State v. Serebin

• Decision Date: 26 July 1983
• Docket Number: No. 82-232-CR,82-232-CR
• Citation: 114 Wis.2d 314,338 N.W.2d 855
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Stephen SEREBIN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 855

338 N.W.2d 855

114 Wis.2d 314

STATE of Wisconsin, Plaintiff-Respondent, v. Stephen SEREBIN, Defendant-Appellant.

No. 82-232-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 17, 1983.

Opinion Released July 26, 1983.

Opinion Filed July 26, 1983.

Review Granted.

Robert E. Sutton, Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Kirbie Knutson, Asst. Atty. Gen., for plaintiff-respondent.

Before FOLEY, P.J., and DEAN and CANE, JJ.

FOLEY, Presiding Judge.

Stephen Serebin, a nursing home administrator, was convicted of homicide by reckless conduct, party to a crime, secs. 940.06 ¹ and 939.05, Stats; and twelve counts of neglect of nursing home residents, ² party to a crime, secs. 940.29(7) ³ and 939.05, Stats. ⁴ Because the state failed to prove that Serebin's conduct caused a death or caused harm to any nursing home resident, we reverse the convictions and remand this matter to the trial court with directions to vacate the judgment and dismiss the complaint.

The basis for the reckless homicide charge was that one of the residents left the nursing home and died of exposure to cold. The basis for the twelve neglect charges was that residents lost weight or developed bedsores. The state claims that Serebin caused the death, bedsores, and weight loss by failing to provide sufficient staff and adequate diet. ⁵

To convict Serebin of any of the charged crimes, the state must prove beyond a reasonable doubt that a causal relationship existed between Serebin's conduct and the harm. ⁶ See State v. McClose, 95 Wis.2d 49, 51-54, 289 N.W.2d 340, 341-42 (Ct.App.1980); Wis JI--Crim 1160 (1962); Wis JI--Crim 1270 (1974). ⁷ Although a jury may draw reasonable inferences from the evidence, Serebin cannot be convicted on mere suspicion or conjecture. See State ex rel. Kanieski v. Gagnon, 54 Wis.2d 108, 117, 194 N.W.2d 808, 813 (1972). Whether the evidence was sufficient to prove causation beyond a reasonable doubt is a question of law. See Seraphine v. Hardiman, 44 Wis.2d 60, 65, 170 N.W.2d 739, 742 (1969). We independently review questions of law. First National Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).

Serebin was the administrator of the Glendale Convalescent Center when Bruno Dreyer, a resident, left the facility and died of exposure. He died between midnight and 3 a.m., when the temperature was between 8? and 15? F. His body was found outside the facility between 8 a.m. and 8:30 a.m., after the morning shift discovered that he was missing.

When Dreyer left the facility, there were only two aides and one nurse on duty for the 200 residents on three floors. An aide put Dreyer to bed at about midnight. She looked into the room from the corridor sometime later, and it appeared to her that Dreyer was in his bed. On the basis of information the aides gave her, a nurse made an entry on Dreyer's chart that the side rails on his bed were up, he was checked every two hours, there were no problems, and he slept well.

The jury could not reasonably infer from this evidence that Serebin's failure to provide sufficient staff, whatever number that may be, caused Dreyer's death. To meet its burden, the state had to prove at the very least that sufficient staff would have prevented Dreyer from leaving the facility unnoticed. The most favorable inference that can be drawn from the state's evidence is that a reasonable number of additional staff would have made it less probable that Dreyer could leave unnoticed. An unspecified degree of probability does not permit the inference of a fact beyond a reasonable doubt.

Also, even with efficient two-hour bed checks, Dreyer could have died of exposure before his absence was discovered. There is no indication of how quickly Dreyer died when exposed to the 8? to 15? F temperatures. For all the jury knew, Dreyer could have left the facility right after one bed check and died before the next bed check.

The state also did not prove a causal connection between the lack of staff and the bedsores and weight loss. There was undisputed testimony that there are many causes of bedsores and weight loss in elderly nursing home residents. Age, insufficiency of the venous or arterial systems, nutrition, albumin, the ability of certain body tissues to repair themselves, and chronic disability all influence the development of bedsores. Weight loss may result from metabolic problems despite normal food intake, and elderly people tend not to eat as well because of depression, a decrease in total number of taste buds, and denture problems. Because of the many possible medical causes, the determination of the specific cause of bedsores or weight loss in an individual resident required special medical knowledge or experience, which we cannot presume the jury had. This required the state to prove by expert opinion testimony that the cause of each resident's bedsores and weight loss was Serebin's neglect in failing to hire sufficient staff or provide an adequate diet. See Kelly v. Hartford Casualty Insurance Co., 86 Wis.2d 129, 134-35, 271 N.W.2d 676, 679 (1978).

The expert testimony, even considered in the light most favorable to the convictions, left the question of cause to speculation. None of the experts examined any of the twelve residents with the bedsores or weight loss. No expert gave an opinion on a specific cause for a specific resident. No expert gave an opinion that any bedsore or weight loss was due to Serebin's neglect. The closest the state came to providing any cause was its expert testimony that bedsores should be preventable with sufficient and adequate...