003. He was rendered semicomatose and paraplegic. In January 2004, he was admitted to CareMeridian, a long-term care facility at which respondent Medlin was director of nursing and Monterroso was employed as an LVN. CareMeridian is a 12-bed facility that specializes in accident victims. It was about half full while Allen was there. Allen died at the facility on the afternoon of June 2, 2004, because his tube feedings had been introduced into his abdominal cavity instead of his stomach.
Events Leading to Allen’s Death
From the time of his accident, Allen had been fed with a size 20 gastrostomy tube, or “G-tube.” A G-tube passes directly into the patient’s stomach from his belly, through the abdominal cavity, bypassing the esophagus. Standing physician’s orders called for a size 14 French G-tube and authorized G-tube replacement if the tube became blocked (occluded) or was pulled out. By the time of trial it was clear that the discrepancy in tube size did not contribute to Allen’s death.
On June 2 at 3:00 a.m., Monterroso found Allen’s G-tube lying beside him on the bed. She did not know how long it had been out. She noted in his chart that he had pulled it out forcibly, but she did not see that happen. She did not call Allen’s physician or alert Medlin, and she did not check the standing orders. She had not recently been trained in G-tube placement. 2
Monterroso replaced the G-tube. She used two methods to try to verify that she had placed the tube in the stomach. First, she used a stethoscope to listen to air passing from a syringe into the stomach (auscultation) and heard a whooshing sound in the abdominal area. Next, she unsuccessfully attempted to aspirate (pull up) gastric fluids. From the absence of gastric fluid, she concluded Allen’s stomach was empty.
Monterroso proceeded with Allen’s scheduled feedings after 3:00 a.m. and again at 6:00 a.m. She reported in his chart that he tolerated his 3:00 a.m. feeding well, but in the medication checkout record she noted that about 4:00
After his 3:00 a.m. feeding, Monterroso noted that Allen was sweating, grimacing and groaning. She testified that she was not concerned because she had seen him sweat, grimace and groan before. She left her shift at 7:00 a.m. without notifying Allen’s physician or Medlin of Allen’s condition. She did inform the morning LVN, Patsy Carper, that she had replaced Allen’s feeding tube. Before Monterroso left Allen appeared restful to her.
Carper observed that Allen was sweating and straining. She testified that he always sweated and strained before having a bowel movement. Carper had worked at the facility for two weeks and had not completed orientation. Before giving Allen his medications and morning feeding, Carper tried to aspirate gastric fluids to ensure that the G-tube was in the stomach. She got “very little contents.” She concluded that this was because Allen had not had a bowel movement. She later told a State Department of Public Health (DPH) 3 investigator that the 9:00 a.m. feeding “went down slowly,” but that she was able to complete it after she got him upright on a tilt table.
About 7:00 a.m., certified nursing assistant, Lazara Lozano, took Allen’s vital signs. She noticed that Allen was pale and felt that something was wrong. She had not seen him this way before. She had cared for Allen since his arrival at the facility six months earlier.
Medlin arrived at the facility sometime after 9:00 a.m. About 10:00 a.m., Lozano and another staff member put Allen in a therapeutic standing frame. Lozano saw that he was breathing fast and perspiring. Allen’s therapist saw that he was pale, sweating profusely and his eyes were wide open whereas they were usually closed. The therapist was new at the facility and had treated Allen only once before.
Staff returned Allen to his bed to rest before a scheduled therapy session. Lozano told LVN Carper what had happened. The therapist continued checking on Allen during the morning and Allen continued to sweat profusely.
Sometime between 11:00 a.m. and noon, Lozano took Allen’s vitals. He had a fever over 101 degrees. She tried to take his blood pressure but could not hear anything. Another staff member tried and also could not hear
About 11:00 a.m., Carper asked Medlin to check Allen because he was sweating. Medlin entered Allen’s room. Carper told Medlin that Lozano could not hear Allen’s blood pressure, but that it was fine because she, Carper, was able to get his blood pressure using palpitation. Medlin, who was sick with a cold, left the room and returned sometime before 1:00 p.m. When he returned, he said, “Oh, he’s fine. He’s probably competing with me.”
Between 11:30 a.m. and noon, Medlin spoke by phone with Allen’s treating physician about a routine meeting. Medlin did not mention Allen’s condition.
By 1:30 p.m., Allen’s temperature was 101.2. Carper reported this to Medlin. She gave Allen ibuprofen.
Sometime during the afternoon a friend of Allen’s came to visit. Allen’s eyes were wide open and he looked desperate. Allen’s eyes were usually closed. The friend had visited several times before for about an hour each time. He called for help and nurses came in and said, “[Y]ou have to leave now.”
About 1:00 p.m., Allen’s physician received a message that Medlin was trying to report a change in Allen’s condition. The physician called Medlin’s cell phone between 1:00 p.m. and 1:15 p.m. Medlin told the physician that Allen’s pulse was under 60 and his oxygen saturation levels had dropped dramatically. Medlin did not tell the physician that Allen’s G-tube had been changed. The physician told Medlin that Allen needed to be sent to the emergency department.
Dispatch records showed that facility staff called an ambulance company about an hour later, at 3:21 p.m., requesting a routine transfer of a patient with fever. The call did not come through 911 and there was no dispatch note that transfer was urgent. 4 Paramedics arrived within eight minutes at 3:29 and found Allen dead. They reported that he had rigor mortis in the jaw, his skin was cold and he had lividity. These signs indicated that he had been dead for at least half an hour. Nurses were trying to help Allen breathe with a bag device when the paramedics arrived.
An autopsy determined that Allen’s cause of death was peritonitis: an infection of the lining of the abdominal cavity which can develop and cause death within hours. The G-tube was found in Allen’s abdominal cavity, and the cavity was filled with all of the formula and water that he had been given in the 12 hours before death.
Department of Public Health
The DPH conducted an investigation. It issued a Class AA citation to the facility for “failure to identify care needs based on continuing assessment.” Class AA citations are the most severe. They are issued when a regulatory violation causes the death of a patient in a care facility. (Health & Saf. Code, § 1424, subd. (c).) In January of 2005, the DPH referred a patient abuse complaint to the Department of Justice (DOJ).
Department of Justice Investigation
The DOJ conducted an investigation. It reviewed records and interviewed Medlin, Carper, Lozano, Allen’s physician, the gastroenterologist and the paramedics. 5
A nurse evaluator for the DOJ reached the conclusion that Monterroso “violated the practice of vocational nursing” in California by failing to follow the physician’s orders or facility procedures for G-tube replacement. The tube replacement procedures required her to “obtain/verify the physician order,” to “aspirate for stomach contents to check patency” once the tube was in place and to “document procedure results; resident’s tolerance; and any other pertinent information . . . .”
Preliminary Hearing
Monterroso and Medlin were charged with dependent abuse and neglect and were held to answer after a preliminary hearing. At the preliminary
Dr. Lipson also testified that Monterroso should have checked the physician’s orders, should have called the physician to tell him that she was replacing the tube, should not have relied on auscultation to check placement and should not have interpreted the lack of gastric contents as meaning that Allen’s stomach was empty. He testified that Monterroso should not have given fluid without checking or repositioning the tube after the patient became sweaty and distressed at 4:00 a.m.
According to Dr. Lipson, G-tube tracts can close up or become misaligned when the tube comes out, especially if the tube has been in place a short time. Allen’s tube had been replaced six days earlier and Monterroso did not know how long the tube had been out that night. 6 Under these circumstances, she should have sent the patient to the emergency room so that a gastroenterologist could replace the tube.
Dr. Lipson testified that Medlin, as director of nursing, was responsible for ensuring nurse training in feeding tube placement, and there was no evidence that they had been trained in the recent past. He testified based on medical records that Allen was exhibiting signs and symptoms of infection between 7:00 a.m. and 3:30 p.m. consistent with inflammation of the peritoneal area. He testified that by noon Medlin was aware that Allen had severe problems and a fever with clear lungs, and that Medlin should have sent Allen to the hospital immediately.
Trial
The cases against Monterroso and Medlin were consolidated for trial. Dr. Lipson testified that both Medlin and Monterroso recklessly caused Allen’s death. On cross-examination Lipson was confronted with records from Allen’s initial treatment that showed Allen had always had a size 20 G-tube. Dr. Lipson said this information did not change his opinions.
Dr. Lipson testified that Medlin was reckless because he did not immediately transfer Allen to a hospital when he showed signs of distress, fever and dropping oxygen saturation. He testified that signs of peritonitis include sweating, grimacing or groaning, rapid breathing and a drop in blood pressure and that peritonitis is very painful.
At the close of the prosecution’s evidence respondents moved for dismissal pursuant to section 1118.1 on the ground that the prosecution’s expert had been completely discredited. The trial court denied the motion, stating that it would defer to the jury on the question of credibility.
A nursing consultant and a physician testified on behalf of respondents that their care was not reckless and fell within the standard of care. The nurse testified that gastric contents should be aspirated, but it is not unusual to get no gastric contents. The physician (who had never placed a tube) testified that absence of gastric contents can mean it is time to feed the patient. They both testified that Allen’s appearance and behavior were not unusual for Allen, based on nursing notes. Both testified that Medlin did not do anything wrong by waiting to call an ambulance. The jury acquitted respondents of all charges.
Motions for Determination of Factual Innocence
Both defendants moved for determinations of factual innocence. (§ 851.8, subd. (e).) In opposition, the prosecution submitted the investigation records of the DPH and the DOJ.
DISCUSSION
An order granting a petition for factual innocence is appealable by the prosecution. (§ 851.8, subd. (p)(l);
People v. Adair
(2003)
“[A]cquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.”
(United States
v.
One Assortment of 89 Firearms
(1984)
In considering the petition, the court applies an objective standard.
(Adair, supra,
A person petitioning for a finding of factual innocence has the initial burden to demonstrate the absence of reasonable cause. To meet this burden, the petitioner must show more than a viable defense to the crime. He or she must establish “ ‘that there was no reasonable cause to arrest him in the first place.’ ”
(Adair, supra,
We give no deference to the trial court’s subjective determination that “I do still feel that and find that the defendants are factually innocent,” because “[a] trial court’s finding of factual innocence based solely on its own interpretation of the evidence does not sustain the defendant’s burden any more than a failure of the prosecution to convict.”
(Adair, supra,
Violation of section 368, subdivision (b)(1) requires proof of willful conduct that caused a dependent adult to suffer under circumstances likely to produce great bodily harm or death. 7 Respondents concede that Allen was a dependent adult in respondents’ care and that he died as a result of feedings being introduced directly into his abdominal cavity.
There is legal cause to believe that respondents willfully caused Allen to suffer. The statute does not require specific intent to injure but does require criminal negligence. (§ 7;
People v. Superior Court (Holvey)
(1988)
There are no reported decisions describing criminally negligent medical procedures that violated section 368. Criminal convictions for violation of section 368 most commonly involve nonprofessional caregivers neglecting or abusing family members.
(People v. Heitzman, supra, 9
Cal.4th 189;
People
v.
Matye
(2008)
Health care professionals, however, have been prosecuted under section 368. In
People
v.
Superior Court (Holvey), supra,
In this case, respondents contend that they are factually innocent of criminal neglect because the entire prosecution was based on the mistaken belief that Monterroso replaced a size 14 G-tube with a size 20 G-tube, contrary to the physician’s standing order. This is an oversimplification.
Medlin contends that he is factually innocence because he had no notice of Allen’s change in condition until 1:45 p.m., and that he had every reason to believe Allen suffered only from a cold. Carper testified that she called Medlin to check on Allen about 11:00 a.m., because he was sweating. By this time he had a fever and two nursing assistants had been unable to hear his blood pressure. There was evidence that Medlin failed to respond to obvious signs of patient distress: Allen’s fever and dropping oxygen saturation. He attributed these signs to a cold notwithstanding the fact that Allen’s lungs were clear, he had no mucus, and his feeding tube had recently been replaced. There was evidence that Medlin did not call for transport to the emergency room until an hour after Allen’s physician told him to and that when the facility did call the ambulance, Allen was already dead. There was also evidence that Medlin had not ensured Monterroso was properly trained in G-tube placement, that he was responsible for doing so and that the risks of improper placement are well known by nurses. These facts provided reasonable cause to believe Medlin was criminally negligent.
The acquittals notwithstanding, after independent review of all of the evidence available to the prosecution we cannot conclude that “ ‘no objective factors justified official action . . . .’ ”
(Adair, supra,
The order under review is reversed and vacated.
Gilbert, P. J., and Perren, J., concurred.
Notes
All statutory references are to the Penal Code unless otherwise stated.
According to facility records, Monterroso had demonstrated competency in G-tube replacement in 1998. She was terminated from the facility in 1999 for “patient abandonment/failing to report to work.” She was rehired in 2000, although her personnel records indicated that she was ineligible for rehire.
The functions of the former State Department of Health Services were transferred to the new State Department of Public Health in 2007, after Allen’s death and before trial. (Health & Saf. Code, § 131050, added by Stats. 2006, ch. 241, § 34, eff. July 1, 2007.) For simplicity, we will refer to both agencies as the DPH.
The physician testified that he expected Medlin to call 911. He did not specifically instruct him to.
Monterroso had moved to Las Vegas. The DOJ scheduled an interview with her in her home in July 2005, but she canceled the interview and did not return subsequent calls. She had moved out of her Las Vegas home suddenly on June 30, 2005. Monterroso was arrested later that month.
A week before Allen’s death, his father noticed a dark coffeelike substance coming up from Allen’s G-tube. Allen’s father alerted Allen’s treating physician. On May 28, 2004, gastroenterologist Ahmed Rashed, M.D., performed an esophagogastroduodenoscopy and found that the feeding tube had become displaced. The tube had lodged in the opening of the small intestine (the duodenal bulb) where it was causing irritation. Dr. Rashed returned the tube to the correct position in the stomach. The G-tube was then used to feed Allen without incident until June 2.
Monterroso was charged with willfully placing Allen in a situation where his person or health was endangered under circumstances likely to produce great bodily harm or death. (§ 368, subd. (b)(1).) Medlin was charged with willfully causing or permitting Allen to suffer unjustifiable pain or suffering under circumstances or conditions likely to produce great bodily harm or death and having a legal duty to supervise and control persons who caused or inflicted unjustifiable pain or mental suffering on Allen, and failing to supervise or control that conduct. (§ 368, subd. (b)(1);
People
v.
Heitzman
(1994)