The D.C. Court of Appeals decided earlier this year in the appeal of a certified nursing assistant who was convicted of criminal neglect of a vulnerable adult.
The case, TARPEH v. US, 62 A. 3d 1266 – D.C. Ct. App (2013), centers on a discussion of what it means to be criminally reckless, as to meet the standard required to convict someone of criminal neglect of a vulnerable adult.
In Tarpeh, the appellant was a Certified Nursing Assistant (CNA), and was assigned the atypical task of transporting a patient, whose residence unit she did not typically work within, to a dental appointment in the D.C. area, an area in which she had never been. The result was essentially a disaster.
The patient whom the CNA was transporting was a stroke patient, and unbeknownst to the CNA, was lightly dressed, with no pants, covered only by a light shirt, undergarments, and a thin sheet. The woman was also very overweight, paralyzed on the right side of her body, and could not speak. Additionally, the wheelchair in which she was sitting when the CNA came to transport her did not have foot rests.
The CNA successfully got the woman into a taxi, and the pair was dropped off at a hospital. Once they arrived, the CNA was informed that she was at the incorrect location, and that the correct hospital was “across the street.” The CNA thought she could still make the dental appointment, so decided to push the woman across the street. At some point, the patient began to moan, and the CNA realized that she was not dressed under the street. After readjusting the sheet so that it covered the woman, she saw that the woman’s feet were dragging. At that point, she was within site of a hospital, albeit not the correct one. As the patient was beginning to slide out of the chair, and the CNA could not readjust her, she proceeded through the intersection to the hospital lobby. There it was discovered that the patient’s foot had been dragging, and was apparently significantly injured, by several accounts badly bleeding.
The appeal, then, focused on whether the CNA’s actions rose to the standard of recklessness, or reckless indifference, as required by the relevant charging statute. After an extensive discussion of several different definitions of the term, the court held that in order to demonstrate “reckless indifference” to the needs of a vulnerable person, the evidence must show not only that the actor did not care about the consequences of his or her action, but also that the actor was consciously aware of the risks involved in light of known alternative courses of action.
Furthermore, in this case in particular, the court held that the government had to introduce evidence far beyond the mere fact that the caregiver might not have acted with the degree of care that someone of ordinary prudence would have exercised in the same circumstance (which is the standard in straightforward negligence cases).
For example, the court discussed a similar case in which a patient suffered injuries that were a result of his combativeness, but in that case the employee who was taking care of him failed to act in order to secure treatment for the man’s injuries, or show any remorse for the injuries that he caused during his attempt to care for him. Here, however, despite potential arguments of what the CNA could have done differently, the court believed that she simply just did not know what she could have done differently, and that state of mind did not amount to an act of reckless indifference.
However, there was a dissenting opinion in the case. There, Judge Fisher, set forth in further detail the nature of the woman’s toe, her screams, and the fact that her toe was so badly injured that it eventually had to be amputated. He found that the CNA’s actions were reckless, in that she understood that the patient’s foot was being dragged, and yet continued to push her despite her screams of pain.
Being that this decision is for a criminal case, it is distinguishable from a nursing home negligence case. In fact, the majority decision states that because it is a criminal case, the government must go beyond the standard of negligence. In doing so, it somewhat supports the notion that the CNA was acting negligently, but that negligence alone does not meet the higher standard set forth in criminal cases. The reason for that being that determinations in criminal cases take away individuals’ liberty, such that our justice system wants to ensure that convictions are made only when they are beyond a reasonable doubt.
Therefore, this appeal may not have had any impact on the potential civil claims that the woman’s family might have alleged against the CNA. In civil lawsuits, the standard is negligence, which the court said was not enough for a criminal conviction.
If you suspect that an elderly friend or relative living in a nursing home or assisted living facility within the Maryland or the Washington D.C. areas might be suffering from neglect or abuse, contact the experienced nursing home abuse and neglect attorneys at Lebowitz & Mzhen, LLC immediately. We will thoroughly investigate and pursue any potential claims on behalf of your loved one. Contact us today in order to schedule your complimentary and confidential initial consultation. You can reach us by calling (800) 654-1949 or contact us through our website.
More Blog Posts:
D.C. Court of Appeals Affirms “Interests of Justice” Standard in Waiving Notice Requirement in Medical Malpractice Claims, Maryland Nursing Home Lawyer Blog, published November 18, 2013
Abuse of 86 Year Old Alzheimer’s Patient Suspected in Alleged “Fall” Case, Maryland Nursing Home Lawyer Blog, published November 12, 2013