Legal Eagle Eye Newsletter for the Nursing Profession (6)6 Jun 98 

Quick Summary: Failing to call a doctor when a resident vomits seventeen times in forty-two hours is neglect. This would be a case of common law civil negligence.

   However, to criminalize a care provider’s neglect of a nursing home resident, it takes more than negligence.

   To be convicted of a crime for neglecting a resident’s needs, a care provider must have acted knowingly in the face of a substantial probability of serious harm or death to the resident.

  The resident died from a lower GI bleed which was unrelated to his vomiting.  MISSOURI COURT OF APPEALS, 1998.

   The director of nursing at an intermediate center was convicted of six felony counts of neglect of a resident of a nursing home facility. She received a two-year prison sentence, and filed an appeal. Although the Missouri Court of Appeals could in no way condone what this licensed practical nurse had done, it nevertheless threw out the criminal charges against her.

   The court indicated the nurse’s neglect of this resident would support a civil judgment for negligence or professional malpractice. Because it was not a civil case the court was just editorializing when it made this comment, or engaging in obiter dictum as it is phrased in legal parlance, and this had no direct effect on the nurse’s fate.

   The upshot was the pathologist’s testimony the resident died of heart complications acutely precipitated by lower gastrointestinal bleeding.

   The vomiting, in the pathologist’s opinion, although it certainly should have been addressed by the nurse rather than ignored, did not present a substantial probability of serious harm or death, even though the patient was in fact dying from an unrelated condition the nurse did not know and could not have known about while he was having bouts of vomiting.

   The nursing director was called at night by the CNA’s, was told throughout the day, and was called during the next night with reports the resident was vomiting. She did not notify a physician or tell the aides to do so, as she should have, according to the court.

   However, to be convicted of a crime for neglect of a nursing home resident, a caregiver in a position of responsibility for a resident’s welfare must knowingly fail to provide services which are reasonable and necessary to maintain the physical and mental health of the resident, and such failure must present either an imminent danger to the health, safety or welfare of the resident or a substantial probability that serious physical harm or death will result. State v. Peoples, 962 S.W. 2d 921 (Mo. App., 1998).