Caretenders, Inc. v. Com.

• Citation: 821 S.W.2d 83
• Decision Date: 19 December 1991
• Docket Number: No. 90-SC-000813-DG,90-SC-000813-DG
• Parties: CARETENDERS, INC., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 83

821 S.W.2d 83

CARETENDERS, INC., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-SC-000813-DG.

Supreme Court of Kentucky.

Dec. 19, 1991.

William E. Johnson, J. Guthrie True, Stoll, Keenon & Park, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Michael Harned, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, Thomas A. Donan, Bardstown, for appellee.

OPINION OF THE COURT

The Kentucky Supreme Court hereby affirms the decision of the Court of Appeals in this matter. This Court hereby adopts the majority opinion of the Court of Appeals by Howard, J., with Howerton, C.J., and Miller, J., sitting.

"On October 6, 1987, J.A. Lewis entered into an agreement with appellant, Caretenders, Inc., to provide home health care services on a live-in basis for his 83-year-old mother, Odell Lewis. Caretenders had provided services for Odell in September and possibly early October of 1987 under a state paid program.

Odell's health was not good. She was admitted to Flaget Memorial Hospital in Bardstown, Kentucky, on September 18, 1987. The diagnosis included an embolus in a leg artery, right groin hematoma, diabetes, severe atherosclerosis, and obesity. The embolus was removed and she was subsequently discharged. From that time on, Odell was essentially bed-ridden.

Odell was hospitalized again on October 15, 1987, suffering from dehydration resulting principally from vomiting and diarrhea. Odell was diagnosed as suffering from gastroenteritis and diabetes. She was treated and discharged on October 22, 1987.

On December 11, 1987, Odell was readmitted to the hospital, suffering from a stone in her right kidney, urinary tract infection, diabetes and decreased renal function. Odell was treated with intravenous antibiotics and was released on December 15, 1987, with an indwelling catheter. Following each of these discharges Odell returned home under the care of Caretenders.

Odell was examined at home by Dr. Brown, her treating physician, on January 15, 1988. A reddened area on Odell's sacrum had become a decubitus (pressure or bedsore). Decubiti on her hip area and her right heel were also noted.

On February 9, 1988, Odell was readmitted to Flaget for treatment of a urinary tract infection and the decubiti. Dr. Anderson examined Odell and found that she had "multiple, extensive" decubiti on her body. The area over her sacrum was larger and extended to the bone. Dr. Anderson reported that she appeared unwashed and dirty and smelled of necrotic material.

On April 25, 1988, an indictment was brought against Caretenders, Korine Martiuello, a registered nurse and administrator of Caretenders' Elizabethtown office, Delores McDonald, a registered nurse in Caretenders' visiting services department, and Loretta Muncy, a licensed practical nurse in the company's nursing and supportive care services program. The defendants, while acting as a licensed caretaker or employee thereof, allegedly violated KRS 209.990(2) because they knowingly and willfully neglected, from January 1, 1988, to February 9, 1988, an adult patient, Odell Lewis, causing her serious mental and/or physical injury or permanent disability.

Following a jury trial, Caretenders was convicted of a class A misdemeanor under KRS 209.990(2). The three nurses were acquitted. Caretenders was fined $8,333.33. This appeal follows.

Caretenders first contends that the jury verdicts were repugnant and inconsistent because it was convicted while its three agents were acquitted.

The Commonwealth maintains that by failing to object to the verdict as inconsistent when it was rendered, the issue has not been preserved. In Horn v. Hancock, Ky.App., 700 S.W.2d 419 (1985), this Court held that when a jury renders an inconsistent verdict, the error must be brought to the trial court's attention while the jury is available or it is waived. See Oldham v. Adkisson, Ky., 448 S.W.2d 55 (1969); Breathitt Funeral Home v. Neace, Ky., 437 S.W.2d 490 (1969).

Caretenders argues that the waiver rule has been applied only to civil cases, and not criminal cases, and should not be enforced against it. The application of the waiver rule does not appear to depend on the type of case at issue, but the type of defect in the verdict.

When the defect is merely formal, the accused must bring the matter to the trial court's attention before the jury is discharged or the defects are waived. Franklin v. Commonwealth, Ky., 490 S.W.2d 148 (1972). In that case, the verdict was defective in regard to the sentence imposed, but because the defendant had not objected in a timely manner, the defect was deemed waived. The sentencing could not then be resubmitted to a jury, the Court remanded the case to the trial court itself for sentencing.

If the defect is one of substance, the error may be raised after the jury has been discharged such as in a motion for new trial. See Prince v. Commonwealth, Ky.App., 576 S.W.2d 244 (1978). In Prince, supra, this Court held that an error in a verdict was substantive where we were unable to determine of what crime the defendant was convicted from the face of the verdict. We determined the defect was preserved for our review when it had been brought out in the motion for a new trial, even though no objection was made before discharge of jury.

If an inconsistency in the verdict exists in the case at bar, we think that it must be considered substantive. It would be difficult to call the question of guilt or innocence of a party a matter of procedure.

Caretenders and the three nurses were indicted for their conduct "while acting as a licensed caretaker or employee thereof." The term "caretaker" is defined in KRS 209.020(6) as "an individual or institution who has the responsibility for the care of the adult as a result of family relationship, or who has assumed the responsibility for the care of the adult person voluntarily, or by contract, or agreement."

The indictment was under KRS 209.990(2) which provides that "any caretaker who knowingly and willfully abuses, neglects, or exploits an adult within the meaning of this Chapter" is guilty of a class C felony if the prohibited conduct results in serious physical or mental injury or permanent disability or a class A misdemeanor if the adult suffers minor physical injury or temporary disability.

Caretenders provided services for Odell by contract and thus was clearly a caretaker as defined in KRS 209.020(6). Consequently, Caretenders was subject to liability under KRS 209.990(2). It is true that a corporation can only act through its agents. Caretenders' agents in the case at bar included not only the three named defendants, but the live-in aides as well. Thus, we see no inconsistency in the verdict.

G. & H. Cattle Co. v. Commonwealth, 312 Ky. 315, 227 S.W.2d 420 (1950), relied upon by Caretenders, is not applicable to this case. G. & H. Cattle was a corporation which operated a cattle-feeding operation. The company and its officer in charge of operations at the feed lot were indicted for committing a nuisance. The charges stemmed from allegations that sewage overflowed from ponds into the Salt River. The trial court directed a verdict in favor of the named officer, but the corporation was convicted. The judgment was reversed on appeal.

The Court stated that it was unable to understand how the corporation could be liable when the officer in charge of the operation was given a directed verdict because the corporation was acting solely by and through the officer. The Court analogized the situation to when a master and servant are jointly indicted for the latter's negligence and if the jury finds the servant not negligent, the master cannot be held liable.

One reason we believe G. & H. Cattle, supra, is not applicable to this case is that the Court reversed the judgment because of insufficient evidence. Thus, the statements by the court regarding inconsistent verdicts should be considered dicta. In addition, the three nurses were not solely responsible for Odell's care. Most, if not all, of Odell's daily routine care was performed, properly or not, by Caretenders' live-in aides.

A related issue is Caretenders contention the trial court's instructions resulted in an amendment of the indictment and its conviction on an offense not charged in the original indictment.

The Commonwealth asserts that Caretenders did not preserve this issue by failing to object on this ground when the instructions were given as required by RCr 9.54(2). Caretenders concedes that it did not make a timely objection, but maintains that the issue should be considered on appeal as a palpable error under RCr 10.26.

In United States v. Jones, 647 F.2d 696 (6th Cir.1981), the defendants did not make a timely objection, but the Court held that a charge which amends the indictment is plain error. Therefore, we will consider Caretenders' argument.

Caretenders reiterates its argument that the indictment charged it with violating KRS 209.990(2) solely through the actions of the three named defendants. The instructions allowed for conviction of the company through the conduct of its "agents, servants or employees." Caretenders claims that the instructions expanded and thus amended the indictment which is "prejudicial per se." United States v. Burkhart, 682 F.2d 589, 591 (6th Cir.1982).

The Commonwealth points out that the criminal statute on corporate liability, KRS 502.050, provides that a corporation is guilty of an offense when the conduct constituting the offense is engaged in by an agent of the corporation acting in the scope of his employment.

Caretenders asserts that because KRS 502.050 was not listed in the indictment, it had no notice that violation of KRS 502.050 was being alleged and thus that it could be convicted if the three named nurses were acquitted. Therefore, it maintains, it was convicted of an offense not charged in the indictment, which it was not prepared to meet. Caretenders also argues that it was...