Heydinger v. Adkins
| Decision Date | 22 July 1987 |
| Docket Number | No. 17508,17508 |
| Court | West Virginia Supreme Court |
| Parties | David K. HEYDINGER, M.D., Director, West Virginia Department of Health v. Ida Mae ADKINS, d/b/a Adkins Rest Home. |
Syllabus by the Court
1. A statement is not hearsay if the statement is offered against a party and is his [or her] own statement, in either his [or her] individual or a representative capacity. W.Va.R.Evid. 801(d)(2)(A).
2. Where a party, after having submitted to a polygraph examination, makes any statement constituting an admission against interest, such testimony is admissible at trial pursuant to W.Va.R.Evid. 801(d)(2)(A), provided that the admission was not procured by coercive conduct or a denial of the party's constitutional rights.
3. "When the record in an action or suit is such that an appellate court can not in justice determine the judgment that should be finally rendered, the case should be remanded to the trial court for further development." Syl. pt. 2, South Side Lumber Co. v. Stone Construction Co., 151 W.Va. 439, 152 S.E.2d 721 (1967).
Charles G. Brown, Atty. Gen., J. Bradley Russell, Asst. Atty. Gen., for appellant.
Guy R. Bucci, J. Michael Ranson, Bucci & Ranson, Charleston, W.Va., for appellee.
This case is before this Court upon an appeal by Dr. David L. Heydinger, the Director of the West Virginia Department of Health (hereinafter the "DOH") from an order of the Circuit Court of Lincoln County. The order denied permanent injunctive relief sought by the DOH against Ida Mae Adkins, the appellee, enjoining her from operating a personal care home known as Adkins Rest Home in Hamlin, Lincoln County. 1 This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.
The Adkins Rest Home was originally licensed under the classification of a "personal care home" by the DOH pursuant to W.Va.Code, 16-5C-2(d) [1979]. 2 Because the home lacked the requisite staff and physical facilities to administer proper "nursing care," it could not qualify as a "nursing home" under W.Va.Code, 16-5C-2(c) [1979]. 3 Nevertheless, the appellant indicates that the DOH has experienced difficulty with the appellee for several years because she had accepted nursing patients for whom she was unqualified to care.
Since July 1, 1979, the Adkins Rest Home had been operating without a license in violation of W.Va.Code, 16-5C-6 [1977]. 4 In 1984, the DOH sought closure of the facility based primarily on two converging factors. First, three employees at the rest home came forward with corroborating accounts of incidents of abuse and neglect which had occurred at the facility. Second, despite the repeated efforts of the DOH, the appellee continued to accept nursing care patients for whom she was unqualified to care.
On July 17, 1984, Dr. L. Clark Hansbarger, then the Director of the DOH, brought suit in the Circuit Court of Lincoln County on behalf of the department to enjoin the operation of the Adkins Rest Home on the grounds that the appellee had been operating a personal care home without a license, in violation of W.Va.Code, 16-5C-6 [1977], and had subjected the residents of the facility to abuse and/or neglect, in violation of W.Va.Code, 9-6-1, et seq., as amended. 5 Based upon these allegations and several affidavits submitted in support thereof, the trial court issued a preliminary injunction closing the rest home and enjoining its further operation. The court also ordered the residents of the facility transferred to a hospital for medical examinations and appointed a guardian ad litem to represent their interests.
On November 19, 1985, trial before an advisory jury was commenced regarding whether or not a permanent injunction closing the facility was warranted. During the trial, the DOH presented witnesses which testified as to various abuses practiced upon residents of the home as well as the fact that the home had operated as an unlicensed facility for a number of years. 6
A detailed discussion of some of the specific abuses allegedly committed against the patients of the Adkins Rest Home is warranted in this case.
First, attendants at the Adkins Rest Home testified that the appellee would cut the patients' bedsores without anesthesia, indicating that, at times, the appellee would cut down to the bone. The attendants' corroborating testimony revealed that often the attendants themselves were called upon to restrain the elderly patients while the appellee would cut them.
A second abuse that the DOH alleges the appellee has practiced upon the patients in this facility concerns the use of catheters. Evidence at trial established that patients who did not medically require catheters would be catheterized by the appellant. 7 The attendants also testified that at the appellee's direction they retrieved discarded catheters from the trash, cleaned them and subsequently reused the catheters on other patients. The attendants stated that several patients received infections from the reused catheters and that routinely they found dark and bloodied urine in the catheters after they had been used by the patients. 8 Testimony elicited on behalf of Mrs. Adkins denied such activity occurred at the home.
Prior to the commencement of the appellee's trial, an in camera hearing was held regarding the testimony of Corporal Robert D. Estep, a senior polygraph examiner with the West Virginia Department of Public Safety. The purpose of this hearing was to establish certain admissions made by the appellee to Corporal Estep regarding her care of patients at the rest home. This witness' testimony revealed that he had administered a polygraph examination to the appellee. There have been no allegations that Mrs. Adkins was coerced into submission to the polygraph examination. During his testimony, the officer opined that the appellee had been untruthful when he had questioned her regarding her treatment of patients in the personal care home and specifically asked her if she had performed minor surgery on patients by cutting their bedsores and whether she had catheterized patients and subsequently reused the catheters in other patients.
Corporal Estep testified that after he had administered the examination to the appellee, he advised her that she had failed it. A conversation ensued between Corporal Estep and Mrs. Adkins which reveals her admissions to specific allegations of abuse of which she had been accused by the DOH. The transcript of the in camera hearing reveals the following evidence which is undoubtedly critical to the appellant's case: 9
Mr. Haight: Q. And, tell us, as well as you can recall, what the nature of that conversation was, what you said and/or what Mrs. Adkins said? What happened then?
Cpl. Estep: A. After completing the test, uh, I advised Mrs. Adkins that she had, in fact, failed the polygraph examination, that she was not truthful to me, that she was untruthful during the test, and I told her that, you know, try to make the best of a bad situation is the only thing I could say, and, uh--
Q. And, did you say that?
A. Yes, sir; I did, and, uh, then we started talking, and I asked her if she, in fact, uh, had she, uh, inserted catheters or taken out catheters, or anything of that nature?
Q. Did she respond to that question?
A. Yes, sir; she did.
Q. And what did she tell you?
A. She said that she had. I asked her "had she, in fact, give[n] shots when she was not authorized to do so, you know, other drugs and narcotics for the patients, you know, and she stated that she had. Uh, one in particular, I asked her had she used an instrument or scalpel at any time and made any cuts or incisions, or what would be deemed as minor surgery on any of the patients, and she related that some of the patients are there for long periods of time, and they get real, bad bedsores, and she would turn them over take a scalpel and cut out the rotten area on that sore, and, you know, in an effort the way she related to get the area to heal, you know, that was her--what she had stated....
....
Q. Did Mrs. Adkins in any of her conversation with you in connection with the cutting on the ulcers indicate how deep she cut?
A. Yes, sir.
Q. What did she say in that regard?
A. She said some of the areas that were rotten, you know, had to be cut way down almost to the bone.
The trial court then questioned Mrs. Adkins regarding her conversation with Corporal Estep following the administration of the polygraph examination.
THE COURT: Mrs. Adkins, you have been previously sworn in the case and have testified previously. The matters we are now speaking of relates to the events that occurred on June 27, 1984, at Company B Headquarters in South Charleston, wherein you were interviewed and subsequently run on a polygraph by Cpl. Estep, and thereafter had a further conversation with Cpl. Estep. The questions I am going to ask you, it has been indicated in this hearing you were asked the following questions:
You were asked "if you had ever inserted or removed catheters?" Cpl. Estep indicated your response was you had. Were you asked that question and did you make that response that he has indicated.
....
The DOH sought to proffer this testimony in the presence of the jury. The trial court, however, ruled that the evidence...
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