Criminal Liability for Negligent Acts
I once had a boss who said that being lazy wasn't a crime, because if it was, there would never be anyone to mind the prisons. It is human nature, sometimes, for folks to be lazy. People fail to put medication back into the refrigerator. People forget that a patient is on a bed pan. They forget to check the temperature of the food because it's almost always lukewarm anyway. People get distracted, and sometimes, they just figure that someone else will fix the problems they created. Most people, even when they act lazy, don't intend to hurt anyone. But sometimes it happens.
Most of the time when someone is lazy or incompetent, and someone gets hurt, the worst that can happen is that an insurance company winds up paying a settlement or a verdict from a malpractice lawsuit. If the negligence is exceptional, and the state is prone to doing something about it, sometimes a licensure action is filed against the nurses or administrators who the state feels were at fault. In egregious cases Medicare may impose sanctions. In 99% of all cases, this is the worst that can happen.
But, as the Michael Jackson controversy is making clear, there is a fallback position for the state when negligence is so bad that it becomes "gross negligence" or "criminal negligence." When that happens the state can always bring an action for involuntary manslaughter or negligent homicide. In the Jackson case the issue relates to the inappropriate prescription of anesthesia medication. The negligence in giving this medication without proper monitoring, it has been suggested, is tantamount to gross negligence because no reasonable practitioner would ever do it.
As the case of Alvador Thompson demonstrates, when negligence in the care of a skilled nursing facility resident results in a horrific death, and the negligence is especially troubling, the state can and often does bring criminal charges against those responsible.
In Thompson's case she was assigned to feed 79 year old Ronald Myers breakfast in October of last year. According to media reports, Myers suffered from Alzheimer's disease and was aphasic. Thompson was assigned to feed him. Apparently she fed him steaming hot cereal, without testing the temperature of the liquids, and caused second degree burns in his esophagus. He stopped eating and died two weeks later. The decedent's daughter told police that she had reported the incident because the facility delayed treatment for half a day.
How does a case like this get referred for criminal prosecution? In her plea agreement and "allocution" where she testified that she was guilty, Thompson said she did not know how hot the cereal was, and she did not test it, and she should have. Because the patient couldn't speak, she didn't know she was burning him. Anyone who has ever fed a patient knows that there is something about Thompson's story that just doesn't ring true.
Of course, even in an Alzheimer's patient, a patient whose responses to verbal stimuli will often be inappropriate, responses to painful stimuli are still present. It is difficult to understand how Thompson could have continued to feed Myers hot cereal she did not know was hot, when Myers would likely have been reacting with a pain response. At least one source characterized the feeding as "pouring hot cream of wheat down the patient's throat." Thus, even if she failed to test the first bite, the pain response should have alerted her to the need to check the temperature on the second bite and beyond. Her failure to do so, and the inference that she ignored the patient's non-verbal complaints and pain response, likely contributed to her prosecution.
Frequently a prosecutor will charge voluntary manslaughter or intentional homicide, and then bargain the charge down to involuntary manslaughter in the situation where the evidence is insufficient to support a murder case. Here, although the negligence ended in the patient's death, and there was at least some indication that the actions of the aide were intentional, the state likely could not have prosecuted for intentional homicide because the aide could simply have claimed that all she wanted to do was feed the patient, she was in a hurry, and normally all hot food would do would be to burn the patient's mouth. A nurses aide might truthfully testify that she had no idea it would cause death. Thus an involuntary manslaughter charge was likely the right call. Thompson will get between 2 and five years in prison to think about her behavior.
All nursing assistants and aides, as well as any volunteers used to help feed patients at mealtime, should be inserviced on watching for a pain response, and on the importance of testing the temperature of the food prior to feeding. Posters mounted in the feeding area advising aides to "Check the Temperature" and showing the proper method are also a good idea in risk management. In the event that an adverse event occurs, having taken such precautions tend to ensure that consequences are not visited upon nursing management or home administration.
Any aide or assistant who demonstrates a lack of empathy or an unwillingness to investigate a pain response in a patient should be counseled about that behavior. They should be told that pain responses often help keep small accidents and errors from becoming life-threatening events. And, as always, there is no substitute for active supervision of all staff in a skilled nursing facility.