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Legal Speak

Criminal Law Liability

Published April 26, 2010 11:32 AM by Tony DeWitt

Recently in Thibadaux, Louisiana the criminal law process worked. It worked because the nursing home in question worked with the state investigators. They turned over records and made their employees available to the investigators. Doing so allowed them to keep a bad situation from becoming much worse.

Too often when bad things happen the first instinct of an organization's leaders is to suppress the facts and deny everything.  While this often works in the movies, it doesn't often work in real life when something like a patient death arises. This is because police and investigators can be very tenacious, and the truth often finds its way to those investigators anyway. It is far better to help find the truth with the investigators than to explain why you suppressed evidence early on.

In Thibodaux a 93-year-old nursing home resident somehow evaded the protections built into the nursing facility and managed to get outside in freezing weather in January. When discovered, the resident had a core temperature of 83 degrees, and he died a few months later. The cause of his death has not been released, but it doesn't take a rocket scientist to figure out that it was likely related to the exposure and the hypothermia. 

A resident death under such circumstances is a tragedy. That tragedy can be compounded if people try to cover it up. In this case the nursing home and its employees cooperated fully with the police and the prosecutor, and as a result, no one will be charged in the death. This is because the prosecution could not prove that anyone's actions were, in fact, criminal.

Criminal law violations are rarely asserted against nursing home employees for good reason. No nurse, aide, or administrator can be on guard and in control of numerous residents at all times. Since a facility can't assign one staff member to every single resident, it must develop systems and methods to assure that patients are safe. In this case it appears that two employees, who should have checked on the resident during the night, failed to document that they did so.  The employees were fired, but they were not criminally charged. This is because the resident was capable of getting outside on his own, and no staff member assisted him, according to the investigation.

But if a facility wants to get indicted, or have its employees and administrators indicted, the first and best way is to obstruct a police investigation and destroy records. When facilities take these steps the results are almost always bad for the facility, and bad for the personnel involved. Not only does such an activity engender criminal liability, it often results in civil liability as well. Destruction of records creates a presumption, in many states, that those records would not have helped the party's case.

When a tragedy occurs at a nursing home, the first step is to secure the right kind of lawyer. If there is even a hint of a criminal probe, a criminal lawyer should be retained to advise the employees and help direct the investigation internally. A civil lawyer should be retained if there is any possibility of a civil lawsuit over the same set of facts.

posted by Tony DeWitt
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Hospital Administrators and well as primary care phicnsiays have demonstrated that they can no longer  police  themselves.  We have seen what happened with Penn State and the Catholic Church as the truth finally came out about all of the many abuses.  Once the State Laws and Federal Laws are applied to the hospitals and doctors as they are with the  regular population  then things will change and order will be made out of chaos.  Doctors are not God and the laws of the U.S.A. are to protect all of us from crimanl activity which can lead to death.  These needs to be a punishment for falsifying Death Certificates such as loss of medical license.

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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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