Einaugler v. Supreme Court of State of N.Y.

• Citation: 109 F.3d 836
• Decision Date: 10 March 1997
• Docket Number: D,No. 328,328
• Parties: Gerald EINAUGLER, M.D., Petitioner-Appellant, v. SUPREME COURT OF the STATE OF NEW YORK, Kings County, Neil J. Firetog, Honorable, Edward J. Kuriansky, and Dennis C. Vacco, Attorney General of the State of New York, Respondents-Appellees. ocket 96-2211.
• Court: U.S. Court of Appeals — Second Circuit

Page 836

109 F.3d 836

Gerald EINAUGLER, M.D., Petitioner-Appellant, v. SUPREME COURT OF the STATE OF NEW YORK, Kings County, Neil J. Firetog, Honorable, Edward J. Kuriansky, and Dennis C. Vacco, Attorney General of the State of New York Respondents-Appellees.

No. 328, Docket 96-2211.

United States Court of Appeals Second Circuit.

Argued Nov. 15, 1996.

Decided March 10, 1997.

Peter A. Chavkin (Michael J. Grudberg), Stillman, Friedman & Shaw, P.C., New York City, for Petitioner-Appellant.

Arthur G. Weinstein, Special Assistant Attorney General of the State of New York, (Dennis C. Vacco, Attorney General; Donald H. Zuckerman, Special Assistant Attorney General), for Respondent-Appellees.

Before: OAKES and CALABRESI, Circuit Judges, and HAIGHT, District Judge. ^*

CALABRESI, Circuit Judge:

Dr. Gerald Einaugler appeals from an order of the United States District Court for the Eastern District of New York (Korman, J.), entered March 8, 1996, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Einaugler had been convicted, after a jury trial in the New York State Supreme Court, of reckless endangerment in violation of N.Y. Penal Law § 120.20 and of willful patient neglect in violation of N.Y. Public Health Law § 12-b. In his habeas petition challenging the conviction, Einaugler argued (1) that there was insufficient evidence at trial to establish the elements of reckless endangerment or patient neglect beyond a reasonable doubt, (2) that the admission of evidence that the allegedly neglected patient subsequently died violated Einaugler's right to due process, and (3) that the laws under which Einaugler was convicted are unconstitutional as applied to him because they make criminal the exercise of medical judgment and because they provided inadequate notice that his actions were within their scope. He renews these arguments on appeal from the denial of his petition. Because we conclude that there was sufficient evidence to support Einaugler's conviction, and because we find his other claims to be without merit, we affirm the order of the district court.

I. BACKGROUND

The charges against Einaugler arose from his treatment of Alida Lamour, a patient at the Brooklyn Jewish Hospital Nursing Home (BJHNH), where Einaugler worked. On Friday, May 18, 1990, six days before she died, Lamour was returned to the nursing home after treatment for renal disease at the nearby Interfaith Hospital. At the nursing home, Einaugler, acting as attending physician, mistakenly ordered that a feeding solution be administered through Lamour's kidney dialysis catheter. Early on Sunday morning, May 20, 1990, after the feeding solution had been administered for two days, a nurse noticed that Lamour was having difficulty breathing, that her abdomen was distended, and that she had vomited. The nurse, realizing the error, immediately attempted to drain the remaining feeding solution out of the patient's peritoneal space through the catheter. At approximately 6 a.m. on Sunday morning, Einaugler was notified of his error and told of Lamour's condition.

At trial, there was conflicting evidence about the events of Sunday after 6 a.m. and before 4:30 p.m. There is no doubt that Einaugler called Dr. Irving Dunn, the Chief of Nephrology at Interfaith Hospital, who had treated Lamour during her last hospital stay, and sought his advice about Lamour. Einaugler testified that Dunn told him that it did not seem like an emergency, and that Einaugler should send Lamour to the hospital on Monday for further treatment. Dunn testified that he directed Einaugler to hospitalize the patient. His testimony is ambiguous as to whether he conveyed to Einaugler the importance of doing this immediately. Sometime after talking to Dunn, Einaugler wrote the following note in Lamour's chart: "Spoke to Doctor Dunn, (Renal). Told to send patient over for evaluation to IMC [Interfaith] ER [Emergency Room]." Dunn testified that this note accurately summarized his morning conversation with Einaugler. Einaugler instead testified that the note, although "grammatically incorrect," was written after Lamour had been sent to the hospital late Sunday afternoon and signified that he, Einaugler, had given instructions to send Lamour to the emergency room.

Later, between 11 a.m. and 2 p.m. on Sunday, Einaugler reported the mistake to Dr. Albert Khaski, the supervising physician at the nursing home. He told Khaski that Dunn had said that Lamour's condition was not an emergency and could wait until Monday for hospitalization. Einaugler testified that Khaski agreed. Khaski, on the other hand, testified that he had disagreed and had instructed Einaugler to transfer Lamour to the hospital that day. At approximately 4:30 p.m., a nurse informed Einaugler that Lamour was less responsive, unable to take food by mouth, and looked weak. Einaugler then ordered that Lamour be transferred to Interfaith Hospital, where testimony suggests she went essentially untreated until Monday morning. On Monday, Lamour received lavage to remove the remaining feeding solution from her peritoneal cavity and antibiotics to prevent infection. She nonetheless died four days later.

Einaugler was subsequently charged and convicted of reckless endangerment and willful neglect for delaying Lamour's hospitalization once he knew that to do so would create a serious risk of physical injury. He was sentenced to incarceration for fifty-two weekends. The Appellate Division of New York State Supreme Court affirmed his conviction, People v. Einaugler, 208 A.D.2d 946, 618 N.Y.S.2d 414 (1994), and the Court of Appeals denied his application for leave to appeal. People v. Einaugler, 84 N.Y.2d 1031, 623 N.Y.S.2d 187, 647 N.E.2d 459 (1995). Einaugler then petitioned for a writ of habeas corpus. Einaugler v. Supreme Court of the State of New York, 918 F.Supp. 619 (E.D.N.Y.1996). The district court denied his petition, but granted a certificate of probable cause, and stayed the judgment and conviction pending the disposition of Einaugler's appeal.

II. DISCUSSION

We review a district court's denial of a petition for a writ of habeas corpus de novo. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.1996).

A. Sufficiency of the Evidence

The Due Process Clause of the Fourteenth Amendment prohibits conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Consequently, a state prisoner "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979) (footnote omitted). Hence, we must consider whether, as a matter of federal law, there was sufficient evidence for a jury to find that the prosecution proved the substantive elements of the crime as defined by state law. See id. at 324 & n. 16, 99 S.Ct. at 2792 & n. 16; Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir.1993). ¹ In evaluating whether the evidence is sufficient, we must "view[ ] the evidence in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

Einaugler claims that the district court erred in finding that the trial evidence was sufficient to support his conviction. He argues that no reasonable jury could have found that he ignored the requisite standard of professional conduct in failing to send Lamour to the hospital before Sunday afternoon. We disagree. An appellant challenging the sufficiency of the evidence "bears a very heavy burden." Quirama v. Michele, 983 F.2d 12, 14 (2d Cir.1993) (citation and internal quotation marks omitted). Einaugler has not met that burden, for, as is not infrequently the case where sufficiency of the evidence is challenged, this is a situation in which a jury could have found, and apparently did find, that "the combination of many small pieces of valid evidence--each of which [was] established 'more probably than not' " was adequate, in sum, to establish the elements of each crime beyond a reasonable doubt. United States v. Martinez, 54 F.3d 1040, 1045 (2d Cir.1995) (Calabresi, J., concurring), cert. denied, --- U.S. ----, 116 S.Ct. 545, 133 L.Ed.2d 448 (1995).

The reckless endangerment charge required proof that Einaugler had recklessly engaged in conduct that created a substantial risk of serious physical injury. N.Y. Penal Law § 120.20. For Einaugler's act to be reckless, he must have grossly deviated from a reasonable person's standard of conduct and consciously disregarded a substantial and unjustifiable risk. See N.Y. Penal Law § 15.05 (defining "recklessly").

Despite the fact that when Lamour was finally sent to the hospital she was not treated until the next day, a rational jury could have concluded from Dr. Dunn's testimony and from Einaugler's note on the patient's chart: (1) that Einaugler called Dunn for instructions regarding Lamour's treatment, (2) that Dunn told Einaugler to transfer Lamour to the hospital, (3) that Dunn conveyed to Einaugler the importance of doing this promptly, and (4) that Einaugler ignored that message. Although Dunn did not recall whether he explicitly informed Einaugler that the transfer should be immediate, a jury could read his testimony as being unequivocal in directing Einaugler to transfer Lamour, and that this instruction conveyed immediacy. For example, he testified that he "directed ... Einaugler to have the patient admitted, period," and agreed that Einaugler's note in Lamour's chart accurately summarized his order to Einaugler "to send Alida Lamour to the hospital that Sunday morning." Einaugler's note itself, since it clearly can be read to state that Einaugler was told by Dunn to sent the patient to Interfaith Hospital's emergency room (and not simply to...