State v. Community Alternatives
| Decision Date | 25 August 2008 |
| Docket Number | No. 28046.,28046. |
| Citation | 267 S.W.3d 735 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. COMMUNITY ALTERNATIVES MISSOURI, INC., d/b/a Turtle Creek Group Home, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Stephen L. Hill, Jr., Maxwell Carr-Howard, Blackwell, Sanders, Peper Martin LLP, Kansas City, Scott A. Lipke, Jones & Demund, L.C., Cape Girardeau, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for respondent.
Community Alternatives Missouri, Inc., d/b/a Turtle Creek Group Home, (defendant) was convicted of resident neglect following a jury trial.1 §§ 562.0562 and 630.155. This court affirms.
The information alleged that defendant committed the Class D felony of resident neglect. It charged that employees of defendant, "on or about between November 28, 2001, and January 10, 2002, . . . neglected Gary Oheim, a resident of a residential facility licensed by the Missouri Department of Mental Health, by failing to provide the services which were reasonable and necessary to maintain the physical and mental health of said Gary Oheim, which presented an imminent danger to the health, safety or welfare of said Gary Oheim." The information charged "that under Section 562.056.1(3), RSMo, Mary Collura engaged in and knowingly tolerated the conduct constituting this offense as a high managerial agent of the defendant and acted within the scope of her employment and in behalf of defendant."
Defendant is certified by the Missouri Department of Mental Health to provide services to persons who are developmentally disabled or mentally retarded. Defendant is licensed to provide individualized supported living services, residential habilitation services, and day habilitation services. Defendant's responsibilities include providing basic health and safety assurances to its residents.
Defendant is a corporation. Defendant's management chain includes a chief executive officer, regional vice presidents, and regional directors. Defendant operates more than 30 group homes, including Turtle Creek Group Home at Bolivar, Missouri (Turtle Creek). Its management chain for the operation of the group homes is divided into three divisions — North, Central, and South. Each division is headed by an executive director, an associate director, and a program coordinator. Turtle Creek is part of defendant's South division. Amy Follis was executive director of that division, Diane Bickham was associate director, and Lisa Martin was program coordinator.3
Mary Collura was lead staff person for two of the group homes in the South division, Turtle Creek and Forest Ridge. Lead staff person is a management position. Collura was entrusted with the care, safety, health, and well-being of the residents of Turtle Creek. Collura's responsibilities included managing residents' medical care and supervising the staffs at Turtle Creek and Forest Ridge. Collura attended management meetings with Diane Bickham. She also performed training for the direct support staff for multiple homes within the South division. She gave job evaluations, disciplined support staff, and had authority to write checks on residents' accounts to buy personal items for them. She was provided a company credit card for use in purchasing supplies.
Mary Collura had authority to take residents to the doctor when necessary. She was responsible for getting residents to their appointments on time and for maintaining residents' prescriptions and refills. Her duties included ensuring that residents' medical care was properly documented and relaying medical information regarding residents to case managers with the Department of Mental Health.
Gary Oheim was a resident of Turtle Creek from February 2001 until his death on January 30, 2002. He was mentally retarded and suffered from cerebral palsy. He was confined to a wheel chair. He could not move himself. He had to be repositioned often to prevent bedsores from developing.
Oheim was taken to the Associates of Medicine Clinic (the clinic), where Joe Follis was a nurse practitioner, for treatment on October 22, 2001.4 Patty Price, an aide at Turtle Creek, attended the visit with Oheim. A nurse at the clinic documented a Stage I decubitus ulcer — the technical term for a pressure sore or bedsore — on Oheim's right knee and right hip. Turtle Creek staff was instructed to change Oheim's position frequently and to return him for re-evaluation October 26.
Johanna Brothers is a nurse who was employed by defendant to review medical documentation. Collura asked her to look at Oheim's right hip to determine if it was "out of place." Ms. Brothers observed a dime-sized bedsore on Oheim's hip. She brought it to the attention of Collura and instructed her to inform Oheim's doctors about the bedsore at Oheim's next appointment.
Oheim was taken to the clinic on October 30 and seen by Joe Follis; however, Follis did not perform a full body examination and did not see the sores on Oheim's body. Follis next saw Oheim on November 6. Follis diagnosed Oheim with a swelling of the right lower extremity and an ulcer of the right hip and coccyx, basically the tail bone. Treatment was prescribed and instructions given for Oheim to be brought back to the clinic in two weeks for re-evaluation.
On November 8, Oheim's legal guardian attended a quarterly meeting at Turtle Creek regarding Oheim's care. The sores Oheim was experiencing were not mentioned at the meeting.
Joe Follis examined Oheim again on November 28. His examination notes state that the ulcers were improved and directed that the same treatment be continued. He instructed that Oheim be brought back for a check-up in one month or sooner if problems developed. However, Oheim was not seen again by Follis or by any other outside medical personnel between November 28, 2001, and January 5, 2002.
Oheim was brought to the clinic on January 5, 2002. He was again seen by Joe Follis. Ms. Collura was also present. Follis asked to see Oheim's hip and asked Collura to lean Oheim forward in his wheelchair, but Collura told Follis that was not necessary. Collura leaned Oheim to the side while he remained seated in the wheelchair. Joe Follis examined Oheim in the wheelchair while Oheim remained fully clothed. Follis testified that he should have known Oheim had bedsores and should have examined for them; that had he done so he would have known Oheim's sores were worsening.
Patty Price was present for Mr. Oheim's January 5 appointment. Price verified that Collura did not show Oheim's buttocks to Follis while Price was in the room with them. Price asked Follis if Oheim needed medicine and was told that he did not.
On January 9, Oheim was taken to the clinic again and seen by Joe Follis. Follis performed a full body examination of Oheim. Oheim was diagnosed with a Stage IV ulcer on his left buttock, a Stage II to III ulcer on his right hip, a Stage I ulcer on his left hip and right ankle, and a staph infection on his left buttock.5 The tissue around the ulcer on the left buttock was described as necrotic — it had turned black and blue colored and emitted a bad odor.
Follis consulted Dr. Zolkowski, the clinic's consulting physician, regarding treatment. A culture was taken to see what type of bacteria was present in the wound and a prophylactic antibiotic prescribed pending that determination. An appointment was made with a plastic surgeon, Dr. Reynolds, for January 11. The treatment that was prescribed in the meantime was to frequently turn Mr. Oheim and keep the wound clean and dry. Oheim was returned to Turtle Creek pending his appointment with Dr. Reynolds.
Mr. Oheim was admitted to the hospital on January 10. Dr. Reynolds performed a procedure to treat his sores. Dr. Reynolds also consulted a general surgeon, Dr. Milholen, and requested that she perform a colostomy on Oheim. Dr. Milholen explained that Dr. Reynolds was concerned about the ability of the sores to heal; that one of the sores was constantly contaminated by feces due to the sore's location. Dr. Reynolds thought a colostomy would help the problem.6
Dr. Milholen, as a general surgeon, had experience treating ulcers. She testified that the colostomy was a necessary surgery to heal the ulcers. She examined Mr. Oheim on January 14 and performed the surgery January 15. She stated it was initially successful. However, she was called at 11:00 p.m. that night and told that Mr. Oheim was having serious complications. He had been removed from anti-seizure medication he was taking before the surgery because the oral medication would conflict with requirements for surgery. When Dr. Milholen returned to the hospital, she found that Oheim had experienced a seizure and had herniated several loops of his small intestine into the colostomy bag. Dr. Milholen performed a second surgery in the late evening January 15 and early morning January 16 to repair the herniated intestine.
Mr. Oheim died January 30. An autopsy was performed. The physician who performed the autopsy, Dr. Shelley, testified that colostomy was a necessary and standard procedure to heal Oheim's ulcers due to their location. He concluded that Oheim died of complications of medical problems including the large ulcers, an infected gallbladder, and a necrotic bowel. Dr. Shelley believed the gallstones were a preexisting problem. It was his opinion that the necrotic bowel was likely caused by infection associated with the ulcers. Dr. Shelley's opinion was that the bedsores were the precipitating event leading to Mr. Oheim's death; that had Mr. Oheim not had the deep sores, he would have lived longer.
Another physician, Dr. Whitt, testified and stated the...
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