State v. Kaiser

• Decision Date: 06 April 2004
• Docket Number: No. ED 82515.,No. ED 82517.,No. ED 82516.,ED 82515.,ED 82516.,ED 82517.
• Citation: 139 S.W.3d 545
• Parties: STATE of Missouri, Respondent, v. Charles B. KAISER, III, American Healthcare Management, Inc., and Claywest House Health Care, LLC, Appellants.
• Court: Missouri Court of Appeals

139 S.W.3d 545

STATE of Missouri, Respondent, v. Charles B. KAISER, III, American Healthcare Management, Inc., and Claywest House Health Care, LLC, Appellants.

No. ED 82515.

No. ED 82516.

No. ED 82517.

Missouri Court of Appeals, Eastern District, Division Three.

April 6, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 7, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Circuit Court, St. Charles County, Ellsworth Cundiff, Sr., J James W. Erwin, St. Louis, MO, for appellants.

James G. Gregory, St. Charles, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

Defendants Charles B. Kaiser III (Kaiser), American Healthcare Management, Inc. (AHM), and Claywest House Healthcare L.L.C. (Claywest), appeal from the judgment entered pursuant to jury verdicts, of convictions of class A misdemeanors of failing to report elder abuse under Section 565.188.¹ The court sentenced Kaiser to one year in jail and a fine of $1,000.00. The court fined AHM and Claywest $5,000.00 each. We affirm.

Factual and Procedural Background

These convictions stem from the failure of the defendants to report the abuse of Marshall Rhodes, a 78-year-old resident of Claywest who was beaten and thereafter died. Claywest operates the nursing home where Rhodes was a resident, but had contracted with AHM to provide management services, including the hiring and supervision of the administrator. Kaiser was the president and in-house counsel of AHM, which manages Claywest and other nursing homes. During 1998 and 1999, the Missouri Division of Aging had inspected Claywest and discovered numerous life-threatening violations. These violations endangered Claywest's operational license and its Medicare and Medicaid certification. In fact, from December 1998 to February 1999, Claywest was operating under a temporary license through a consent agreement with the Division of Aging and the Division had recommended a fine of $360,000 as a result of numerous violations of their standards.

AHM's employee handbook provided that instances of suspected abuse must be investigated by the administrator who would, after an investigation that might last up to two days, report, in turn, to AHM. AHM would then make the decision whether such instances should be reported. In fact, the administrator of Claywest, Betty Via,² confirmed that at a meeting of nursing homes managed by AHM, the attendees were instructed that they could not hotline an incident until they had gone through the corporate office and had spoken to either Kaiser or one of two other people. Kaiser had a history of punishing employees who had provided the Division of Aging with evidence of substandard care. Via bluntly testified that she felt she would lose her job if she hotlined the incidents involving Marshall Rhodes.

Marshall Rhodes, who could not walk and suffered from Alzheimer's disease, slept on a mattress that was just six inches off the floor. On July 28th, 1999, Karl Willard³ told two nurse's assistants that a resident threw his medicine on him and that Willard was "going to fuck him up." One of the assistants thought Willard was talking about Rhodes because he was standing in front of Rhodes's door at the time, but she did not take Willard's statements seriously because she thought he was just mad. About an hour-and-a-half later Willard came out of Rhodes's room. The same assistant asked Willard what he was doing in there and Willard made an unintelligible response. Both assistants at that time entered Rhodes's room and found Rhodes in the dark behind the door with his hands up "like he was defending himself." Rhodes's forehead was bleeding, and he asked, "Why do I get abused?"

Some days later, just past midnight and into the early morning hours of August 3rd, a nurse's assistant was called to Rhodes's room, where she found Rhodes with his face covered in blood and scratches, and his hospital gown torn in half. There was "blood everywhere." Another Claywest employee testified that she saw a laceration on Rhodes's lower lip and that he appeared to have been beaten, and she told Via, the administrator, that Rhodes looked like he had been beaten.

Yet another employee testified that she saw Rhodes in his bed with his face cut up and bruised and that she proceeded to ask Via who had beaten Rhodes up. Via retorted that Rhodes had not been beaten up, to which the employee replied that there was a difference between a fist hitting a face and a face hitting the floor, and that Rhodes had been beaten up. She said that Via replied that she should mind her own business and that Via would get a statement from those who were involved. According to the medical records from Claywest, Rhodes may have rolled off his low bed onto the floor, injuring himself.

The nurse on duty took Rhodes's vital signs and called 911 to take him to the hospital. There Rhodes was treated and released back to Claywest within a matter of hours. One of the two nurse's assistants who had originally witnessed Willard's threat against Rhodes saw Rhodes after his release from the hospital. She said he appeared to have been "beat up real bad, he was bruised, his face was purple, his lips were swollen." She talked to the other nurse's assistant who had heard Willard's threat and they decided to report their suspicions about Willard to Via and the nursing director. On August 4th, they told both the director and Via that they thought Willard had beaten up Rhodes on July 28th. Shortly thereafter, one of these reporting nurse's assistants was fired.

Yet another nurse's assistant at Claywest testified that she saw Rhodes's face while he was sitting in a wheelchair at the nurses' station after he returned from the hospital. She recalled that his lip was swollen, his face was discolored, and the side of his face was swollen. She concluded that he appeared to have been hit multiple times. She told Via what she saw, that it looked like Rhodes had been hit and not like he had fallen. Via told her that she was not involved and that Via would question the people on duty the night Rhodes suffered the injuries.

On August 5th, Rhodes was found sitting in a wheelchair, unresponsive and with fixed, dilated eyes that were uneven in size, symptoms that were indicative of some kind of pressure on the brain. Rhodes was put in bed and had oxygen administered, and immediately thereafter taken back to the hospital, where he died on August 7th. The cause of death was originally given as aspiration pneumonia. The St. Charles Medical Examiner's Office began an investigation after being alerted by the funeral home that the death certificate now indicated a subdural hematoma. An investigator from the medical examiner's office contacted Claywest and its director of nursing, but was never told that anyone suspected Rhodes had been beaten. The medical examiner concluded that Rhodes had died of a head injury at the hands of another and instituted an investigation by the police.

On August 5th and 6th, 1999, Jeanne Harper, a facility surveyor with the Division of Aging, had a team in Claywest during a partial survey. Yet no one told her of any of the incidents involving Rhodes.

Via called Kaiser on August 9th, and advised him of the suspected abuse of Rhodes and that she believed it should be hotlined. Via again spoke with Kaiser about the matter on August 11th. On August 12th, Via met with Kaiser at corporate headquarters and reiterated that she thought the incidents needed to be hotlined, but Kaiser insisted that there be no hotline because he was meeting with Jeanne Rutledge, one of the supervisory personnel at the Division of Aging on August 13th, and he would raise with her the issue of whether a hotline call needed to be made. Rutledge testified that she met with Kaiser on the 13th, but that he never offered any significant details involving the suspected abuse of Rhodes and never even told her that Rhodes had died.

Via testified that she called Kaiser the afternoon of the 13th, and Kaiser told her that he had gone over the information with Rutledge and that she had said it did not need to be hotlined because it was an accident or injury of unknown origin. Kaiser told her they could simply "run it all through the team leader." Via called Harper, the team leader, that same afternoon, but was not able to speak with her until August 16th. During their conversation on the 16th, Via did not report any suspected abuse of Rhodes, but only told Harper that Rhodes had fallen twice, once on July 29th and again on August 3rd. She told Harper that Kaiser had told her that he had talked to Rutledge, and that Rutledge had told him that a report to her as team leader was all that was required. Via also told Harper she was not hotlining the incident because Kaiser had instructed her not to. Via never told Harper that Rhodes had died.

Harper called Via the next day, August 17th, and instructed her that the Rhodes incident needed to be hotlined. That same day, Via sent Kaiser the following e-mail:

Chuck,

Yesterday I spoke with Jeanne Harper and gave her some of the details of the M. Rhodes incident and she phoned back today and said her supervisor said I must HOTLINE this. So she is not taking any more of the details from me, but wants me to call it in. PLEASE RESPOND!! She did tell her supervisor that we had been working on the investigation and that is why we waited to call.

Betty

(Emphasis in original.) On August 18th, Kaiser responded as follows:

You may tell her that I personally spoke to Jeanne Rutledge who said this was an accident or injury of unknown origin that needs to be reported to the Team Leader. It is NOT a suspected abuse or neglect, and as such, is NOT something that gets Hotlined.

Chuck Kaiser

(Emphasis in original.)

Via never reported the suspected abuse. Kaiser never reported the suspected abuse. In fact, no one from Claywest or AHM ever reported the suspected abuse of Marshall Rhodes to the Division...