RANDY N. OLIVER, II AND NICOLE JERNIGAN, PERSONAL RERESENTATIVES of the ESTATE OF RANDY N. OLIVER and RANDY N. OLIVER, II AND NICOLE JERNIGAN, Plaintiffs
EASTERN MAINE MEDICAL CENTER, Defendant
Plaintiffs Attorney: Peter Clifford, Esq.
Defendant's Attorney: Edward Gould, Esq.
matter came before the Court for a jury-waived trial on June
6, 7, 9, 16 and 17, 2016. The Plaintiffs were represented by
Attorney Peter Clifford, The Defendant was represented by
Attorney Edward Gould.
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
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.
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.
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.
Oliver had a CT scan on March 22, 2013. The CT Scan was read
as showing "atrophy greater than expected for his
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
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".
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.
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
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.
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.
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),
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.
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.
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.
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.
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.
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"
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
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.
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.
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,
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
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.
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
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.
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.
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.