The story is tragic. The lesson clear. An Indiana woman was forced to seek and obtain a guardianship for her mother, who suffered from terminal Parkinson’s disease. Her mother was in consistently poor health, and had been treated for broken hips, dehydration, and bedsores prior to her seeking guardianship. The mother was also a small women, typically thin, and naturally emaciated looking.
The woman cared for her mother for seven years. During that time, she would visit frequently, but relied heavily upon family members to assist in her mother’s care. Further, she retained the services of a home health care agency to visit daily and ensure provision of meals and medication. Her mother was frail, very small, and 83 years old. It probably did not surprise the daughter that her mother took a sudden turn for the worse, was hospitalized and died.
What happened next shocked, surprised, and outraged the whole family. The county prosecutor issued an indictment against the daughter for homicide! The prosecutor charged the daughter with willful neglect and abuse of her mother.
The medical examiner found that the mother had passed due to malnutrition secondary to chronic pneumonia. At trial the medical examiner testified that the undernourishment had to have existed for months, and that the daughter, as guardian, was duty bound to ensure that her mother received adequate good nutrition. The prosecutor made much of the mother’s chronic bed sores and repeated bouts of pneumonia, notwithstanding that the mother had suffered from these conditions for years prior to the daughter’s being appointed guardian.
Testifying on behalf of the daughter were her family members and the mother’s physician, who testified regarding the exceptional and devoted care the daughter gave the mother over the seven years. The daughter also retained a geriatric specialist who testified that geriatric patients can suffer from “cachexia,” or starvation or “wasting away,” even though they may be eating on a regular basis, and even though they may be receiving otherwise good care.
A nurse from a nursing home that had cared for the mother for a period of approximately six months for a broken hip approximately one year before her death was extremely critical of the daughter, testifying that the daughter was warned by the staff nurse and doctor that her mother was prone to dehydration, and that she should not be returned home. The nurse criticized the daughter for disregarding the advice of the nursing home professionals. The daughter, and her family all testified that the mother’s stated wish was to be at home, and that her condition remained consistent both before, during, and after the nursing home stay.
After difficult deliberations, a jury returned a guilty verdict against the daughter. The trial court judge refused to set aside the verdict, although the judge admitted the case was made difficult by the undisputed facts that the daughter “had taken care of her mother for several years,” that the mother “suffered from a terminal illness,” that the mother “was difficult to care for,” and that the mother “ had been a thin woman.” Notwithstanding these undisputed facts, the trial judge allowed the verdict to stand, deferring to the decision of the jury that had heard all of the evidence.
The jury, of course, probably felt compelled, legally, to return a verdict against the guardian daughter. Legally, the death of a ward while in the care and control of a guardian is presumed to be the fault of the guardian, especially where there is evidence of omission or negligence.
On appeal, the Indiana appellate court affirmed the decision of the lower court, and allowed the verdict to stand. The court refused to review the sufficiency of evidence against the daughter arguing that the jury and trial court were in a better position to review the evidence. Moreover, the court held that a guardian can be prosecuted for neglect where the state had any evidence that the guardian knowingly and willfully failed to provide treatment, care, goods or services which results in injury to the health or endangers the safety of an incapacitated adult. The coroner's finding was sufficient.
Of course, the fact the nursing home staff nurse and doctor advised the daughter that the mother should remain institutionalized provided just the evidence that the prosecutor needed to prove that the daughter’s actions were “knowing and willful.” What no one could testify, however, is that institutionalization would have resulted in a different outcome for the mother, notwithstanding that it is unlikely that a nursing home would have been charged criminally had the woman's death resulted while in an institution.
The story is tragic and unfortunate. One must wonder whether the daughter was the unfortunate victim of circumstance, and whether the mother would agree with the verdict. For the rest of us, the case only underscores the importance of planning to avoid such a burden on our children. For those of us acting as guardians or caregivers, the case is a sobering reminder that what may seem at the time to be intimate “family” decisions are in fact subject to intense public scrutiny and second-guessing. Moreover, the case is instructive of the dangers inherent in the lack of geriatric medical experience that exists in the legal system, as the system confronts difficult questions of geriatric care.
Ohio can similarly prosecute a guardian for either negligent or reckless homicide.
No comments:
Post a Comment