STATE v. THOMASON

STATE v. THOMASON
2001 OK CR 27
33 P.3d 930
72 OBJ 2954
Case Number: SR-2000-85910/3
Decided: 10/03/2001
STATE OF OKLAHOMA, Appellant -vs- PATSY "PAT" THOMASON, Appellee

OPINION

STRUBHAR, J.:

¶1 Patsy "Pat" Thomason, Appellee, was charged in a three count Multi-county Grand Jury indictment. The indictment was dismissed and refiled as an Information in the District Court of Comanche County, Case No. CF-99-177, charging Thomason with Count I - Caretaker Neglect (

¶2 Appellee Thomason was the Regional Director of the Tutera Group, the managing entity of Western Hills Health Care Center (WHHCC), a nursing home in Lawton. The charge of caretaker neglect arose from the care or lack thereof that George Roberts, a 91-year-old resident of WHHCC with dementia of the Alzheimer's type, received from April 9, 1998 through May 9, 1998. Roberts was discovered in his room with a broken leg on April 9. He was transported to the hospital where a full cast was placed on his leg and he was returned to WHHCC later that day. Due to Roberts' incontinence and lack of a catheter, urine got into his cast. Over the next month several employees reported to the charge nurses that the cast was dirty and had a foul odor, but no action was taken. On May 8, 1999, Roberts was having trouble breathing and an ambulance was dispatched. The EMT noticed the strong odor emanating from Roberts' cast. At the hospital, the cast was removed exposing what had become an open fracture with the bone protruding through the skin and pus draining from the open wound. In addition to the open fracture, Roberts was diagnosed with various infections. He died approximately one month later. Whether Thomason participated in the care of Roberts in any manner was contested. [33 P.3d 932]

¶3 On September 3, 1998, Investigator Michael Dewey from the Medicaid Fraud Control Unit of the Attorney General's Office was at WHHCC to arrange an interview with an employee as part of his investigation into the neglect of Roberts. Dewey went to the office of Delores Thompson, the Director of Nursing, to arrange the interview. While there he saw a picture of the buttocks of a resident with what appeared to him to be a serious decubitus ulcer (bedsore). He asked Thompson if there was a problem with the resident and she told Dewey she could not discuss it. The following day, Dewey was refused access to the photograph, the resident's medical records and the depicted resident.

¶4 Angie Oliver-McGee, an employee at WHHCC, testified that Thomason gave her a file with the photograph in it and told her "to do something with it" and not to tell LaDonna Jones where it was. McGee understood Thomason to mean that she should hide it so when the investigators from the Attorney General's Office asked LaDonna for it, LaDonna could say she did not know where it was. The identity of the resident and the photograph were turned over later by WHHCC's legal counsel. Additional pertinent facts will be discussed as they become relevant to the propositions raised for review.

¶5 The State of Oklahoma asserts the trial court erred in ruling that § 843.1 was unconstitutional as applied to Thomason.

¶6 Below, Thomason argued that the caretaker neglect statute was void because it referenced a definition for caretaker at

¶7 It is a well established rule of law that a legislative act is presumed to be constitutional and that the party attacking the constitutionality of the statute has the burden of proof. Romano v. State,

¶8 At the time of the alleged incident, § 843.1 provided:

A. No caretaker as defined in Section 803 of Title 43A of the Oklahoma Statutes shall willfully abuse, neglect, or financially exploit any person entrusted in his care, or [33 P.3d 933] shall cause, secure, or permit any of said acts to be done.

B. Any person convicted of violating the provisions of this section shall be guilty of a felony punishable by a fine of not more than Ten Thousand Dollars ($10,000.00), or by imprisonment in the State Penitentiary for not more than ten (10) years, or by both said fine and imprisonment.

¶9 Contrary to Thomason's claim, § 803 was not repealed; rather, §§ 801 through 810 of Title 43A were renumbered as §§ 10-101 through 10-110 of that same title which was reflected at

6. "Caretaker" means a person who has the responsibility for the care of the person or financial management of the resources of the vulnerable adult as a result of a family relationship or who has assumed the responsibility for the care of the vulnerable adult voluntarily, by contract, or as a result of the ties of friendship.

¶10 The statute, although drafted in a general nature, clearly proscribes the infliction of abuse or neglect on vulnerable adults by their caretakers. Because it was clear the definitions section had only been renumbered and there was never any gap where the term caretaker for purposes of § 843.1 was not defined, we find the statute provided Thomason adequate notice.

¶11 Further, section 843.1 is not unconstitutional because caretaker is defined differently in the rules and regulations governing nursing homes. Just because Thomason was more familiar with the rules and regulations governing nursing homes by virtue of her occupation than with the penal statutes of the state is irrelevant to this analysis as ignorance of a valid law is not a defense. See Bell v. State,

¶12 Lastly, section 843.1 is not unconstitutional because it lends itself to selective prosecution. As we stated in Childress v. State,

The decision regarding which criminal charge to bring lies within the wide parameters of prosecutorial discretion. Prosecutorial discretion has boundaries. Prosecutions cannot be based upon "unjustifiable standards such as race, religion or other arbitrary classification." It is the defendant's burden to show the State's prosecution of him is based upon discriminatory grounds.

(citations omitted)

¶13 Here, Thomason has not shown that she is being prosecuted based on an unjustifiable classification. This record does not reveal who was ultimately charged. The State states in its Reply Brief that 8 people were charged in connection with the neglect of Roberts. Appellant's Reply Brief at 4. However, the magistrate noted that others with more direct contact with Roberts had not been charged. Because Thomason has not shown she is being charged based on an impermissible classification and the magistrate found sufficient evidence to bind her over, we find § 843.1 is constitutional and remand this case for trial. State v. Johnson,

¶14 In its last three claims, the State asserts the trial court erred in dismissing Thomason's misdemeanor obstruction charge. The State maintains that because WHHCC is a medicaid facility, Thomason was required to give investigators access to all patient records including the records of non-medicaid patients, which in this case was the photograph of a non-medicaid patient's decubitus ulcer, and her refusal to do so constitutes obstruction. Thomason's motion to quash, set aside and dismiss the obstruction charge (Count II) is best characterized as a demurrer to the Information. See

¶15 In this case, the trial court held that since the resident in the photograph was a non-medicaid/private pay resident, there were no medicaid records to produce, ruling the A.G. is not entitled to a non-medicaid resident's confidential records. In addition, the trial court ruled the identity of the patient could not be disclosed without a court order due to patient confidentiality.

¶16 The question of whether an A.G. investigator is entitled to non-medicaid records in neglect/abuse investigations is not clear from the statutes

¶17 Like most states, Oklahoma has created a Medicaid Fraud Control Unit to investigate fraud and fiscal abuse.

A. No potential Medicaid recipient shall be eligible for medical assistance unless such recipient has, in writing, authorized the Oklahoma Health Care Authority and the Attorney General to examine all records maintained as required by the Oklahoma Medicaid Program by the recipient, or of those receiving or having received Medicaid benefits through the recipient, whether the receipt of such benefits would be allowed by the Oklahoma Medicaid Program or not.

. . .

C. The Attorney General shall be allowed access to all records of persons and Medicaid recipients under the Oklahoma Medicaid Program which are held by a provider, for the purpose of investigating whether any person may have committed the crime of Medicaid fraud, or for use or potential use in any legal, administrative, or judicial proceeding. In carrying out the purposes of the Oklahoma Medicaid Program Integrity Act, the Attorney [33 P.3d 935] General may take possession of records held by a provider by subpoena, in which case copies of those records obtained by the Attorney General which are necessary for the provider to continue doing business shall be supplied to the provider, or the Attorney General may elect to require that the provider supply the Medicaid fraud control unit within the office of the Attorney General with copies of the records.

D. Records obtained or created by the Authority or the Attorney General pursuant to the Oklahoma Medicaid Program Integrity Act shall be classified as confidential information and shall not be subject to the Oklahoma Open Records Act or to outside review or release by any individual except, if authorized by the Attorney General, in relation to legal, administrative, or judicial proceeding.

E. No person holding such records may refuse to provide the Authority or the Attorney General with access to such records on the basis that release would violate any recipient's right of privacy, any recipient's privilege against disclosure or use, or any professional or other privilege or right. The disclosure of patient information as required by the Oklahoma Medicaid Program Integrity Act shall not subject any physician or other health services provider to liability for breach of any confidential relationship between a patient and a provider.

¶18 The Act makes clear that A.G. investigators are entitled to all records of medicaid recipients. The State maintains that subsection C grants them access to records of all patients based on the language granting them "access to all records of persons and medicaid recipients." However, the term "person," for purposes of the Act,

means any Medicaid provider of goods or services or any employee of such provider, whether that provider is an individual, individual medical vendor, firm, corporation, professional association, partnership, organization, or other legal entity under the Oklahoma Medicaid Program, or any individual, individual medical vendor, firm, corporation, professional association, partnership, organization, other legal entity, or any employee of such who is not a provider under the Oklahoma Medicaid Program but who provides goods or services to a provider under the Oklahoma Medicaid Program for which the provider submits claims to the Oklahoma Medicaid Program or its fiscal agents.

¶19 Given the definition of person, § 1004 (C) does not furnish the A.G. with authority to seize non-medicaid recipients' confidential records. Be that as it may, the Medicaid Fraud Control Unit is charged with the responsibility of investigating cases of abuse and neglect of residents in facilities that participate in the medicaid program. See 42 U.S.C.A. § 1396b(q)(4); 42 C.F.R. § 1007.11(b)(1);

¶20 In People v. Doe, 455 N.Y.S.2d 945 (1982), the New York court considered whether a hospital could assert medical privileges to bar compliance with grand jury subpoenas issued in conjunction with an investigation by the medicaid fraud control unit into possible patient mistreatment including the deaths of two elderly patients. One of the challenged subpoenas sought records of all progress notes for all patients in the Intensive Care Unit for a specific time period.

¶21 Though the Oklahoma Medicaid Program Integrity Act does not specifically address the Medicaid Fraud Control Unit's access to non-medicaid records, it does give the A.G. the power to investigate patient abuse and grants the A.G. the power to issue subpoenas and search warrants in connection with such investigations.

AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY
THE HONORABLE LEO A. WATSON, JR., DISTRICT JUDGE

Appellee, Patsy "Pat" Thomason, was charged in the District Court of Comanche County, Case No. CF-99-177, with Count I - Caretaker Neglect, Count II - Obstructing an Officer and Count III - Attempted Subornation of Perjury. Thomason filed a motion to dismiss Count I and a motion to quash, set aside and dismiss Count II. The trial court granted Thomason's motions and the State appeals. REVERSED and REMANDED.

APPEARANCES AT TRIAL

STEVEN CRAVENS
TULLY McCOY
ASSISTANT ATTORNEYS GENERAL
MEDICAID FRAUD CONTROL UNIT
4545 N. LINCOLN BLVD.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

STEVEN L. PARKER
ATTORNEY AT LAW
P.O. BOX 540
224 N. BROADWAY
TECUMSEH, OK 74801
ATTORNEY FOR APPELLEE

APPEARANCES ON APPEAL

SUSAN C. STALLINGS
ASSISTANT ATTORNEY GENERAL
W.A. DREW EDMONDSON
ATTORNEY GENERAL
OF OKLAHOMA
4545 N. LINCOLN BLVD.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

STEVEN L. PARKER
ATTORNEY AT LAW
P.O. BOX 540
224 N. BROADWAY
TECUMSEH, OK 74801
ATTORNEY FOR APPELLEE

OPINION BY: STRUBHAR, J.

RB

FOOTNOTES

6. Every resident shall receive respect and privacy in the medical care program of the resident. Case discussion, consultation, examination and treatment shall remain confidential and shall be conducted discreetly. Personal and medical records shall be confidential, and shall include such documentation or information so as to alert a health care provider or an emergency medical care facility of the existence of a directive to physicians or a living will.

CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART:

¶1 I concur in the decision and analysis concerning the Obstructing an Officer charge (Count II). However, I dissent to the decision to reverse the trial judge's Order dismissing the Caretaker Neglect charge (Count I). The Opinion's analysis as to the dismissal of Count I proceeds upon the assumption that the trial court found

¶2 It seems fairly clear from the Judge's ruling that what he was concerned about was whether someone in the position of this defendant ("There is no way that a reasonable person could - I think in her position be on notice of what was expected of her under the law.") who was an employee of the nursing home could in any event be determined to be a "caretaker" under

¶3 This is a horrible case and nursing home abuse is in the news almost every night. These old folks, like children, are among the most vulnerable among us and they need special protection in my opinion. That said, however, I do not think this Court ought to extend criminal liability to lower level nursing home employees. If that is done it ought to be done by the legislature. I agree with the trial judge that the law, while quite constitutional, was being unconstitutionally applied in this case.

¶4 Finally, I think we should carefully consider whether

FOOTNOTES