10th Patient Dies; Ex-Prosecutors Unsure If Nursing Home Criminally Responsible

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HOLLYWOOD (CBSMiami/AP) — A tenth patient from a Hollywood nursing home has died, authorities announced Thursday, as several former state prosecutors expressed their doubts about whether criminal charges will be brought against the owner or staff.

Martha Murray, 94, died Wednesday. Carlos Canal, 93, died a day earlier. The elderly patients spent three days in sweltering heat after Irma knocked out the facility’s air conditioning, though investigators are trying to determine if the latest deaths were specifically heat-related.

While Governor Rick Scott and relatives of those at the Rehabilitation Center at Hollywood Hills say criminal charges are warranted, Florida law may make prosecution difficult.

Criminal prosecution will hinge on whether the nursing home staff made honest mistakes or were “culpably negligent.”

Florida defines that as “consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.”

The home has said it used coolers, fans, ice and other methods to keep the patients comfortable — and that might be enough to avoid prosecution.

“There is a difference between negligence, which is what occurs when you are not giving a particular standard of care vs. culpable negligence,” said David Weinstein, a former state and federal prosecutor now in private practice. “So if they are doing everything humanly possible given the circumstances and this all still happened it may be negligent and provide the basis for a civil lawsuit, but not enough for criminal charges.”

Retired University of Florida law professor Bob Dekle, who prosecuted serial killer Ted Bundy as an assistant state attorney, said he doubted charges would be brought.

“I would rather be a defense attorney on this case than a prosecutor,” Dekle said. “There are some cases that are better tried in civil court than criminal and this might be one of them.”

Former U.S. Attorney Kendall Coffey disagreed.

“Given the magnitude of the tragedy and the apparent availability of a hospital 50 yards away, prosecutors are not going to accept that this was an unavoidable tragedy,” he said.

Gary Matzner, the nursing home’s attorney, said in a statement that its owner, Dr. Jack Michel, and the staff are cooperating with the investigation.

“The center and its employees and directors are devastated by this tragedy,” he said.

When Irma reached Broward, it knocked over a tree which took out a transformer that powered the nursing home’s air conditioner. The facility it maintained power otherwise. The nursing home staff the outage was to Florida Power & Light and they were promised repairs in the next two days. The utility never arrived.

Scott’s office said that over those two days, home administrators Jorge Carballo and Natasha Anderson were in contact with the state about the failed air conditioner but never said the situation had become dangerous. The state said they were told to call 911 if needed.

On the afternoon of September 12th, the home borrowed portable air coolers from Memorial Regional Hospital, the trauma center across the street. Later that night, home administrators said, a physician’s assistant checked the patients and none were overheated and the building temperature never exceeded 80 degrees. Under state law, the temperature was not supposed to exceed 81 degrees.

In the early hours of September 13th, the deaths began. Three 911 calls were made before 6 a.m., causing Memorial staff to rush across the street to offer assistance. Doctors and nurses said they found the home’s staff working to cool the patients, although they and police have said the facility was very hot.

No temperature reading has been released as police have said that is part of the investigation.

Three people died on the home’s second floor and six succumbed at the hospital, including a 93-year-old man who died Tuesday. The state said four of the deceased had body temperatures between 107 and 109 degrees.

Dr. Randy Katz, the hospital’s emergency director, said last week it was impossible to say whether any of the dead would have survived if they had gotten to the hospital hours earlier.

The number of deaths and injured could be a determining factor in whether to bring charges. Weinstein said prosecutors could argue that after the first patients became seriously ill, administrators should have known an evacuation was necessary. Dekle agreed the number could be key.

“The more dead victims there are in a homicide case, the less likely a jury is to find reasonable doubt,” Dekle said.

(TM and © Copyright 2017 CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2017 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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