Opinion
No. 0506011387.
Submitted: October 30, 2006.
Decided: November 20, 2006.
Upon Consideration of Defendant's Motion to Dismiss and Motion in Limine.
DENIEDSusan Bair Purcell, Esq., Deputy Attorney General for the State.
Kevin M. Howard, Esq., Young, Malmberg Howard, P.A., Dover, Delaware, for Defendant.
OPINION
On December 5, 2005, the Defendant, Unsun Whitmore, was indicted by a grand jury for Neglect, pursuant to 16 Del. C. § 1136(a). The indictment alleges that the neglect occurred on or about December 12, 2003, when the Defendant failed to carry out the victim's prescribed treatment plan. The Defendant moves this Court to dismiss the charges or, alternatively, to limit the presentation of evidence in the State's case in chief. She argues that the doctrine of collateral estoppel bars the relitigation of the factual and legal issues of neglect in this criminal proceeding because an appeal of her placement on the Adult Abuse Registry ("the AAR") concluded in her favor. Defendant's Motions are DENIED.
The AAR is a "central registry of information established by § 8564 of Title 11 that relates to substantiated cases of adult abuse or neglect. Health care facility employers must receive an Adult Abuse Registry check before hiring employees who would have direct access to patients/residents." 29 Del. C. 7971(b)(1).
STATEMENT OF FACTS
In November 2003, the victim, Charles Wurzel, was admitted to Kent General Hospital after suffering an acute brain stem stroke. On December 10, 2003, a percutaneous endoscopic gastronomy ("PEG") was surgically placed by a gastroenterologist to supplement Mr. Wurzel's food intake. On December 11, 2003, Mr. Wurzel was admitted to the Green Valley Nursing Pavilion. At approximately 4:00 a.m. on December 12, Mr. Wurzel apparently pulled out the PEG tube. The Defendant replaced the tube with an 18 Fre nch g astro nomy tube, after she was unable to replace it with a 20 French gastronomy tube. The next day Mr. Wurzel was readmitted to Kent General Hospital and, due to complications from the feeding tube replacement, he underwent surgery on December 15.Following Mr. Wurzel's surgery, his family filed a complaint with the Delaware Department of Health and Social Services, Division of Long-Term Care Residents Protection ("the DLTCRP"). The DLTCRP responded as required by statute, acknowledging the complaint and initiating an investigation. The DLTCRP also notified the Medicaid Fraud Control Unit of the Attorney General's Office, the law enforcement agency having jurisdiction to conduct a criminal investigation of this matter. In June 2004, the DLTRCP's investigation resulted in a finding that the complaint was "substantiated." Such a finding allows the DLTCRP to take the appropriate enforcement action, which it determined was to refer the matter to the AAR, the Attorney General's Office (Medicaid Fraud Control Unit), the Board of Nursing, and the Board of Medical Practice. On July 7, 2004, the DLTCRP notified the Defendant that she had been placed on the AAR for a period of five years. Additionally, the DLTCRP's letter informed the Defendant that the investigation resulted in a finding that the abuse was "substantiated pending appeal," that such finding was entered on the AAR, and that she had 30 days to request a "fair hearing."
The Delaware Code, specifically 16 Del. C. § 1132(c), provides that "[i]n addition to those persons subject to subsection (a) of this section any other person may make such a report, if such persons have reasonable cause to believe that a patient or resident of a facility has been abused, mistreated, neglected or financially exploited."
"In responding to abuse, neglect, mistreatment and financial exploitation complaints, the Division shall: . . . (2) Acknowledge all complaints . . . [and] (3) Forward complaints to the appropriate Division staff who shall determine, through the use of standard operating procedures developed by the Division, whether an investigation should be initiated to respond to the complaint." 16 Del. C. § 1134(d).
Section 1134(d)(4)(c) of Title 16 provides that when "[a] resident or patient has been hospitalized or received medical treatment due to alleged abused, neglect or mistreatment" the DLTRCP is to begin an investigation within 24 hours. When that is done, 16 Del. C. § 1134(d)(5) states that the DLTRCP must then "[c]ontact the appropriate law enforcement agency."
Delaware Dept. of Health and Human Services, DE ADC 40 300 007, § 4(A) (Westlaw) (2006) ("An individual against whom an allegation is substantiated pending appeal shall be notified by certified mail . . . that his/her name has been entered on the Adult Abuse Registry.").
Delaware Dept. of Health and Human Services, DE ADC 40 300 007, § 3(B) (Westlaw) (2006) ("If the investigation substantiates pending appeal that the alleged abuse occurred, the Division's Investigations Unit Chief shall enter on the Adult Abuse Registry, with a finding of 'Substantiated Pending Appeal,' the individual's name, date/time of the incident, a description of same and the length of time the finding shall remain on the Registry.").
Delaware Dept. of Health and Human Services, DE ADC 40 300 007, § 4(A) (Westlaw) (2006) ("An individual against whom an allegation is substantiated pending appeal . . . shall be offered a right to an administrative hearing. The burden of proof in such hearing shall be on the Division.").
The Defendant sought a hearing, which took place over two days, December 9 and December 16, 2004. At the hearing, the DLTCRP was represented by a Deputy Attorney General (DAG) assigned to the Civil Divisio n of the Att orney General 's Office. The DAG argued in support of the DLTCRP's finding by asserting that the Defendant had neglected the victim in violation of 16 Del. C. § 1131(9)(a), which defines "Neglect" as the "[l]ack of attention to physical needs of the patient or resident including, but not limited to toileting, bathing, meals, and safety." The DAG was clear that the DLTCRP was not alleging a violation of any of the other definitions of Neglect. On April 20, 2005, the hearing officer issued his decision, in which he found that the State had not met its burden of establishing a violation of 16 Del. C. § 1131(9)(a) by a preponderance of the evidence. The hearing officer specifically found that the Defendant did attend to the needs of the alleged victim. Therefore, the officer determined that the neglect complaint was not substantiated and the finding of "substantiated pending appeal" was removed from the AAR.
Pursuant to Delaware Dept. of Health and Human Services, DE ADC 40 300 007, § 4(E) (Westlaw) (2006), "the hearing officer has the power to compel the attendance of witnesses and the production of evidence." Section 4(G) grants the individual against whom the complaint is made to "appear with or without an attorney, submit documentary evidence, present witnesses, and question any witness the Division presents."
Pursuant to Delaware Dept. of Health and Human Services, DE ADC 40 300 007, § 4(H) (Westlaw) (2006), "[i]f at the conclusion of the hearing, the hearing officer concludes that the individual has not committed adult abuse, the finding of 'Substantiated Pending Appeal' shall be removed from the Adult Abuse Registry."
The State then sought an indictment for Neglect, which the grand jury returned on December 5, 2005. The indictment alleges that the Defendant neglected the victim, as defined in 16 Del. C. § 1131(9)(c), in violation of 16 Del. C. § 1136(a), and this neglect caused the victim serious physical injury. On June 16, 2006, the Defendant then filed the present motion, captioning it as a motion to dismiss the indictment, or, alternatively as a motion in limine to limit the presentation of evidence in the State's case in chief.
This provision defines neglect as a "[f]ailure to carry out a prescribed treatment plan for a patient or resident."
This provision states: "Any person who knowingly abuses, mistreats, or knowingly or recklessly neglects a patient or resident of a facility shall be guilty if a class A misdemeanor. Where the abuse, mistreatment or neglect results in serious physical injury then such person shall be gu ilt y of a c las s D f elo ny." Here , the Def endant is a ccus ed o f cau sing ser ious physical injury.
DISCUSSION
The Defendant rests her motion on the doctrine of collateral estoppel. She argues that, because an issue of ultimate fact has been adjudicated in her favor at the fair hearing the State is estopped from raising the issue again in a criminal prosecution. The State counters that the doctrine does not apply in this case or, if it does, that the elements are not met on these facts.
To begin, the doctrine of collateral estoppel is a refinement on the doctrine of res judicata. Where res judicata bars a court or administrative agency from reconsidering conclusions of law previously adjudicated, collateral estoppel precludes relitigation of issues of fact in a subsequent proceeding concerning a different claim or cause of action involving a party to the first case. Thus, res judicata is alternatively thought of as claim preclusion, while collateral estoppel is thought of as issue preclusion. In order for collateral estoppel to be triggered, the following factors must be present: (1) the issue previously decided is identical to the issue at bar; (2) the prior issue was finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Tyndall v. Tyndall, 238 A.2d 343, 346 (Del. 1968).
Betts v. Townsends, Inc., 765 A.2d 531, 534 (Del. 2000).
See Elder v. El Di, Inc., 1997 WL 364049, at * 6 (Del.Super. 1997).
See M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 520 (Del. 1999).
City of Newark v. Unemployment Ins. Appeal Bd., 802 A.2d 318, 324 (Del.Super. 2002).
While collateral estoppel has historically worked as a bar in civil lawsuits, it has also been an established rule of federal criminal law. From the beginning, when applied to a criminal prosecution, the doctrine has barred the government from relitigating an issue of ultimate fact that has once been determined by a valid and final judgment. In 1971, the Delaware General Assembly codified the application of collateral estoppel to criminal proceedings, and the Delaware Supreme Court has applied it in criminal cases. In one such case, State v. Banther, the Supreme Court held that "[p]rinciples of double jeopardy, which are limited to the criminal context, are subsumed by the broader doctrine of collateral estoppel."
See United States v. Oppenheimer, 242 U.S. 85 (1916).
Id. at 88. See also Ashe v. Swenson, 397 U.S. 436 (1970).
See 58 Del. Laws, c.497 §§ 207-208 (1971); 11 Del. C. §§ 207-208.
See Taylor v. State, 402 A.2d 373, 375 (Del. 1979); Banther v. State, 884 A.2d 487, 492 (Del. 2005).
Banther, 884 A.2d at 492.
Hence, the question the Defendant has placed before this Court is whether a decision in her favor, and therefore against the State, at a prior administrative proceeding bars a relitigation of those facts at a subsequent criminal prosecution. While no court has addressed whether an AAR fair hearing determination can result in collateral estoppel, numerous courts, including our own, have addressed the broader issue presented here. Specifically, in State v. Warren, the defendant argued that, because a civil jury determined that she did not forge the signature of the decedent, the State was collaterally estopped from indicting her for forgery. Judge Graves reasoned there were two reasons that collateral estoppel was inapplicable.
See Janes v. Smith, 711 A.2d 1319 (Md. 1998); State v. Warren, 1997 WL 366987 (Del.Super. 1997); State v. Cassady, 662 A.2d 955 (N.H. 1995); State v. Barlow, 618 A.2d 579 (Conn.App. 1993); State v. Hendricks, 1984 553552 (Del.Super. 1984).
Warren, 1997 WL 366987, at *1.
First, nothing in 11 Del. C. § 208 suggests that the General Assembly intended for either civil or administrative matters to constitute collateral estoppel with regard to criminal proceedings. Rather, this statute states that "[a]lthough a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a court having jurisdiction over the subject matter of the second prosecution." The unambiguous language of that section demonstrates that the General Assembly contemplated that collateral estoppel, in the criminal context, must be limited to instances when a prior criminal prosecution, not a prior civil or administrative proceeding, is followed by a subsequent criminal prosecution. Therefore, in the case at bar, because the AAR fair hearing was not a former criminal prosecution, the doctrine of collateral estoppel, as codified by § 208, does not apply.
Id. at *5.
11 Del. C. § 208 (emphasis added).
Second, there is a strong public interest in prosecuting a crime without regard to what has occurred in prior civil or administrative proceedings. In State v. Hendricks, the defendant was arrested for DUI, but the Secretary of the Department of Public Safety, at a license revocation hearing, concluded that the defendant's license should not be revoked because of his arrest. The defendant argued that because of the favorable outcome in the administrative hearing the doctrine of collateral estoppel prevented the State from prosecuting him on the DUI charge. The Court never determined if the de fense of col later al est oppe l base d on t he ou tcome of a former civil or administrative proceeding applied to bar a subsequent criminal proceeding. Instead, assuming it did, the Court concluded that the defense was not applicable in the case, because of the exceptions to the application of collateral estoppel under normal circumstances ( i.e., a former civil proceeding followed by a second civil proceeding). One of these exceptions mandates that collateral estoppel is inapplicable "when there is a clear and convincing need for a new determination of the issue because of potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action." A strong public interest is at work here. The State must be allowed to prosecute the alleged crime of neglect at issue in this case without regard to what occurred in the AAR fair hearing. The issues of patient abuse and neglect have attracted much public concern. The General Assembly, accordingly, has determined that in order to deter such abuse and neglect healthcare workers would be subjected to both placement on the AAR and to criminal prosecution. Defendant's position would be counter to the General Assembly's intent.
Warren, 1997 WL 366987, at *5 (citing State v. Hendricks, 1984 WL 553552, at *1 (Del.Super. 1984)).
Hendricks, 1984 WL 553552, at *1.
Id.
Id. at *2.
Id. (citing Restatement (Second) of Judgments § 83).
Id. at *3 ("There is a strong public interest in the prosecution of crime in general and in prosecuting offenses involving driving while under the influence in particular. Moreover, there are often victims of those offenses, whose interests would not be adequately protected by determination of the issue in administrative license revocation proceedings.").
See 16 Del. C. § 1136.
In addition, there is a third reason that collateral estoppel is inapplicable in this case: the General Assembly, in drafting the statute governing the DLTCRP, intended that factual findings in an AAR hearing were not to affect a criminal proceeding. When the General Assembly created the DLTCRP it granted the DLTCRP the power to investigate the alleged incident and take any enforcement measures it deemed appropriate, including placement of an accused on AAR. The General Assembly also granted the law enforcement agency with jurisdiction over the alleged incident the power to conduct "a complete criminal investigation" and to "assess probable cause and effectuate arrests when appropriate." Once the law enforcement agency arrested an accused, the Criminal Division of the Attorney General's Office was to handle the prosecution of the matter and was to keep the DLTCRP informed of the status of the case. The General Assembly clearly anticipated that the enforcement actions undertaken by the DLTCRP and the Attorney General's Office actions would occur successively, if not simultaneously, because the statute states that "one or more of the following courses of action, as appropriate" may be pursued, listing both enforcement action by the DLTCRP and criminal prosecution by the Attorney General's Office as possible courses of action. Thus, by vesting the DLTCRP with enforcement power and the Attorney General's Office with prosecution power, the General Assembly intended these actions to be independent of one another such that the factual findings in one proceeding were not to affect the other proceeding in any way. Thus, the State was well within its authority to indict the Defendant despite the Defendant's success at the AAR hearing, and collateral estoppel was to work no bar to the prosecution. Furthermore, the Court notes that even if the Defendant had lost at the AAR hearing, incurring the attendant penalties, nothing in the statute would have prevented the State from seeking a criminal indictment for Neglect, just as it did under the circumstances presented here.
See 16 Del. C. § 1134(d)(3), (4).
See 16 Del. C. § 1134(d)(6) (emphasis added).
See Id.
Therefore, for the foregoing reasons, both the Defendant's motion to dismiss the indictment and her motion in limine are DENIED. The State may maintain the indictment against the Defendant and use any evidence presented in the AAR fair hearing at trial. The case will now proceed to trial as scheduled.
SO ORDERED.