STATE of Louisiana v. Joseph BRENNER, Douglas Guidry, Peggy Ressor, Edward Bierman, Tom Aires Pritchard and Sarah Lancaster
No. 85-KK-1624
Supreme Court of Louisiana
March 31, 1986
Rehearing Denied May 29, 1986
486 So. 2d 101
WATSON, Justice
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Kevin Boshea, Mike McMahon, Asst. Dist. Attys., for plaintiff-respondent.
WATSON, Justice.
Defendants were charged with cruelty to the infirm in violation of
In answer to defendants’ motion for a bill of particulars, the State alleged that defendant Peggy Ressor, Administrator of the Provident Nursing Facility,4 neglected and/or mistreated Bruce Hill and Clarence Bell by failing to assure that: the nursing home was maintained in a good and sanitary manner, necessary health services were performed, the staff was properly trainеd, there were adequate medical supplies and sufficient staff, the patients’ records were correctly maintained, and the patients were “adequately fed, watered and cared for.”5
It was alleged that Tom Pritchard, Director of Nursing, neglected and/or mistreated the viсtims in the same particulars and also failed to properly train the staff at the nursing home in correct nursing procedures.
It was alleged that Douglas Guidry, “controller” [sic] failed in the same particulars and also failed to purchase adequate medical supplies for proper treatment and that Edward Bierman, admissions director and physical therapist, failed to provide adequate physical therapy and failed to exercise proper judgment regarding admissions procedures at the facility.7
I.
Defendants contend that the term “neglect” is unсonstitutionally vague.
Statutes are presumed to be valid. Whenever possible, the constitutionality of a statute should be upheld. State v. Rones, 223 La.839, 67 So.2d 99 (1953); Police Jury v. St. Charles Par. Waterworks Dist. No. 2, 243 La.764, 146 So.2d 800 (1962).
Due process requires that a statute punishing an act or omission must give those subject to prosecution a known or ascertainable standard of guilt. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). In the case of an omission to act by a person unaware of any wrongdoing, notice of the consequences is essential for due process. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), reh.den. 355 U.S. 937, 78 S.Ct. 410, 2 L.Ed.2d 419 (1958).
Here, the word neglect is preceded by “or” and indicates that the “criminally negligent” qualifying words apply to neglect as well as mistreаtment.8
“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender‘s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”
Criminal negligence requires:
“a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.... It calls for substantially more than the ordinary lack of care which may be the basis of tort liаbility, and furnishes a more explicit statement of that lack of care which has been variously characterized in criminal statutes as `gross negligence’ and `recklessness.’ ” 5 La.L.Rev. at p. 11.
As supplemented by the general provisions of the Louisiana Criminal Code, the phrase “intentionаl or criminally negligent mistreatment or neglect” is sufficiently clear in meaning to afford a person of ordinary understanding fair notice of the conduct which is prohibited. See Chambers v. State, 364 So.2d 416 (Ala.Cr.App.1978), writ.den. 364 So.2d 420 (Ala.1978).
II.
The phrase “unjustifiable pain and suffering” is also not unconstitutionally vague.
In State v. Comeaux, 319 So.2d 897 (La.,1975) the term “unjustifiable pain and suffering” was found to be sufficiently clear to give a person of ordinary intelligence fair notice of what conduct is criminal.
Because certain medical treatment necessarily results in pain and suffering, the phrase is qualified in the Louisiana statute to make it clear that only the infliction of unjustifiablе pain and suffering is prohibited. See State v. Eich, 204 Minn. 134, 282 N.W. 810 (1938) which held that “unjustifiable” presented a sufficiently definite standard to pass constitutional muster, because the word “from common usage has a well known meaning“.9 Also see People v. Curtiss, 116 Cal.App.Supp. 771, 300 P. 801 (1931) which held that “unjustifiable“, meaning that which could not be defended or vindicated or which was not exculpable, excusable, or authorizable under the circumstances, was sufficiently certain of meaning to provide a fixed standard of guilt. Also see Bludsworth v. State, 98 Nev. 289, 646 P.2d 558 (1982). Compare State v. Ballard, 341 So.2d 957 (Ala.Cr. App.1976), writ quashed 341 So.2d 962 (Ala.1976) and State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979) both of which involved the use of “unjustifiable” in different contexts.
In this context, unjustifiable has a definite and ascertainable meaning to those of ordinary understanding. Reasonable certainty is all that due process requires. See People v. Untiedt, 42 Cal.App.3d 550, 116 Cal.Rptr. 899 (1974) and Bludsworth v. State, supra.
Unjustifiable is a term of limitation intended to distinguish that pain and suffering which is an inevitable consequence of care and treatment from that which is not justified by medical needs.
With regard to minors,
III.
Defendants also contend that the statute is unconstitutionally vaguе in prohibiting criminally negligent neglect of the infirm without establishing who has a duty of care.
The term “infirm” denotes one who is weak and feeble and is generally used in
The word “neglect” in the cruelty to juveniles statute is limited by the Reporter‘s Comment to those “with legal responsibility towards a child” but there is no similar limitation in this statute. It should be noted that both statutes proscribe not mere neglect but “criminally negligent mistreatment or neglect.” Only criminally negligent neglect is punishable.
All nursing homes and other licensed facilities caring for the infirm13 receive written notification of the state‘s laws, minimum standards, rules, regulations and ordеrs with which they are expected to comply.14 Therefore, there is notice of the duties imposed in regard to the residents.15 Since the personnel are fully apprised of their affirmative duties toward the residents, there is no problem with the due process requirement of notice. Compare Lambert v. California, supra. The problem of an omission to act in the absence of a legal duty, as discussed in 35 Baylor Law Review at 589, is not present in this case.
The duty to refrain from cruelty to the infirm residing in nursing homes or other facilities licensed and operated under the laws of the state extends to all who have a duty in regard to those residents. Those with a duty of care toward the infirm residents of licensed facilities, that is, those who are in some way responsible for their well-being, are required to refrain from criminally negligent mistreatment or neglect which inflicts unjustifiable pain and suffering. Seе People v. Harris, 239 Cal. App.2d 393, 48 Cal.Rptr. 677 (1966). Determining which of those responsible for the patients are guilty of intentional or criminally negligent mistreatment or neglect is a matter to be determined by the trier of fact in each individual case.
There is a strong public policy in favor of protecting those who are infirm and defenseless from abuse. Louisiana‘s statute has a lower standard of protection for the infirm than many states with similar statutes. See, for example, Wisconsin, where the jury was charged in State v. Serebin, 119 Wis.2d 837, 350 N.W.2d 65 (1984), that “abuse, neglect or ill-treatment” is “any act or failure to act which causes suffering, misery or physical harm to a person confined.” 350 N.W.2d at 76.16 Louisiana, in contrast, only penalizes intentional or criminally negligent acts or omissions causing “unjustifiable” pain and suffering.
The Louisiana statute gives fair notice of the prohibited conduct. Only when those responsible for care of the infirm inflict unjustifiable suffеring, intentionally or with criminal negligence, is there criminal responsibility. See Bowers v. State, 38 Md. App. 21, 379 A.2d 748 (1977), affirmed on other grounds, 283 Md. 115, 389 A.2d 341 (1978).
For the foregoing reasons, the trial court‘s denial of defendants’ motion to quash the indictment is affirmed.
AFFIRMED.
DIXON, C.J., dissents.
CALOGERO, J., dissents. RS 14:93.3 is unconstitutional, vague.
DENNIS, J., dissents.
NOTES
Notes
“Cruelty to the infirm is the intentional or criminally negligent mistreatment or neglect whereby unjustifiable pain or suffering is caused a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital or other residential facility required to be licensed or operated under the laws of this state or established by the laws of this state.
“Whoever commits the crime of cruelty to the infirm shall be fined not more than ten thousand dollars, or imprisoned for not more than one year, or both.”
“Unless the context clearly indicates otherwise:
“(1) The word `and’ indicates the conjunctive;
“(2) The word `or’ indicates the disjunctive;
“(3) When the article is phrased in the disjunctive, followed by the words `or both,’ both the conjunctive and disjunctive are intended; and
“(4) The word `and’ or `or’ between the lаst two items in a series applies to the entire series.”
“The fact that an offender‘s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
* * * * * *
“(4) When the offender‘s conduct is reasonable discipline of minors by their parents, tutors or teachers; or * * *”