State v. Dale, s. 71249
| Decision Date | 01 August 1989 |
| Docket Number | 71261,Nos. 71249,s. 71249 |
| Citation | 775 S.W.2d 126 |
| Parties | STATE of Missouri, Respondent, v. Roger DALE, Appellant. STATE of Missouri, Respondent, v. Jeanette GUINN and Milton Guinn, Appellants. |
| Court | Missouri Supreme Court |
Mary Elizabeth Ott, J. Martin Hadican, Clayton, Kenneth Crockett, Topeka, Kan., David C. Godfrey, Clayton, for appellants.
William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.
Barry A. Short, Cordell P. Schulten, Thomas L. Caradonna, James Schmidt, St. Louis, for amicus curiae.
The three defendants were found guilty of neglecting patients in an intermediate care nursing facility, in violation of § 198.070.11, RSMo 1986. 1 They appealed to the Court of Appeals, Eastern District, which transferred the case here because the defendants challenge the constitutional validity of the governing statutes. They also raise procedural points and argue that the evidence does not support the convictions. We affirm in part and reverse in part.
In late 1983 defendants Roger Dale and Jeanette Guinn (then Jeanette Prather) acquired interests in a facility known as the Geriatric Center of St. Louis. Dale and his wife apparently owned 50% of the stock and Jeanette 50%. Dale signed a license application as president which named Jeanette as vice president and director. She is a trained nurse and made regular rounds of patients at the facility following the acquisition. Some time after the application was filed she married Milton Guinn, who is not shown to have an ownership interest or a title. The evidence shows that he was on the premises when she was there and exercised supervisory authority. Dale is not shown to have dealt regularly with patients, but was often present and was regarded by employees as a supervisor.
A temporary operating permit for an intermediate care facility was issued December 28, 1983. In January of 1984 the Department of Social Services, Division of Aging conducted an inspection of the facility. Kaye Jackson Allen was the responsible official. Allen noted some problems but wanted the new owners to have the opportunity to correct these problems. In April, the facility was given a clean bill of health.
Allen conducted another inspection in late August of 1984, lasting more than a week and culminating in an exit interview. She noted numerous problems, including failure to turn bedfast patients regularly, failure to keep these patients dry, patients not receiving adequate food and water, failure to give required medication, and general lack of cleanliness. She spoke with all three of the defendants and they represented that they would see that corrective action was taken.
Allen conducted a "55-day reinspection" in October of 1984. She found no improvement in the deficiencies noted during her August visit, but rather regression. All three defendants and their lawyers were present at the exit interview. Jeanette assumed a hostile attitude, accusing Allen of lying.
There was a further reinspection in December of 1984. Allen noticed the same problems that she had observed at the August and October inspections. All three defendants were present at the exit interview. Jeanette again manifested hostility and accused Allen of lying. Allen reported her findings to the Division of Aging.
Count I, on which all three defendants were found guilty, alleged that the defendants knowingly neglected Cora Foster, age 88. Cora had had problems with decubitus ulcers, commonly known as bedsores. These are caused by pressure. They may progress through four stages. At the fourth stage bone or muscle is exposed. In order to prevent the formation and progression of bedsores it is necessary to turn the patients regularly, to keep them dry, and to provide proper nutrition and hydration. There was expert testimony that decubitus ulcers do not proceed to the fourth stage if a patient receives proper care.
Cora had been hospitalized for treatment of decubitus ulcers. When she was returned to the facility in August of 1984 her ulcers were healing. After her return she developed additional decubitus ulcers and by December 20, 1984 her ulcers had progressed to the fourth stage. There was also evidence that her required dressings and nutrient for her tube feedings were sometimes not available, and that there were not enough employees to turn her and other bedfast patients as required. She was removed to another facility in January of 1985, where she soon died. The decubitus ulcers contributed to her death.
The court found Dale and Jeanette guilty of knowing neglect of Leona Cooper as charged in Count VII. Leona was hospitalized on account of decubitus problems, returning to the facility in August of 1984. She also had a gastrostomy tube. The hospital physical therapist, who also worked at the geriatric center, was instructed that the tube had to be kept dry. Nevertheless Jeanette, over the therapist's objection, assisted in holding Leona in a whirlpool bath so as to cause the tube to become wet. Leona's decubitus ulcers also deteriorated, progressing to an advanced stage.
Dale and Jeanette were also convicted of knowingly neglecting Eula Davidson, who required lanoxin, a heart medication. There was evidence that absence of the medicine would endanger her life. Davidson did not receive this medication between August 16 and August 24, 1984, because none was available. She died on August 27, 1984. The state did not establish that she died because of lack of the medication.
The evidence showed that there were frequent shortages of nutrients for patients fed through tubes, dressings for bedsores, linens, clothing, medicines and razors. There was also a shortage of employees needed to turn the bedfast patients as required. Shortages were reported to all three of the defendants. The trial court also found that the nurse's notes, reciting such things as turning of bedfast patients, were inaccurate and undependable. It may be of interest that turns were recorded which were not made.
The evidence as to the knowledge of the defendants about the neglect charged in the counts on which guilt was found will be discussed later.
The defendants argue that § 198.070.11 is unconstitutionally vague because it does not advise the defendants as to what they must do or must avoid in order to avoid being found guilty of criminal conduct. The statute reads as follows:
Any person who knowingly abuses or neglects a resident of a facility shall be guilty of a class D felony.
The statute requires a finding of knowing neglect. "Neglect" is specifically defined as follows:
[T]he failure to provide, by those responsible for the care, custody, and control of a resident in a facility, the services which are reasonable and necessary to maintain the physical and mental health of the resident, when such failure presents either an imminent danger to the health, safety or welfare of the resident or a substantial probability that death or serious physical harm would result. Section 198.006(11), RSMo 1986.
All that need be shown is neglect, as so defined, and the defendant's knowledge of the neglect. These words are words of plain meaning and common understanding.
Counsel for both sides profess inability to locate authority from other jurisdictions construing nursing home statutes. Our research has disclosed several cases sustaining the constitutional validity of similar statutes.
In State v. McKee, 392 N.W.2d 493 (Iowa 1986) defendant challenged as unconstitutionally vague Iowa Code § 726.7 which provides:
A person commits wanton neglect of a resident of a health care facility when the person knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a resident of a health care facility.... Wanton neglect of a resident of a health care facility is a serious misdemeanor.
The Supreme Court of Iowa held that portion of the statute prohibiting injury to the physical welfare of the resident gives fair warning and provides sufficient standards to advise as to what conduct is prohibited, particularly in light of the requirement of acting "knowingly." Id. at 495.
In State v. Brenner, 486 So.2d 101 (La.1986) the defendant argued, inter alia, that the term "neglect" as used in LSA-R.S. 14:93.3 was unconstitutionally vague. That section provides as follows:
Cruelty to the infirm is the intentional or criminally negligent mistreatment or neglect whereby unjustifiable pain or suffering is caused a person who is a resident of a nursing facility, mental health facility, hospital or other residential facility ...
Noting that "criminal negligence" modified "neglect" and "mistreatment," and was defined in the statutes, the court held that the statute was sufficiently clear that persons of ordinary intelligence could understand its meaning. Id. at 104.
The defendant in People v. Coe, 131 Misc.2d 807, 501 N.Y.S.2d 997 (Sup.1986) was convicted of wilfully violating the Public Health Laws, which prohibit the physical abuse and mistreatment of a resident. The statute at issue incorporated and made reference to other sections and state regulations, including the "Patients' Bill of Rights." The regulations defined "abuse" and "mistreatment." The court found this sufficient to give the defendant warning of the type of conduct deemed inappropriate.
Several of our cases uphold statutes which speak in similarly general terms.
This Court in State v. Brown, 660 S.W.2d 694 (Mo.banc 1983) upheld § 568.060.1(a), RSMo 1978, which made abuse of a child a class D felony. The terms, "cruel and inhuman punishment" were found to be sufficiently definite to advise as to the conduct prohibited. In State v. McMilian, 649 S.W.2d 467 (Mo.App.1983), the court held that the terms, "rude", "angry", and "threatening" as used in § 571.115 (Repealed), were of such common usage as not to be vague. In a dated...
To continue reading
Request your trial
-
State v. Vaughn
...liability. Id. “[A] scienter requirement may mitigate a law's vagueness especially with respect to the adequacy of notice....” State v. Dale, 775 S.W.2d 126, 131 (Mo. banc 1989) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.......
-
State v. Shaw
...intent to defraud."). Indeed, this Court relied, in part, on this line of cases in rejecting a void-for-vagueness challenge in State v. Dale, 775 S.W.2d 126, 131 (Mo. banc 1989) ("requirement of knowledge is the saving grace of the criminal We hold, therefore, that the scienter element of S......
-
State v. Hatton, s. 78277
...("substantial risk" is not vague term under child endangerment statute since statute required defendant to act knowingly); State v. Dale, 775 S.W.2d 126, 131 (Mo. banc 1989); (requirement that defendant act "knowingly" rendered statute proscribing "neglect" of nursing home residents not vag......
-
State v. Lee Mechanical Contractors, Inc.
...at 793; State v. Mahurin, 799 S.W.2d 840, 842 (Mo. banc 1990), cert. denied, 502 U.S. 825, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991); State v. Dale, 775 S.W.2d 126, 131 (Mo. banc 1989). The statute, on its face, proscribes a comprehensible course of conduct and can constitutionally be applied to ......