The case is interesting on a number of levels. However, the Court‘s opinion was grounded in evidentiary and procedural issues that don‘t necessarily get to the more interesting implications of the opinion.
In particular, when one views the statutes, at issue, regarding medical negligence (set out below), it is interesting to note that the elements are not much different than are typically alleged in civil medical malpractice claims.
This discussion will focus on the holding of the Court leaving these other issues to be discussed in our medical malpractice section of our personal injury blog.
This case involved criminal charges for abuse and neglect of a nursing home resident that ultimately died of blood loss resulting from excessive administration of the anticoagulant drug Coumadin.
The State‘s expert provided an expert report detailing all the errors and omissions made by the defendant. The expert began by noting that the defendant doctor initially administered the Protime blood test to monitor the anticoagulant effects of the Coumadin. This test measures the patient‘s clotting time; which is referred to as the INR. It is essential to monitor the INR until the levels are both safe and stable.
Inexplicably, the test was not administered again for over one week despite the fact that new higher doses of Coumadin had been started. This test was necessary to insure the proper levels of Coumadin and to avoid the risk of excessive bleeding.
It was noted in the Court‘s opinion that, “Dr. Muraida did not set blood pressure notification parameters, and actually ignored her low blood pressure when he examined her.” Low blood pressure can be a sign of internal bleeding.
Upon discovery of blood in the patient‘s stool 6 days following the increase in Coumadin, the defendant doctor ordered a non-emergent colonoscopy for possible hemorrhoids. Notably, there was nothing in her charts indicating the condition.
This was done without any consideration of the possibility of the patient‘s low blood pressure, the increase in Coumadin and the possible bleeding suggested by these conditions. The defendant failed to retest the patient‘s INR for clotting time, making the colonoscopy very dangerous while also failing to detect the very high risk of bleeding from the excessive levels of Coumadin.
The State‘s expert further testified that the patient should have been removed from Coumadin for at least 2 days prior to the colonoscopy. Prior to the colonoscopy the patient began to experience bleeding from the nose, swelling in the knees and bright red blood in her stool. These issues were not addressed.
On September 1, 6 days following the initial reports of rectal bleeding, the patient was sent to the ER for acute rectal bleeding. Testing showed that she was “massively over anticoagulated.” The patient died of blood loss from a tumor in her colon. The State‘s expert testified that the death would not have occurred had the rectal bleeding been addressed immediately and the Coumadin not been overprescribed.
In short, the defendant doctor‘s treatment was grossly negligent, at least in the estimation of the prosecutor. The doctor was charged under the New Mexico Resident Abuse and Neglect Act (the Act).
The Act at §30-47-4 “provides criminal penalties for medical care administered in a residential setting that falls beneath legislated standards of acceptability.” The Act defines abuse at §30-47-3(A)(4), as “any act or failure to act performed intentionally, knowingly[,] or recklessly that causes or is likely to cause harm to a resident, including: . . . medically inappropriate conduct[.]”
The Act states further at §30-47-3(F):
…”neglect” means, subject to the resident‘s right to refuse treatment and subject to the caregiver‘s right to exercise sound medical discretion, the grossly negligent:
(1)failure to provide any treatment, service, care, medication or item that is necessary to maintain the health or safety of a resident;
(2)failure to take any reasonable precaution that is necessary to prevent damage to the health or safety of a resident; or
(3)failure to carry out a duty to supervise properly or control the provision of any treatment, care, good, service or medication necessary to maintain the health or safety of a resident[.]
In order to support criminal charges, the criminal complaint must allege facts indicating abuse or gross negligence. The defendant argued, and the district court agreed, that the complaint had failed to allege the necessary facts. The case was dismissed on the defendant‘s Foulenfont Motion by the trial court. And this is where the Court of Appeals came into the picture.
There was much discussion in the opinion about the difference between civil negligence and criminal negligence. In a nutshell, after citing extensively from prior case-law, the court determined that for criminal negligence, “there must be an actual or imputed foreseeability of danger directed toward the [victim] who might be injured as a result of the defendant‘s acts and the risk of harm must be ‘substantial and unjustifiable.‘”
Under State v. Foulenfont, dismissal of the case by the trial judge is allowable if the charges can be dismissed solely on a question of law. The charges may not be dismissed upon contested issues of fact; which is reserved solely for the jury.
In this case, the Court found that the complaint did in fact allege sufficient facts for criminal liability, if proven, and that those facts were to be judged by the jury–not by the district court judge.
There was much further discussion on intent, knowledge, identity of who did what, individual responsibility and so on. The Court again found that these determinations were best left for the jury to decide after hearing all the evidence. The Court stressed that it is unnecessary for the State to prove its entire case prior to trial; which would obviously infringe on the realm of the jury.
However, the Court did leave open the possibility that the defendant could attack probable cause at the preliminary examination. At that time, the court will be able to view a more complete factual record to determine if the facts as indicated by the parties as a matter of law are sufficient to move forward to trial.
In short, this saga is far from over. The ultimate outcome has potentially wide-ranging implications.