(Super. Ct. No. 2006027686) (Ventura County) Charles R. McGrath, Judge Superior Court County of Ventura.
The opinion of the court was delivered by: Coffee, J.
CERTIFIED FOR PUBLICATION
The People of the State of California appeal from an order finding Registered Nurse Chad Josef Medlin and Licensed Vocational Nurse (LVN) Sandra Marie Monterroso factually innocent of felony charges of dependent adult abuse likely to produce great bodily harm or death in violation of Penal Code section 368, subdivision (b)(1).*fn1 The order followed their acquittal by jury. The court directed destruction of records of their arrests pursuant to section 851.8, subdivisions (b) and (c). We issued a writ of supersedeas staying the destruction of records pending appeal.
Appellant contends that, notwithstanding the acquittals, reasonable cause exists to believe that respondents committed the offense of which they were charged. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Jeremiah Allen nearly drowned in a surfing accident in October 2003. He was rendered semi-comatose and paraplegic. In January 2004, he was admitted to Care Meridian, a long-term care facility at which respondent Medlin was director of nursing and Monterroso was employed as an LVN. Care Meridian is a 12-bed facility that specializes in accident victims. It was about half full while Allen was there. Allen died at the facility on the afternoon of June 2, 2004, because his tube feedings had been introduced into his abdominal cavity instead of his stomach.
Events Leading To Allen's Death
From the time of his accident, Allen had been fed with a size 20 gastrostomy tube, or "G-tube." A G-tube passes directly into the patient's stomach from his belly, through the abdominal cavity, bypassing the esophagus. Standing physician's orders called for a size 14 French G-tube and authorized G-tube replacement if the tube became blocked (occluded) or was pulled out. By the time of trial it was clear that the discrepancy in tube size did not contribute to Allen's death.
On June 2 at 3:00 a.m., Monterroso found Allen's G-tube lying beside him on the bed. She did not know how long it had been out. She noted in his chart that he had pulled it out forcibly, but she did not see that happen. She did not call Allen's physician or alert Medlin, and she did not check the standing orders. She had not recently been trained in G-tube placement.*fn2
Monterroso replaced the G-tube. She used two methods to try to verify that she had placed the tube in the stomach. First, she used a stethoscope to listen to air passing from a syringe into the stomach (auscultation) and heard a whooshing sound in the abdominal area. Next, she unsuccessfully attempted to aspirate (pull up) gastric fluids. From the absence of gastric fluid, she concluded Allen's stomach was empty.
Monterroso proceeded with Allen's scheduled feedings after 3:00 a.m. and again at 6:00 a.m. She reported in his chart that he tolerated his 3:00 a.m. feeding well, but in the medication check-out record she noted that at about 4:00 a.m. she gave Allen ibuprofen for "discomfort with G-tube removal" and Ativan for "G-tube reinserted, (increased) anxiety." She did not recall any problems with the 6:00 a.m. feeding.
After his 3:00 a.m. feeding, Monterroso noted that Allen was sweating, grimacing and groaning. She testified that she was not concerned because she had seen him sweat, grimace and groan before. She left her shift at 7:00 a.m. without notifying Allen's physician or Medlin of Allen's condition. She did inform the morning LVN, Patsy Carper, that she had replaced Allen's feeding tube. Before Monterroso left Allen appeared restful to her.
Carper observed that Allen was sweating and straining. She testified that he always sweated and strained before having a bowel movement. Carper had worked at the facility for two weeks and had not completed orientation. Before giving Allen his medications and morning feeding, Carper tried to aspirate gastric fluids to ensure that the G-tube was in the stomach. She got "very little contents." She concluded that this was because Allen had not had a bowel movement. She later told a California Department of Public Health (DPH)*fn3 investigator that the 9:00 a.m. feeding "went down slowly," but that she was able to complete it after she got him upright on a tilt table.
At about 7:00 a.m., Certified Nursing Assistant, Lazara Lavano, took Allen's vital signs. She noticed that Allen was pale and felt that something was wrong. She had not seen him this way before. She had cared for Allen since his arrival at the facility six months earlier.
Medlin arrived at the facility sometime after 9:00 a.m. At about 10:00 a.m., Lavano and another staff member put Allen in a therapeutic standing frame. Lavano saw that he was breathing fast and perspiring. Allen's therapist saw that he was pale, sweating profusely and his eyes were wide open whereas they were usually closed. The therapist was new at the facility and had treated Allen only once before.
Staff returned Allen to his bed to rest before a scheduled therapy session. Lavano told LVN Carper what had happened. The therapist continued checking on Allen during the morning and Allen continued to sweat profusely.
Sometime between 11:00 a.m. and noon, Lavano took Allen's vitals. He had a fever over 101 degrees. She tried to take his blood pressure but could not hear anything. Another staff member tried and also could not hear anything. Lavano told the morning nurse that Allen had a fever, she could not get his blood pressure and he was pale and did not look good. Lavano used ice to try to cool Allen.
At about 11:00 a.m., Carper asked Medlin to check Allen because he was sweating. Medlin entered Allen's room. Carper told Medlin that Lavano could not hear Allen's blood pressure, but that it was fine because she, Carper, was able to get his blood pressure using palpitation. Medlin, who was sick with a cold, left the room and returned sometime before 1:00 p.m. When he returned, he said, "Oh, he's fine. He's probably competing with me."
Between 11:30 a.m. and noon, Medlin spoke by phone with Allen's treating physician about a routine meeting. Medlin did ...