Tuesday, August 26, 2008

Appeals court upholds verdict against nursing home company, case prosecuted by attorney general's office

The Missouri Southern District Court of Appeals Monday upheld a felony criminal neglect verdict against the Turtle Creek Group Home in Bolivar. Charges were filed against the home, which is a subsidiary of Community Alternatives Missouri, following the death of a resident who had been grossly neglected by staff. The lead staff person at the Bolivar facility, was sentenced to five years in prison in 2006. The cases were prosecuted by Missouri Attorney General Jay Nixon.

From the case opinion (Be warned- this is a story of horrendous abuse.):

Defendant is a corporation. Defendant's management chain includes a chief executive officer, regional vice presidents, and regional directors. Defendant operates more than 30 group homes, including Turtle Creek Group Home at Bolivar, Missouri (Turtle Creek). Its management chain for the operation of the group homes is divided into three divisions – North, Central, and South. Each division is headed by an executive director, an associate director, and a program coordinator. Turtle Creek is part of defendant's South division. Amy Follis was executive director of that division, Diane Bickham was associate director, and Lisa Martin was program coordinator.(FN3)
Mary Collura was lead staff person for two of the group homes in the South division, Turtle Creek and Forest Ridge. Lead staff person is a management position. Collura was entrusted with the care, safety, health, and well-being of the residents of Turtle Creek. Collura's responsibilities included managing residents' medical care and supervising the staffs at Turtle Creek and Forest Ridge. Collura attended management meetings with Diane Bickham. She also performed training for the direct support staff for multiple homes within the South division. She gave job evaluations, disciplined support staff, and had authority to write checks on residents' accounts to buy personal items for them. She was provided a company credit card for use in purchasing supplies.

Mary Collura had authority to take residents to the doctor when necessary. She was responsible for getting residents to their appointments on time and for maintaining residents' prescriptions and refills. Her duties included ensuring that residents' medical care was properly documented and relaying medical information regarding residents to case managers with the Department of Mental Health.

B. Care of Gary Oheim

Gary Oheim was a resident of Turtle Creek from February 2001 until his death on January 30, 2002. He was mentally retarded and suffered from cerebral palsy. He was confined to a wheel chair. He could not move himself. He had to be repositioned often to prevent bedsores from developing.
Oheim was taken to the Associates of Medicine Clinic (the clinic), where Joe Follis was a nurse practitioner, for treatment on October 22, 2001.(FN4) Patty Price, an aide at Turtle Creek, attended the visit with Oheim. A nurse at the clinic documented a Stage I decubitus ulcer – the technical term for a pressure sore or bedsore - on Oheim's right knee and right hip. Turtle Creek staff was instructed to change Oheim's position frequently and to return him for re-evaluation October 26.

Johanna Brothers is a nurse who was employed by defendant to review medical documentation. Collura asked her to look at Oheim's right hip to determine if it was "out of place." Ms. Brothers observed a dime-sized bedsore on Oheim's hip. She brought it to the attention of Collura and instructed her to inform Oheim's doctors about the bedsore at Oheim's next appointment.

Oheim was taken to the clinic on October 30 and seen by Joe Follis; however, Follis did not perform a full body examination and did not see the sores on Oheim's body. Follis next saw Oheim on November 6. Follis diagnosed Oheim with a swelling of the right lower extremity and an ulcer of the right hip and coccyx, basically the tail bone. Treatment was prescribed and instructions given for Oheim to be brought back to the clinic in two weeks for re-evaluation.

On November 8, Oheim's legal guardian attended a quarterly meeting at Turtle Creek regarding Oheim's care. The sores Oheim was experiencing were not mentioned at the meeting.

Joe Follis examined Oheim again on November 28. His examination notes state that the ulcers were improved and directed that the same treatment be continued. He instructed that Oheim be brought back for a check-up in one month or sooner if problems developed. However, Oheim was not seen again by Follis or by any other outside medical personnel between November 28, 2001, and January 5, 2002.

Oheim was brought to the clinic on January 5, 2002. He was again seen by Joe Follis. Ms. Collura was also present. Follis asked to see Oheim's hip and asked Collura to lean Oheim forward in his wheelchair, but Collura told Follis that was not necessary. Collura leaned Oheim to the side while he remained seated in the wheelchair. Joe Follis examined Oheim in the wheelchair while Oheim remained fully clothed. Follis testified that he should have known Oheim had bedsores and should have examined for them; that had he done so he would have known Oheim's sores were worsening.

Patty Price was present for Mr. Oheim's January 5 appointment. Price verified that Collura did not show Oheim's buttocks to Follis while Price was in the room with them. Price asked Follis if Oheim needed medicine and was told that he did not.

On January 9, Oheim was taken to the clinic again and seen by Joe Follis. Follis performed a full body examination of Oheim. Oheim was diagnosed with a Stage IV ulcer on his left buttock, a Stage II to III ulcer on his right hip, a Stage I ulcer on his left hip and right ankle, and a staph infection on his left buttock.(FN5) The tissue around the ulcer on the left buttock was described as necrotic – it had turned black and blue colored and emitted a bad odor.

Follis consulted Dr. Zolkowski, the clinic's consulting physician, regarding treatment. A culture was taken to see what type of bacteria was present in the wound and a prophylactic antibiotic prescribed pending that determination. An appointment was made with a plastic surgeon, Dr. Reynolds, for January 11. The treatment that was prescribed in the meantime was to frequently turn Mr. Oheim and keep the wound clean and dry. Oheim was returned to Turtle Creek pending his appointment with Dr. Reynolds.

Mr. Oheim was admitted to the hospital on January 10. Dr. Reynolds performed a procedure to treat his sores. Dr. Reynolds also consulted a general surgeon, Dr. Milholen, and requested that she perform a colostomy on Oheim. Dr. Milholen explained that Dr. Reynolds was concerned about the ability of the sores to heal; that one of the sores was constantly contaminated by feces due to the sore's location. Dr. Reynolds thought a colostomy would help the problem.(FN6)

Dr. Milholen, as a general surgeon, had experience treating ulcers. She testified that the colostomy was a necessary surgery to heal the ulcers. She examined Mr. Oheim on January 14 and performed the surgery January 15. She stated it was initially successful. However, she was called at 11:00 p.m. that night and told that Mr. Oheim was having serious complications. He had been removed from anti-seizure medication he was taking before the surgery because the oral medication would conflict with requirements for surgery. When Dr. Milholen returned to the hospital, she found that Oheim had experienced a seizure and had herniated several loops of his small intestine into the colostomy bag. Dr. Milholen performed a second surgery in the late evening January 15 and early morning January 16 to repair the herniated intestine.

Mr. Oheim died January 30. An autopsy was performed. The physician who performed the autopsy, Dr. Shelley, testified that colostomy was a necessary and standard procedure to heal Oheim's ulcers due to their location. He concluded that Oheim died of complications of medical problems including the large ulcers, an infected gallbladder, and a necrotic bowel. Dr. Shelley believed the gallstones were a preexisting problem. It was his opinion that the necrotic bowel was likely caused by infection associated with the ulcers. Dr. Shelley's opinion was that the bedsores were the precipitating event leading to Mr. Oheim's death; that had Mr. Oheim not had the deep sores, he would have lived longer.

Another physician, Dr. Whitt, testified and stated the opinion that Mr. Oheim died of complications from the treatment of his ulcers.

C. Other Witnesses

Patty Price testified that she thought Gary Oheim's sores had healed by late November because the skin had healed over them. She later learned that the sores were not healed; that they "tunneled" under the surface of the skin. She learned this after Oheim was taken to the hospital and defendant's staff received training about how this type of ulcer could "tunnel." Ms. Price recalled seeing red areas on Mr. Oheim's bottom as early as September. In early December she became aware that the sores were producing an odor. In an attempt to alleviate the odor, disinfectant was sprayed in Mr. Oheim's room. The window in the room was opened. Oheim's roommate was moved to another room. Ms. Price complained of the smell to Ms. Collura. Collura told Price that she (Collura) was taking Oheim to the doctor throughout December. Collura also said she was taking Oheim to physical therapy, which was not the case.
Heather Wilson began working at Turtle Creek October 26, 2001, as a support staff employee. She worked the night shift from 11:00 p.m. to 7:00 a.m. She observed Oheim's bed sores when she began working at Turtle Creek. She told the trial court and jury that the sores became worse during the month of November; that by December they were "pussing." At one point when she wiped the wound with a washcloth, pus "poured out." Oheim's sores worsened during the month of December. They became so large that one "took up his whole butt cheeks." When Oheim was seated on a bench by Turtle Creek staff to permit him to shower, he would scream and his sores would bleed onto the bench. Wilson eventually refused to tend to them because they smelled so bad.

Justina Taylor began working at Turtle Creek in November. She observed Oheim's sores. She observed that the sores enlarged throughout the month of December. She observed that they were "pussing" and testified that she was not trained to treat this type of wound. She stated that she did not receive training on how to reposition him.

Karen Burks testified that the sores worsened significantly in early December; that Oheim's left buttock cheek "caved in." Lynette Cox-Bourisaw saw the wounds worsen in December. The skin around the opening of the sores turned black and hard and the wound became deeper and larger. Another employee, Sheryl Henderson, said the sores broke open in November and continued to get larger in early December.

Several of defendant's employees told of confronting Collura concerning Mr. Oheim's care. Ms. Cox-Bourisaw was dispensing medicine to Oheim in December and observed he was not receiving antibiotics or pain medication. She suggested that Ms. Collura get a second medical opinion. Ms. Cox-Bourisaw was told by Collura that Oheim had been going to the doctor for a long time; to do what she was told.

Ms. Burks wrote up incident reports that Collura was supposed to turn in to defendant's main office. When she would question if this had been done, Collura would tell her it was being taken care of. Ms. Burks told the trial court and jury that she was told by the main office not to talk to the doctors. She was told this was not within her job duties.

In December Mary Collura told Patty Price that an appointment was made for Mr. Oheim with Dr. Reynolds, a skin doctor. When Collura was questioned about Oheim's condition, she was told he was being taken to the doctor. Price saw Collura tear up an incident report written by another aide. Collura said the incident report was written improperly because it said that peroxide had been applied to Oheim's sore when that had not been ordered by the doctor. Other personnel saw Collura tear up incident reports regarding Oheim's sores.

Heather Wilson told Ms. Collura that she thought Oheim should be taken to an emergency room for treatment of his sores. Collura responded by telling Wilson to "mind [her] own f-ing business." Finally, Ms. Wilson filed an incident report noting her observations of Oheim's wound. She did so to protect herself from reprimand because she had not received training on how to treat bedsores and did not know what else to do. In late December or early January, Collura gave the Turtle Creek staff a "strict warning" to not say anything to the office about what went on in the house.

Michelle Nimmo Briggs began working at Turtle Creek sometime in January. On her second night at work she was shown Oheim's sores by another aide who was training her. She testified she had "never seen anything like [it] before;" that the wound was deep enough that she could see Oheim's tailbone. Briggs said the aide who was training her attempted to put peroxide on the wound, but Briggs told her that was not right. The next day Ms. Briggs tried to call the management office to talk to Amy Follis, but was told Ms. Follis was not in the office.

Ms. Briggs went to the office to talk to Amy Follis. Ms. Follis was still unavailable. Ms. Briggs spoke with Lisa Martin. Briggs told Martin that she needed to go to Turtle Creek immediately and do something about Oheim. Martin told Briggs she would talk to the home's manager, Mary Collura. The two argued but Martin asserted she would talk to Collura. Briggs said she would call the state police herself and left.

Amy Follis left a message on Briggs' answering machine; then at some point, the two talked. Ms. Follis testified that she told Diane Bickham to have someone go to Turtle Creek to take Oheim to a doctor. She also called the Missouri Department of Mental Health and reported the situation.

D. Response by Missouri Department of Mental Health

Ann Woody was employed by the Missouri Department of Health. She conducted abuse and neglect investigations. Ms. Woody received a call from Amy Follis on January 9. Ms. Follis reported that Oheim had bedsores that should be looked at, but did not tell Woody how serious the wounds were or that the situation was urgent. Woody visited Turtle Creek January 10 to investigate.
The first thing Ann Woody noticed when she entered Oheim's room was an overpowering smell that she later learned was gangrene. She was shocked – she had never seen anything as bad as his case. There was an oval shaped ulcer on Oheim's buttocks which was eaten away almost to the bone and looked large enough to put her fist in. Her opinion was that Oheim had been neglected; that if the medical advice Collura had received was not producing results, Collura should have taken Oheim to another doctor or to an emergency room rather than continuing the treatment throughout December.

Woody learned that aides at Turtle Creek had reported Oheim's condition to Collura; that Collura would tell them Oheim was being taken to the doctor. The aides informed Woody that Collura had torn up written incident reports. Woody wanted to talk to Collura but was told Collura was on vacation. Mary Collura never returned to work.

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