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Oliver v. Eastern Maine Medical Center

Superior Court of Maine, Penobscot

August 5, 2016


          Plaintiffs Attorney: Peter Clifford, Esq.

          Defendant's Attorney: Edward Gould, Esq.



         This matter came before the Court for a jury-waived trial on June 6, 7, 9, 16 and 17, 2016[1]. The Plaintiffs were represented by Attorney Peter Clifford, The Defendant was represented by Attorney Edward Gould.


         Randy Oliver, the decedent and father of the Plaintiffs, was admitted to EMMC on March 21-22, 2013 and discharged on May 16, 2013. Less than ten hours after his release, Mr. Oliver died in a house fire at his residence. The cause of death was smoke inhalation.

         On March 21, 2013, Mr. Oliver's daughter, Nicole Jernigan, and his former spouse, Patricia Oliver, found Mr. Oliver in a terrible state at his home and took him to Eastern Maine Medical Center (EMMC) emergency room. EMMC is an acute care hospital. EMMC was informed of the poor living conditions of Mr. Oliver's home, including a lack of running water, and that Mr. Oliver was urinating in bottles and defecating on the basement floor. The family also provided photographs of Mr. Oliver's living conditions to EMMC. Dr. Podraza concluded that the photographs "clearly showed a fire hazard". Mr. Oliver had second degree burns on his hands at admission, and EMMC (Dr. Podraza) was told that things had caught on fire in his living room on more than one occasion, EMMC was also informed that Mr. Oliver had been scammed out of his money on more than one occasion, When Mr. Oliver was admitted to EMMC he was diagnosed with: 1) acute chronic hepatic encephalopathy; 2) alcohol withdrawal syndrome needs to be ruled out; 3) deterioration of functional status; 4) possible protein calorie malnutrition; and 5) neglected state. His ethanol level at admission was 310 g/dl.

         On March 22, 2013, Mr. Oliver had an emergency psychiatric evaluation and a psychiatric consult. The psychiatric consult performed by Dr. Singer noted that Mr. Oliver "likely does have significant cognitive impairment that would be slow to resolve". Dr. Singer suggested that alcohol dementia was a possibility to rule out. Dr, Singer further indicated that "his alcohol addiction is potentially lethal, and 1 would support involuntary hospitalization and blue-papering if he attempts to leave again. The eventual appointment of a guardian may be needed." The emergency psychiatric evaluation report summarized that Mr, Oliver had "an inability to care for himself; however, because Mr. Oliver was admitted medically to EMMC, no action was taken as a result of the emergency psychiatric evaluation. During the emergency psychiatric evaluation, Mr. Oliver was oriented to person and place, but not situation. During this evaluation, Mr. Oliver was able to correctly identify the season, month and year and was able to inform the examiner that his son was a lawyer with the FBI.

         A 1:1 aide was assigned to be with Mr. Oliver during his hospital stay. The 1:1 aide prevented Mr. Oliver from leaving EMMC, despite his on-going desire to do so. A 1:1 aide remained with Mr. Oliver essentially from admission through discharge.

         Mr. Oliver had a CT scan on March 22, 2013. The CT Scan was read as showing "atrophy greater than expected for his age".

         Anthony Podraza, Ph.D., a neuropsychologist, examined Mr. Oliver on March 28, 2013. Despite other observations, Dr. Podraza found that Mr. Oliver was a "fairly accurate historian". On March 28, 2013, Mr. Oliver reported that his "biggest problem ... was getting his System 2000 water heater to work". The evaluation was terminated due to Mr. Oliver's poor motivation and lack of effort. At that time, Dr. Podraza opined that Mr. Oliver: 1) did not have the capacity to manage simple or complex finances independently, and 2) was not able to make informed decisions regarding his health.

         In accord with EMMC's suggestion, Mr. Oliver's children, Nicole Jernigan and Randy Oliver II, petitioned the Waldo County Probate Court to be named as guardians for their father. In support of their Petition, they submitted the medical report of Dr. Redding, Dr. Redding's report was based on his April 1, 2013 examination of Mr. Oliver. In his report, Dr. Redding opined that Mr. Oliver's prognosis was "probably poor for recovery of appropriate insight necessary for self care".

         Kathryn Kreamer was appointed by the Probate Court to be a "visitor". Ms, Kreamer interviewed Mr. Oliver on April 11, 2013 for approximately one hour. During the interview with Ms, Kreamer, Mr. Oliver was able to relate a fair amount of background information. He was able to easily converse, especially when describing the technical or mechanical aspects of his home and heating system. Ms, Kreamer relied on, among other things, the medical professionals' opinions and Mr. Oliver's denials or minimizations of his behaviors in forming her opinions. Ms. Kreamer recommended that a guardianship be granted and that Mr. Oliver be placed in a locked dementia facility.

         An EMMC discharge planner made a referral for a Goold Assessment On April 16, 2013, Susan Manocchio, RN, completed the Goold Assessment. The purpose of the Goold Assessment was to determine whether Mr. Oliver qualified for Maine Care-funded residential care. Ms. Manocchio spoke with Mr. Oliver for a "few minutes". Ms. Manocchio used a computerized assessment tool and determined that Mr. Oliver qualified for residential care.

         Mr. Oliver was treated at EMMC over the course of several weeks. There is no dispute that Mr. Oliver received appropriate medical care while at EMMC. Mr. Oliver was placed on an "alcohol-withdrawal protocol". His condition was well-managed, and his issues with withdrawal resolved. His hepatic encephalopathy dramatically reversed.

         Hospitalists at EMMC generally work one week on, and one week off. On May 7, 2013, Dr. Al- Sawalha, a hospitalism began a rotation that included caring for Mr. Oliver. Upon assuming care for Mr. Oliver, Dr. Al-Sawalha questioned why Mr. Oliver was remaining as an in-patient at EMMC. Based on his observations, Dr. Al-Sawalha ordered a repeat neuropsychological examination. Dr. Al-Sawalha rotated off duty on May 12, 2013.

         On May 7, 2013, the Waldo County Probate Court named Nicole Jernigan and Randy Oliver II as co-guardians for their father. The Probate Court's decision to name co-guardians for Mr. Oliver was based on the April 1, 2013 report from Dr. Redding, The Probate Court did not have the second Dr. Podraza report when issuing the May 7, 2013 order. The "Letters of Guardianship" provide:

Limitations: This Court limits this guardianship as follows: The Limited Guardian(s) shall encourage the development of maximum self-reliance and independence of the above-named person and act only as necessitated by the above-named person's actual mental and adaptive limitations or other conditions warranting this procedure (emphasis added),

         On May 7, 2013, the same day as the Probate Court proceeding, Dr. Podraza reexamined Mr. Oliver. Dr, Podraza's findings on May 7, 2013 were strikingly different than those he made on March 28, 2013. Dr. Podraza found that Mr. Oliver was:

alert, friendly, pleasant, and very cooperative, clean shaven man, .. Unlike his previous evaluation, he had no problems transitioning from sitting to standing or walking around his room. He walked slowly and his activity level was mildly subdued. He was orientated to person, place, and time. He understood the purpose of the evaluation. He reported that he is anxious to return to his home from the hospital. He exhibited good eye contact... Rapport was easily established. His speech was improved, but soft. He had a breathy quality to his speech, but all his words were understandable, unlike the mumbling he exhibited last examination. His tone, pacing, prosody, and volume were within normal limits. There was no evidence of paraphasic errors or word retrieval problems. His conversation was logical and appropriate.... He stated that he has lived alone for 25 years and felt he could take care of himself... Cognitively, he denied problems with attention/ concentration, memory, organization, planning, and reasoning. Emotionally, he stated that he is anxious to return home to take care of his home. He stated that he is planning on quitting drinking.... He reported that he was not planning to go to AA or therapy. He stated that now that summer is coming he can start fixing his house. He indicated that he will be hooking up his System 2000 water heater .... He stated he also plans on having the toilet running.

         Dr. Podraza concluded that Mr. Oliver now; 1) has the capacity to manage simple or complex finances independently; and 2) has the capacity to manage his person. Dr. Podraza also recommended that Mr. Oliver's discharge plan include referral to a community case manager and a referral to address his chronic pain.

         Between May 7, 2013, the day of both the Guardianship hearing and the second Podraza evaluation, and May 16, 2013, when Mr. Oliver was discharged, EMMC and Mr. Oliver's guardians had opposing opinions about discharge. EMMC determined Mr. Oliver did not need any acute medical care and that it may be holding Mr. Oliver against his will. The Guardians opposed discharge to anywhere other than a locked facility.

         Mr. Oliver himself consistently demanded release from EMMC. As early as the first day he was at the hospital, the medical records reflect his request to "go home". Mr, Oliver's desire to return home did not change. In addition to expressing his desire to return home, Mr. Oliver attempted to leave the hospital and/or made plans to leave the hospital against medical advice. In fact, the 1:1 aide was critical in keeping Mr. Oliver from leaving the hospital.

         Upon learning that EMMC believed that Mr. Oliver had regained capacity, the guardians disputed that finding and requested another neuropsychological evaluation. The guardians attempted to locate an examiner who was not connected to EMMC to conduct the evaluation, but were unable to find an examiner who could conduct the evaluation in a timely manner. On May 14, 2013, EMMC told the guardian[s] that they could have until May 17, 2013 to find an independent evaluator, and if they did not, EMMC would have a second evaluation by another EMMC practitioner. Later on May 14, 2013, the guardian[s] informed EMMC that they did not want a second evaluation and EMMC dropped arranging for another evaluation.

         On May 13, 2013, Mr, Cravens, a certified nurse practitioner, was the provider assigned to Mr. Oliver. At that time/Mr. Cravens concluded that Mr. Oliver had been medically stable for some time and that he did not need to be in the acute care hospital. However, Mr. Cravens understood that Mr. Oliver was prohibited from leaving due to "other issues" [legal).

         EMMC's attorney was involved in the legal determination of whether Mr. Oliver could be discharged given the guardians' directive that he not be discharged. After the guardians stated they did not want a second evaluation, EMMC's attorney told clinical staff that Mr. Oliver could be discharged (from a legal point of view) after it had been determined that he had regained capacity. The attorney initially indicated that EMMC would have to follow the guardians' directives, which Mr. Woolley communicated to the guardian(s); but after reviewing the "Letters of Guardianship", EMMC's attorney determined that Mr. Oliver could not be held against his will after he regained capacity. By May 16, 2013, EMMC, through its attorney, determined that Mr. Oliver could be released from the hospital - from a legal standpoint - if he had regained capacity.

         On May 15 and 16, 2013, Mr. Woolley assisted Mr. Oliver in completing paperwork to terminate the guardianship. This paperwork was never filed with the Waldo County Probate Court To complete the Indigency Affidavit in support of his request for an attorney, Mr. Oliver needed to inform the Court of the amount of his monthly social security income and the balance of his bank account. On May 15, 2016, Mr. Woolley suggested that Mr. Oliver obtain this information. Upon Mr. Woolley's arrival at the hospital on May 16, 2013, Mr. Oliver indicated that he had called his bank and had obtained both the balance of his bank account and the amount of his monthly social security income, EMMC eventually followed Mr. Oliver's request to be released to his home. In particular, on May 16, 2013, Mr. Cravens, was still the person in charge of Mr. Oliver's care. Again, Mr. Cravens spent about 15 minutes talking directly with Mr. Oliver. Mr. Oliver remained medically appropriate for discharge on May 16, 2013, Mr. Cravens made his own assessment of Mr. Oliver based upon his review of Mr. Oliver's record, and on his conversations with EMMC staff and Mr. Oliver himself. Based on his own assessment, and relying heavily on Dr, Podraza's assessment, Mr, Cravens determined that Mr. Oliver had sufficient capacity to manage his own affairs, and he discharged Mr. Oliver.

         The diagnoses at discharge were: 1) alcohol withdrawal, and 2) probably alcohol-induced dementia. The discharge plan contained a review of Mr. Oliver's on-going medications and a referral back to his PCP. The discharge plan also incorporated the recommendations made by Dr. Podraza, including a referral for pain management at the Pain Clinic and community case management, Mr. Oliver declined the suggestion that he participate in substance abuse treatment and the suggestion that he attend AA.

         On May 16, 2013, Mr. Woolley left a message for a co-guardian informing him that Mr. Oliver would be discharged later that day. Later, at approximately 1 pm on May 16, 2013, Mr, Woolley called Nicole Jernigan and informed her that Mr. Oliver would be released at 2 pm. Ms. Jernigan expressed her strong opposition to the discharge. EMMC also offered to get Mr. Oliver a taxi to be driven to either Ms. Jernigan's or her mother's, Patricia Oliver, residence. Ms, Jernigan and Ms. Oliver declined this suggestion. Mr. Oliver left EMMC with his fried, Mr. Ayer, at approximately 2:50 pm on May 16, 2013.

         Ms. Jernigan and her mother visited with Mr. Oliver twice at his home between his discharge and the time of the fire in which Mr. Oliver lost his life. As they were leaving around 8:45 or 9:00 pm, they observed that Mr. Oliver was "definitely inebriated".

         Tragically, sometime around 10 pm on May 16, 2013, Mr. Oliver's home became fully involved in a fire. His remains were found inside several hours later.


         I. Negligence

         Plaintiffs argue that EMMC should not have discharged Mr. Oliver without the guardians' consent and that EMMC failed to discharge Randy Oliver with a safe and reasonable discharge plan, EMMC argues that it was compelled to discharge Mr. Oliver once' it determined that he had regained capacity and that Mr. Oliver was discharged with a safe and reasonable discharge plan.

         Whether or not Mr. Oliver had capacity will dictate whether or not EMMC was bound to follow Mr. Oliver's demand he be discharged. The parties agree that whether Mr. Oliver had capacity influences the specific duty at discharge. Given the existence of the guardianship, the Court analyses not only whether EMMC was negligent in determining Mr. Oliver's capacity, but also whether Mr. Oliver had capacity.

         Therefore, to determine whether EMMC provided Mr. Oliver with a safe and reasonable discharge plan, the Court must first determine whether Mr. Oliver had the capacity to manage his person on May 16, 2013.

         After full consideration of all of the evidence in this case, the Court finds that EMMC was not negligent in determining Mr. Oliver's capacity and that Mr. Oliver had the capacity to manage his person on May 16, 2013.

         A. Capacity

         1. ...

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