Correll v. Com.

• Decision Date: 28 January 2004
• Docket Number: Record No. 3387-02-3.
• Citation: 42 Va. App. 311,591 S.E.2d 712
• Parties: Shirley CORRELL, v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

591 S.E.2d 712

42 Va. App. 311

Shirley CORRELL, v. COMMONWEALTH of Virginia.

Record No. 3387-02-3.

Court of Appeals of Virginia, Salem.

January 28, 2004.

John S. Edwards (Michelle C.F. Derrico; Law Office of John S. Edwards, on briefs), Roanoke, for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: HUMPHREYS, FELTON and KELSEY, JJ.

HUMPHREYS, Judge.

Shirley Correll appeals her conviction, after a bench trial, for abuse or neglect of her mother, Nellie Paxton, an incapacitated adult (in violation of Code § 18.2-369).¹ Correll contends the trial court erred in finding the evidence sufficient, as a matter of law, to establish she "knowingly, willfully or maliciously caused any injuries or failed to provide treatment, care, goods or services to [Paxton]." Correll further argues that the trial court erred by: 1) allowing a "nonmedical 'gerontologist'" to testify as a medical expert; 2) allowing the gerontologist to testify as to the credibility of Correll's statement to police; and, 3) allowing the gerontologist to testify as to an ultimate issue in the trial. For the reasons that follow, we affirm Correll's conviction.

I. Background

It is well settled that "[o]n appeal, we review the evidence in the light most favorable to the party prevailing below, together with all reasonable inferences that may be drawn." Benton. v. Commonwealth, 40 Va. App. 136, 139, 578 S.E.2d 74, 75 (2003).

So viewed, the evidence established that on October 27, 2000, Paxton died, while a patient at Roanoke Memorial Hospital. Paxton was 83 years old. The cause of her death was "pneumonia due to corporeal emaciation and inanition due to chronic starvation." However, Paxton had suffered from Parkinson's disease, dementia and hypertension for several years prior to her death.

On August 3, 2001, a Bedford County Grand Jury indicted Correll for abuse or neglect of Paxton, an incapacitated adult, in violation of Code § 18.2-369. During Correll's three-day trial on the charge, the Commonwealth and Correll presented testimony from a number of witnesses, including medical experts, and presented a voluminous amount of medical documentation. A summary of the relevant evidence follows.

Correll was appointed as Paxton's legal guardian in 1997 and was Paxton's primary caregiver at the time of her death. Correll and Paxton's other family members began caring for Paxton on a consistent basis in 1991. At that time, Paxton was hospitalized for "bad" weight loss and fluid in her lungs. After a short period in the hospital, Paxton began to gain weight and the fluid in her lungs cleared.

Paxton was hospitalized again in 1997 for a broken hip. When Paxton was released from the hospital, doctors explained to Correll that she should make sure that Paxton "exercised every day" and was "up and going." Paxton's doctors explained that if this was not done, Paxton would suffer from "other complications like pneumonia, bedsores and things of this sort." Accordingly, Correll hired a home health aide to assist with Paxton's rehabilitation. She also advised family members who helped with Paxton's care that they should make sure Paxton ate, make sure she took her pills, and make sure to "move her and keep her walking" so that Paxton "wouldn't get sore."

When visiting Paxton in 1997 and 1998, Carol Gray, Correll's sister, observed that Paxton appeared to be losing weight again, but "not drastically." Paxton's weight at that time was "around 130, 35 maybe."² Gray asked Correll about Paxton's continued weight loss and Correll told her Paxton's doctor had advised "[Paxton] would deteriorate, this was part of the disease or her Parkinson's disease."

Paxton was admitted to the hospital again in 1999, for another broken hip. Paxton put on "a little more" weight while she was in the hospital. After Paxton's hospital stay, Correll arranged for physical therapy for Paxton. Despite her advancing Parkinson's disease, Paxton healed substantially and "got up and was walking and everything."

Gray saw Paxton again during Christmas of 1999 and observed that Paxton had lost more weight. She also heard Paxton say, consistently, that she "hurt." When Gray asked Correll about this, Correll explained that Paxton said that "all the time, so basically they just, you know, ignored it."

Correll took Paxton to Dr. Adel Salama for a routine medical examination in January of 2000. At that time, Dr. Salama found that Paxton suffered from "advanced Parkinsonism, multi infarct dementia, hypertension, atrial fibrillation, osteoarthritis, along with early Stage 2 [bedsores]." Paxton displayed an albumin level of 3.9, indicating that she was not malnourished or undernourished at that time. Dr. Salama prescribed Duoderm patches for Paxton's bedsores, explained the care procedure for the bedsores to Correll, and advised Correll to keep him updated on Paxton's condition and to return for Paxton's regular follow-up examination in July of 2000. Paxton did not return to Dr. Salama in July of 2000 as scheduled.

In August of 2000, Gray visited Paxton again. Gray observed that Paxton "looked like a skeleton" and that her mental faculties had deteriorated to the point she was not sure Paxton "knew [she] was there."

Gray testified that when she saw Paxton again on September 9, 2000, during her niece's wedding, "[She (Gray) ] almost passed out." Gray said Paxton was in a wheelchair and that Paxton looked so "bad," she "looked like she should have been laid out in the coffin." Gray testified that she did not mention this to Correll, but asked Correll's daughter about it. Correll's daughter stated that Paxton "ate more than her and her dad put together," but "this was just her medical condition."

Letice Baldwin, Gray's daughter, also observed Paxton during the wedding on September 9, 2000. Based on Paxton's appearance, Baldwin "was surprised [Paxton] was alive."

Francis Paxton, Correll's sister-in-law, testified that Paxton had always had a "small frame" "from the waist up." However, when she saw Paxton at the September 2000 wedding, she was "shocked" at Paxton's appearance.

A few days later, on September 18, 2000, Correll called an ambulance claiming that Paxton "had not eaten for the last day and had gotten dehydrated."

Emergency medical technicians found Paxton sitting in a chair, unresponsive, severely dehydrated, and "pretty close to going into shock." Paxton required "advanced life support." Sherry Weeks, one of the EMTs that responded to Correll's call, testified that Paxton's condition was "not consistent with only being dehydrated for a day."

When Paxton arrived at the hospital emergency room, she was unresponsive and cachetic, or "extremely emaciated." "You could see her ribs" and her "spine bones." Paxton also had a "healing ulcer on her sternum, mid chest [sic]," an ulcer on her "sacral area," and a "severe" "active or open ulcer on her right hip."

Correll told emergency room nurses that Paxton "began two days ago with decreased appetite and fluid intake," and had been "losing weight for three weeks." Dixie Daniel, an emergency room nurse who treated Paxton, testified that her assessment of Paxton indicated that Paxton's condition would have taken "more than two days to occur" and that the bedsores found on Paxton would generally take "weeks" to form.

Another emergency room nurse, Tracey Allison Mann, testified that Paxton's condition upon arrival at the hospital was "shocking." Paxton was "morbidly emaciated," "covered with ... bedsores," and "contracted at every extremity in a fetal position." According to Mann, Paxton's contractures had "been in place for some time and were fixed." Mann testified that although Correll told her Paxton had been ambulatory just two days prior to her admission to the hospital, she believed Paxton had been "contracted" for greater than one month. Mann opined that Paxton's most severe bedsores, which displayed "black, dead tissue," would have resulted from a "prolonged" period of pressure of a "month or greater."

Dr. Salama examined Paxton when she was admitted to the hospital and observed that Paxton appeared clean, but suffered from "[v]ery severe" "undernutrition," "[m]oderately severe to severe" dehydration, and "[a]dvanced Stage 3" or "early Stage 4" bedsores. Because of Paxton's undernourishment and bedsores, as well as her age and Parkinson's disease with dementia, Salama thought, "I'm going to lose her."

Dr. Salama testified that bedsores are caused by "three or four factors": 1) "[t]he patient sitting in one position for a long time"; 2) "moisture of the skin"; and 3) "friction." He stated that Paxton was predisposed to suffer from bedsores, but that with proper care, such sores would not advance "into. Stage 3." Salama also stated that although Paxton's albumin had significantly decreased since January of 2000 (indicating undernourishment), albumin has "a long life," taking 21 days to display a change. However, he testified that refusal to take in fluids for 48 hours would be a sufficient time for Paxton to have displayed such severe dehydration.

Dr. Salama opined that Paxton's undernourishment and bedsores were severe:

But definitely what I'm guessing, that [sic] they developed over days, weeks—to [sic] weeks, but not hours or not 24. I don't think I have ever seen Stage 4 or Stage 3 [bedsores] developing over 48 hours.

He testified that it was not Paxton's Parkinsonism or atrial fibrillation that brought her to the hospital that day, but it was the bedsores, the undernourishment and the severe dehydration that "posed a significant threat on her life and health."

Paxton "slow[ly]" responded to treatment during her stay in the hospital. Paxton was discharged to a nursing home on October 3, 2000.

Just prior to Paxton's discharge to the nursing home, Bedford County Social Services contacted Martha Anderson, a geriatric nurse, and asked her to perform an...