PEOPLE OF MI V ELIZABETH ANN EDENSTROMAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
August 5, 2008
Wayne Circuit Court
LC No. 06-100037
ELIZABETH ANN EDENSTROM,
Advance Sheets Version
Before: Zahra, P.J., and Cavanagh and Jansen, JJ.
The prosecution appeals by delayed leave granted an order dismissing its complaint
charging defendant with violating MCL 333.21771(2), which requires a nursing-home
administrator to report certain incidents to state authorities. We affirm.
On December 18, 2004, William Devine, an oxygen-dependent resident of Rivergate
Health Care Center, suffered burns while attempting to smoke a cigarette. Devine was in a
designated smoking area of the nursing home and was wearing a device called a “nasal cannula,”
which delivered oxygen to his nose through tubing that was connected to an oxygen tank. The
certified nursing assistant who was helping him turned off the oxygen supply and proceeded to
light Devine’s cigarette. Residual oxygen in the tubing ignited, causing Devine to suffer burns
on his hands and face, as well as smoke inhalation. The nursing assistant later indicated that she
did not know that nasal cannula tubing could contain oxygen after the oxygen tank was turned
Pursuant to MCL 333.21771, a nursing-home administrator is required to report to state
authorities any physical, mental, or emotional abuse, mistreatment, or harmful neglect of a
patient. Here, Rivergate’s administrator—defendant—conducted an investigation into the
incident and concluded that the incident was an “accident” and, thus, reporting was not required
under the statute. A member of Devine’s family, however, reported the incident to state
authorities and an investigation followed.
Defendant was subsequently charged with the misdemeanor offense of failing to report
the incident to state authorities as required by MCL 333.21771(2). Defendant moved to dismiss
the charge, arguing that (1) this “accident” was not within the contemplation of the statute’s
reporting requirements, and (2) the statute does not impose a criminal penalty. The prosecution
countered that (1) the circumstances showed, at least, recklessness that warranted reporting, and
(2) the statutory “catch-all” provision provided that violations of the Public Health Code for
which a penalty is not otherwise provided are punishable as misdemeanors. The district court
agreed with the prosecution and denied defendant’s motion to dismiss.
Defendant appealed to the circuit court. The same arguments were presented. The court
agreed with defendant, holding:
This Court has reviewed the issues presented de novo. And section
21771(1) states that, “A licensee, nursing home administrator or employee of a
nursing home shall not physically, mentally or emotionally abuse, mistreat or
harmfully neglect a patient.”
This Court is adopting appellant’s argument. This Court believes that the
reporting statute applies only to one’s awareness of willful abuse, mistreatment or
neglect, not to accidents.
This Court cannot expand the definition of the conduct, which constitutes
a crime, because criminal statutes must be strictly construed under Michigan laws.
Since this Court believes that the accident that occurred here was not
meant to be considered harmful neglect or abuse and neglect [sic] reporting
purposes, this Court feels that reporting was not required under the circumstances.
Therefore, this Court is reversing the order entered by the Twenty-seventh District
Court denying [defendant’s] motion to dismiss the complaint. This Court rules in
favor of the appellant.
A delayed application for leave to appeal followed, and was granted. See People v Edenstrom,
unpublished order of the Court of Appeals, entered August 16, 2007 (Docket No. 277291).
The prosecution argues on appeal that the circuit court misconstrued MCL 333.21771,
reading into it a “willful” element that is not required by the statute. We review de novo this
issue of statutory interpretation. Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1,
9; 654 NW2d 610 (2002).
MCL 333.21771 provides:
(1) A licensee, nursing home administrator, or employee of a nursing
home shall not physically, mentally, or emotionally abuse, mistreat, or harmfully
neglect a patient.
(2) A nursing home employee who becomes aware of an act prohibited by
this section immediately shall report the matter to the nursing home administrator
or nursing director. A nursing home administrator or nursing director who
becomes aware of an act prohibited by this section immediately shall report the
matter by telephone to the department of public health, which in turn shall notify
the department of social services.
The issue here is whether defendant, as a nursing-home administrator, was required to report the
incident involving Devine. MCL 333.21771(2) requires the nursing-home administrator to
report “an act prohibited by this section immediately . . . .” The acts prohibited by the section
are physical, mental, or emotional abuse, mistreatment, and harmful neglect of a nursing home
patient. MCL 333.21771(1). The prosecution contends that the nursing assistant’s conduct with
regard to Devine constituted harmful neglect within the contemplation of the statute; thus, the
nursing-home administrator—defendant—was required to immediately report the matter.
Whether a defendant’s alleged conduct falls within the scope of a statute presents a
question of law that is reviewed de novo. See People v Thomas, 438 Mich 448, 452; 475 NW2d
288 (1991); People v Rutledge, 250 Mich App 1, 4; 645 NW2d 333 (2002). In reviewing
questions of statutory construction, our purpose is to discern and give effect to the Legislature’s
intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005).
We first turn to the plain language of the statute; if the language is unambiguous, no judicial
construction is required or permitted and the statute must be enforced as written. Id., quoting
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). And, pursuant to MCL 8.3a,
[a]ll words and phrases shall be construed and understood according to the
common and approved usage of the language; but technical words and phrases,
and such as may have acquired a peculiar and appropriate meaning in the law,
shall be construed and understood according to such peculiar and appropriate
The phrase “harmfully neglect” is not defined by MCL 333.21771. The prosecution
urges us to adopt dictionary definitions of the words. If the legislative intent cannot be
determined from the statute itself, a court may consult dictionary definitions for guidance in
determining the plain and ordinary meaning of words, i.e., “the common and approved usage of
the language.” MCL 8.3a; see, also, Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645
NW2d 34 (2002). Were we to agree with the prosecution, we would turn to the dictionary
definition of “neglect” and find that its definitions include: “1. to pay no attention or too little
attention to; disregard or slight. 2. to be remiss in the care of . . . . 3. to omit, as through
indifference or carelessness . . . . 4. to fail to carry out or perform . . . .” Random House
Webster’s College Dictionary (2000).
But our inclination is to agree with defendant that the phrase “harmfully neglect,” as it is
used in MCL 333.21771(1), has acquired a peculiar and appropriate meaning in the law. That
meaning has been prescribed primarily by the Department of Community Health,1 the entity
generally responsible for the administration of nursing homes. MCL 333.21741(1) provides:
“The department of public health, after seeking advice and consultation from the department of
social services, appropriate consumer and professional organizations, and concerned agencies,
shall promulgate rules to implement and administer this part.”
Formerly known as the Department of Public Health.
The “part” referred to in MCL 333.21741(1) is part 217, which pertains to nursing homes. MCL
333.21771 is obviously a section within part 217. In an apparent effort to accomplish the
delegated task, the Bureau of Health Systems (bureau) compiled a complaint investigation
manual for long-term-care complaints and facility-reported incidents called the “Complaint and
Facility Reported Incident Manual.” Recognizing that pertinent terms—like abuse, mistreat, and
neglect—are used but not defined by the applicable statutes, § 3300 of the manual “sets forth
definitions that meet the intent of these multiple legal bases.”
Section 3320 of the manual states as follows:
Neglect means failure to provide goods and services necessary to avoid
physical harm, mental anguish, or mental illness. The source of this definition is
42 CFR 488.301. The Public Health Code does not define the term harmfully
neglect used in 21771(1). By definition, neglect is harmful, so the federal
definition is adopted for both state and federal purposes.
Please note that by definition a particular event is either abuse or neglect,
Basically, neglect involves the failure of a staff person to carry out his/her
duties in regard to a resident. In theory, any failure to provide required services
of any kind for any reason could be considered neglect. However, citations for
neglect are normally issued only in cases where there is significant actual harm
resulting from a failure to act in the presence of the knowledge of what should be
done and the capability to provide the required services. Such cases may include
a failure to follow a standard of practice. Even if neglect is not cited, citations are
issued against the facility for the specific care issues involved.
It is well settled that agencies are allowed “to interpret the statutes they are bound to administer
and enforce.” Clonlara, Inc v State Bd of Ed, 442 Mich 230, 240; 501 NW2d 88 (1993). And
this proffered definition and explanation is not only consistent with the dictionary definition; it is
also consistent with the definition of “neglect” under the Social Welfare Act, MCL 400.11 et
seq., which states, in part, that “[n]eglect includes the failure to provide adequate food, clothing,
shelter, or medical care.” MCL 400.11(d).
Defendant, as the nursing home’s administrator, was required to follow the rules
promulgated by the bureau as set forth in its manual. Thus, she was to immediately report any
instance of harmful neglect. Defendant’s investigation into the Devine incident revealed that the
nursing assistant lit Devine’s cigarette not knowing that oxygen could remain in the nasal
cannula tubing after the oxygen tank had been turned off. Defendant concluded that the incident
was an accident. According to defendant’s interpretation of the reporting provision of the
manual, this incident was not reportable because it was not the result of a willful failure to
provide treatment. Defendant understood that “harmful neglect” meant knowing or intentional
neglect as it relates to medical treatment, not accidents. Thus, defendant did not report this
incident under MCL 333.21771(2).
First, we consider defendant’s conclusion that the nursing assistant’s conduct did not
constitute harmful neglect. All the record evidence indicates that the nursing assistant turned off
the oxygen tank and then lit Devine’s cigarette. She did not remove Devine’s nasal cannula
before doing so because she did not know that oxygen could remain in the nasal cannula tubing
after the oxygen tank had been turned off. The evidence also reveals that the nursing assistant
followed the smoking policy that was in place at the time, which did not include the removal of
nasal cannula before lighting a resident’s cigarette. And there is no evidence that the facility
instructed the nursing assistant regarding patients who wished to smoke while receiving oxygen
therapy or wearing a nasal cannula. In other words, the nursing assistant did not fail to carry out
her duties in regard to Devine; she did what she knew to do. She did not fail “to act in the
presence of the knowledge of what should be done and the capability to provide the required
service.” The evidence clearly showed that the nursing assistant did not harmfully neglect
Devine as that phrase is used in the statutory provision.
This conclusion is buttressed by the provisions in the manual that explain what is meant
by “neglect.” Section 3320 of the manual states:
A resident has been neglected whenever all of the following conditions are
The facility fails to provide or arrange for medical, dental, nursing,
dietary, physical therapy, pharmacy, habilitation, psychological, speech,
audiological or other treatments or services to the resident in question; and
The facility’s failure to provide these treatments or services is
either intentional or the result of carelessness; and
The failure to provide these treatments or services, results in a
deterioration of the resident’s physical, mental or emotional condition.
Examples of Neglect:
The following actions or omissions constitute neglect whenever they result in a
noticeable deterioration of the resident’s physical, mental or emotional condition:
Failure to carry out a physician’s order . . . .
Failure to carry out nursing, treatment or individual resident care
Failure to notify a resident’s attending physician and other
responsible persons in the event of an incident involving that resident.
Failure to notify a resident’s attending physician and other
responsible persons in the event of a significant change in that resident’s
physical, mental or emotional condition.
Failure to provide an adequate number of nutritionally balanced,
properly prepared and medically appropriate meals.
Failure to adequately supervise the whereabouts and/or activities of
Failure to take precautionary measures that have been ordered . . . .
Refusal or failure to provide any service to the resident for the
purpose of punishing, disciplining or retaliation.
Allowing the physical environment to deteriorate . . . .
Leaving a resident lying in feces or urine soaked linens for an
extended period of time.
Leaving a resident restrained in other than an immediate
emergency, without a physician’s order, solely for an employee’s own
The examples of neglect cited in the manual persuade us that the neglect need not be
willful, as defendant argues and the circuit court appeared to conclude. To the contrary, the
neglect can be unintentional. The act or omission may be, for example, in disregard or in
violation of specific orders or care plans, a duty, or a resident’s rights. The situations cited in the
manual are not exhaustive; they are merely “examples.” The focus of the inquiry is on the act or
omission, as well as the surrounding circumstances—a point made more clear with an example.
A resident lays in urine-soaked bed linens for seven hours and a severe pressure ulcer
develops. The nursing assistant merely got busy and lost track of time. She knew that leaving a
resident in that condition was unacceptable and she did not intend to do it. It just happened. It
was an accident. The nursing assistant’s conduct constituted harmful neglect, reportable under
MCL 333.21771(2). In contrast, in this case the nursing assistant’s action did not constitute
harmful neglect—she performed the duties she was assigned to perform, in the manner that she
was trained to perform them. Contrary to the dissenting opinion, that the nursing home had a
poor or improper smoking policy in place at the time of this incident does not change our opinion
with respect to the nursing assistant’s own actions. We believe that “the negligence of the
Rivergate Care Center,” as it is referred to by the dissent, is a different issue than the one before
us, i.e., what constitutes “harmful neglect” by a nursing-home employee. Thus, we agree with
defendant’s conclusion on this issue, although we reject defendant’s reasoning.
Second, we turn to defendant’s decision not to report this incident. This action against
defendant resulted from her failure to report this incident to state authorities as mandated by
MCL 333.21771(2). Section 3410 of the manual sets forth the bureau’s interpretation of that
statute as follows:
Section 21771 requires immediate reporting when the facility becomes
aware of a prohibited act. The federal requirement requires reporting alleged
violations. In both cases the facility must first screen incidents, observations, and
other problematic or unusual events reported by employees to determine if they
potentially involve any alleged acts, which could meet the definition of abuse if
they were substantiated. The facility must investigate the alleged act or incident.
The facility must make a preliminary judgment regarding the likely credibility of
a reported incident, i.e., abuse, neglect, or misappropriation and immediately
report abuse, neglect, or misappropriation. Only reports that meet these tests need
to be reported.
Section 5241 of the manual sets forth the bureau’s rules related to the investigation of incidents
Each long term care facility must review any and all situations or incidents
in which a resident may have suffered physical or other harm for reasons which
are unknown, unclear or not adequately explained. If, during the course of that
review, the facility finds reason to believe that abuse, neglect, or misappropriation
was or is suspected to have been the cause of that harm, the incident must be
reported to the Bureau.
A nursing home administrator or nursing director is first expected to
immediately conduct a thorough in-house investigation to determine what
happened and do the following:
If it is determined by a conclusive investigation that the incident did not
occur or was not abuse, neglect, or misappropriation, a detailed incident
report and the investigation findings must be filed in the facility. It is not
necessary to notify the Bureau in those cases.
If it is determined that the abusive practices did occur or are still suspected
then the nursing home is required to notify the Bureau as described below.
Section 5243 of the manual states:
Incidents do not need to be reported to the Bureau if it is determined by a
conclusive facility investigation that the incident did not occur or was not abuse,
neglect, or misappropriation. A detailed incident report and the investigation
findings must be filed in the facility for potential review by Bureau surveyors at
surveys or other visits.
Again, Section 5272 of the manual provides:
The Bureau cites facilities that fail to report immediately (as defined
above) even if they voluntarily report later.
EXCEPTION: As noted above, facilities which conduct a thorough inhouse investigation and determine that the incident was not abuse, neglect, or
misappropriation are required to maintain a detailed report or accident report on
file in the facility and it is not necessary to notify the Bureau. If investigation
determines that the incident was in fact abuse, neglect, or misappropriation, the
facility is not cited by the Bureau for failure to report if it is determined that the
facility conducted a thorough investigation and made a good faith, informed
judgment that the incident was not abuse, neglect, or misappropriation.
Here, defendant contends that she did not report this incident to the bureau because her
conclusive investigation resulted in a good-faith determination that the incident was not abuse,
neglect, or misappropriation—it was an accident. As discussed earlier, we agree with defendant
that the incident did not constitute harmful neglect for which reporting was required under MCL
333.21771(2). We also agree with defendant that the manual clearly requires that the nursinghome administrator exercise judgment in determining whether an incident must be reported—not
all incidents that result in harm or injury to a resident are required to be reported immediately to
the bureau. The manual repeatedly makes that clear. Thus, we disagree with our dissenting
colleague’s position that the nursing-home administrator must immediately report, without the
benefit of any investigation, any and all incidents that occur in a nursing home.
However, we reject defendant’s suggestion, as well as the circuit court’s apparent
conclusion, that those incidents that can be characterized as “accidents” need not be reported.
The term “accident” is too subjective and nebulous. So-called “accidents” that may be the result
of harmful neglect as set forth in the manual are to be reported immediately. We also reject
defendant’s claim that only if she “became aware of outright physical, mental or emotional
abuse, mistreatment or harmful neglect is the statute’s reporting requirement triggered.” The
term “outright” implies an element of absolute knowledge of prohibited behavior that is not
consistent with the manual’s reporting requirement. To the contrary, § 5241 of the manual states
that if there is “reason to believe that abuse, neglect, or misappropriation was or is suspected to
have been the cause of that harm, the incident must be reported to the Bureau.” Accordingly, the
bureau has interpreted the reporting requirement of MCL 333.21771(2) broadly, which is
consistent with sound public policy—overreporting is more desirable than underreporting.
In summary, in light of the facts and circumstances, defendant’s conduct—her failure to
report the incident—did not fall within the scope of MCL 333.21771(2). See Thomas, supra. It
is clear that the nursing assistant’s act or omission with regard to the lighting of Devine’s
cigarette did not constitute harmful neglect within the contemplation of the statute. Thus, we
affirm the circuit court’s dismissal of this action. To the extent the circuit court interpreted MCL
333.21771 to contain a “willful” element, that interpretation is rejected, as is the circuit court’s
holding that this reporting statute does not apply to “accidents.” In light of our resolution of this
issue, we need not consider whether a violation of MCL 333.21771(2) is punishable under MCL
Jansen, J., concurred.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen