Opinion

Oliver v. Eastern Maine Medical Center

Court
Superior Court of Maine
Filed
Aug 8, 2016
Status
Unpublished
On the bench
Ann M. Murray
Cited by
0 cases

The opinion

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss. CIVIL ACTION

DOCKET NO.: CV-13-126

RANDY N. OLIVER, 11 AND NICOLE JERNIGAN,

PERSONAL RERESENTATIVES of the

ESTATE OF RANDY N. OLIVER and

RANDY N. OLIVER, II AND NICOLE JERN[GAN,

Plaintiffs

v. JUDGMENT

EASTERN MAINE MEDICAL CENTER,

Defendant

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.

FACTS

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

1 The Court also held a conference with counsel on July 15, 2016 and informed counsel that the

three (3) notebooks of medical records provided to the Court as Exhibits were not complete and did

not have many Bates-numbered documents. Counsel agreed that a complete copy of the Bates­

numbered documents would be reproduced and provided to the Court, and that was done on July

18, 2016 in the form of four (4) notebooks, bates 1 - 1387 .

1

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 I 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

2

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 fl, 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 backgrnund information.

3

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 faciHty.

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 hospitalist, 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. AI-Sawalha ordered a

repeat neuropsychological examination. Dr. AI-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

4

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 re­

examined 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 rnom. 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 anxiqus 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.

5

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

6

EMMC that they did not want a second evaluation and EMMC dl'opped 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 o.f 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 lndigency 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,

7

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. M1·. Oliver left EMMC

with his fried, Mr. Ayer, at approximately 2:50 pm on May 16, 2013.

8

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 seve1·a\ hours later.

LEGAL ANALYSIS

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 Comt must first determine whether Mr. Oliver had the

capacity to manage his person on May 16, 2013.

9

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. Standard of Capacity

Mr. Oliver was the subject of a limited guardianship on May 16, 2013.

On May 7, 2013 the Probate Court (Longley, J.) ordered a "Limited Guardianship".

The "Letters of Guardianship" stated, among other things:

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).

The Probate Code also addresses the obligations of health-care providers. In

particular, the Code provides as follows:

A primary physician who makes or is informed of a determination that a patient

lacks or has recovered capacity or that another condition exists that affects an

individual instruction or the authority of an agent, guardian, or surrogate or the

validity of an advance health-care directive shall promptly record the determination

in the patient's health-care record and communicate the determination to the

patient, if possible, and to any person authorized to make health-care decisions for

the patient.

18-A M.R.S. § 5-807(c)(emphasis added). The Code also provides:

A health-care decision made by a guardian for the ward is effective without judicial

approval, except under the following circumstances: (1) The guardian's decision is

contrary to the ward's individual instructions and other wishes, expressed while the

ward had capacity;

Id. § 806( c) .

10

The Probate Code defines "capacity", as follows:

"Capacity" means the ability to have a basic understanding of the diagnosed

condition and to understand the significant benefits, risks and alternatives to the

proposed health care and the consequences of foregoing the proposed treatment,

the ability to make and communicate a health care decision and the ability to

understand the consequences of designating an agent or surrogate to make health­

care decisions.

Id.§ 801(c). Finally, the Probate Code defines "health-care decision" as follows:

"Health-care decision" means a decision made by an individual with capacity, or by

the individual's agent, guardian or surrogate, regarding the individual's health care,

including: (1) selection and discharge of health-care providet's and institutions, ...

Id.§ 801(f).

By May 16, 2013, Mr. Oliver had been at EMMC since March 21, 2013 (nearly two

months). There is no dispute that Mr. Oliver was effectively treated during the

hospitalization. There is also no dispute that much earlier than May 16, 2013, Mr. Oliver did

not have any medical needs that needed to be addressed at an acute care hospital.

Dr. AI-Sawalha assumed care of Mr. Oliver on May 7, 2013, as part of a regular

rotation of hospitaJists. During Dr. Al-Sawalha's first contact with Mr. Oliver on May 7,

2013, Mr. Oliver was calm and cooperative; he shook the doctor's hand and answered all

questions apprnpriately; his thought processes were appropriate; and he had good eye

contact. When Dr. Al-Sawalha first began caring for Mr. Oliver, Dr. Al-Sawalha was

sufficiently struck by Mt'. Oliver's presentation to question why Mr. Oliver was still

hospitalized. As a result, he ordered a repeat neuropsychological evaluation.

Dr. Podraza performed the repeat neuropsychological evaluation. EMMC chose to

have Dr. Podraza perform the second neuropsychological evaluation as he had performed

11

the first and thus he had the benefit of his own comparisons. The purpose of the evaluation

was to determine whether Mr. Oliver had the capacity to make decisions and manage

himself. On May 7, 2013, Dr. Podraza spent approximately one-half hour interviewing Mr.

Oliver, plus approximately one hour administering testing to Ml'. Oliver.

On May 7, 2013, Dr. Podraza noted a "remarkable" difference in Mr. Oliver. Dr.

Podraza found that Mr. Oliver was alert, awake, and responsive. Mr. Oliver remembered Dr.

Podraza from the evaluation five weeks earlier. Mr. Oliver engaged in logical and

appropriate conversation with Dr. Podraza. Mr. Oliver expressed to Dr. Podraza that he

knew why he was being evaluated and that he knew he had to do well on the evaluation to

go home. Dr. Podraza believed that Mr. Oliver was highly motivated to participate in the

second neuropsychological evaluation given his goal to be released from the hospital. Mr.

Oliver's attention to task was high. Mr. Oliver responded to cues and prompts provided by

Dr. Podraza.

During this second evaluation, Mr. Oliver acknowledged that he was an alcoholic,

and he expressed the desire to stop drinking. This is a demonstration of insight by Mr.

Oliver, even though he alternatively explained that all his prnblems were due to the cold

weather. Mr. Oliver also expressed a plan to fix certain problems in his home. These

expressions of a plan to stop drinking and fix his home demonstrate that Mr. Oliver had the

ability to identify, appreciate, and express a choice about the problems of his drinking and

the condition of his home. Recognizing a need to do well on the capacity evaluation to

further his goal to return home is another example of Mr. Oliver recognizing a problem

(being kept in the hospital) and offering a reasonable solution (doing well on an

evaluation). Recognizing and understanding a problem, reasoning about approaches to

12

solving the problem, and stating a· choice are the essence of having the capacity to make

decisions.

Dr. Podraza characterized Mr. Oliver as doing "reasonably well" on the tests he was

administered. His overall neuropsychological functioning was in the low average range.

The testing pointed to Mr. Oliver having deficits in immediate memory, perceptual motor,

and executive function. Mr. Oliver tested as having strengths in visual/spatial skills and

attention span, his delayed memory was intact, and his language function for naming ability

was good. Dr. Podraza opined that the deficits Mr. Oliver had were not significant enough to

find that he did not have capacity. During the testing, Mr. Oliver took a logical approach to

the testing and showed a reasoning process that was intact.

Dr. Podraza opined that Mr. Oliver had sufficient capacily to manage his person. Dr.

Podraza concluded: "Capacity to Manage his person: Mr. Oliver's neuropsychological status

has clearly improved. He has stated a willingness to refrain from alcohol upon his discharge

from EMMC. He also expressed a desire to clean up his house to make it livable. Given these

factors, it is this examiner's opinion that Mr. Oliver now has the capacity to make better

informed decisions regarding his health". While Dr. Podraza could have written a better­

worded report, he concluded, based on his testing and investigation, that Mr. Oliver had

regained capacity to manage his person. The Court is satisfied that Dr. Podraza - in fact ­

found that Mr. Oliver had regained capacity by May 7, 2013 even though he used the phrase

"Mr. Oliver now has the capacity to make betl'er informed decisions regarding his health"

(emphasis added). Moreover, had Dr. Podraza determined that Mr. Oliver had improved,

but had not yet regained capacity, there would have been no reason for Dr. Podraza to

make discharge recommendations.

13

While Dr. Podraza was not pleased that he had not been informed that there was a

guardianship proceeding underway, the Court finds that his disappointment does not affect

the validity of his ultimate opinion.

Dr. Podraza stated in his report that a CT scan of Mr. Oliver's brain did not reveal

any evidence of abnormalities. In fact, the CT scan was read as showing atrophy greater

than expected for Mr. Oliver's age. A CT scan looks at structural issues, while a capacity

exam looks at functional issues. The Court has carefully considered the results of the CT

scan and the fact that Dr. Podraza did not know the actual results of the CT scan when he

formed his opinion that Mr. Oliver had regained his capacity to make decisions. The Court

accepts that the CT scan findings are non-specific findings and do not establish that Mr.

Oliver had functional deficiencies such that he did not have the capacity to make decisions.

The Court is fully convinced that on May 7, 2013, Dr. Podraza concluded that Mr.

Oliver had regained the capacity to manage his person, and it was reasonable for the

professional staff at EMMC to interpret Dr. Podraza's findings as such.

Dr. Nelson's testimony supports this conclusion. Dr. Nelson, a clinical

neuropsychologist and well-qualified expert witness, opined that Dr. Podraza "definitely"

met the standard of care in reaching the opinion that Mr. Oliver had the capacity to manage

his person. Dr. Nelson based his opinion on the·fact that Dr. Podraza utilized acceptable

standardized tests, reviewed pertinent medical records, considered collateral sources of

information and made careful observations of Mr. Oliver. Dr. Nelson opined that the in­

person interview with Mr. Oliver played a critical role in Dr. Podraza's evaluation, and was

the most important of the four factors.

14

In addition to opining that Dr. Podraza met the standard of care in conducting the

neuropsychological evaluation of Mr. Oliver, Dr. Nelson also opined that Mr. Oliver had

intact capacity to make decisions and manage his person on May 7, 2013, and continuing

through discharge. In reaching this conclusion, among other things, Dr. Nelson found Dr.

Podraza's description of Mr. Oliver's comportment "compelling"; found that Mr. Oliver was

well spoken and logical in his conversation; found that Mr. Oliver displayed logical and

goal-oriented behavior; and found that, despite some deficits, the test results "were not

even close" to questioning Mr. Oliver's capacity. Dr. Nelson opined that aspects of Mr.

Oliver's executive functions were well displayed in his comportment during the time he

spent with Dr. Podraza. Dr. Nelson opined that Mr·. Oliver's plans with respect to stopping

his drinking and fixing up his home were reasonable responses, and whether or not the

plans were likely was not pertinent to the capacity determination.

Dr. Nelson also testified that the results of the tests Dr. Podraza administered to Mr.

Oliver merited ful'ther explanation due to the way in which the tests were grouped for

reporting. In particular, the test results for immediate memory were impaired. However,

that score had two components: 1) remembering a list of words, and 2) remembering a

story. Mr. Oliver scored poorly on remembering the list of words, but did well on

remembering the story. Remembering the story clearly captures a better assessment of Mr.

Oliver's abilities with respect day-to-day functioning than remembering the list of words,

and effective strategies were available to remember lists (writing them down). With

respect to another composite score, Mr. Oliver was impaired on verbal fluency, but did well

on naming objects. The ability to name objects was a critical factor in Dr. Nelson opining

that Mr. Oliver did not have dementia.

15

Dr. Fromson, a psychiatrist with a specialty in addiction psychiatry and another

well-qualified expert witness, analyzed whether Mr. Oliver had capacity in connection with

forming his opinion that Mr. Oliver was properly discharged from the hospital. Dr. Fromson

was satisfied that by the time of his discharge, Mr. Oliver's hepatic encephalopathy had

been dramatically reversed. Dr. Fromson concluded that Mr. Oliver had sufficient decisional

capacity for discharge In that Mr. Oliver could appreciate information, delineate choices

and the ramifications of those choices. Dr. From son testified that in the context of

discharges, capacity determinations generally only involve a discussion between the

discharging professional and the patient1 and do not ordinarily involve neuropsychological

testing. Dr. Fromson further testified that the fact EMMC conducted neuropsychological

testing demonstrated EMMC went "above and beyond" in making the capacity decision.

Dr. Voss, a psychiatrist and another well-qualified expert witness, suggested that Mr.

Oliver lacked capacity in that he opined Mr. Oliver had "serious impairments in insight and

judgment", as well as memory problems. These issues, he explained, caused it to be unsafe

to discharge Mr. Oliver to take care of himself because he could not appreciate risks. Dr.

Voss based this opinion on, among other things, Mr. Oliver's presentation early in the

hospitalization, incidents in the 1:1 notes, the dementia diagnosis, and what Dr. Voss

perceived to be Mr. Oliver failing to recognize his problem with alcohol. Yet, as Dr. Voss

acknowledged, having impairments is not the same as Jacking capacity.

Dr. Voss highlighted that Mr. Oliver told Dr. Podraza that all of his problems were

due to the cold weather as an example of Mr. Oliver lacking insight. In fact, Mr. Oliver's

heating system was a reality-based problem that needed to be addressed. During the same

interview, Mr. Oliver also acknowledged his problems with alcohol and his plan to stop

16

drinking. While Mr. Oliver's characterization of all his problems being the result of cold

weather was broad, he acknowledged both a drinking problem and a problem with his

heating system during the same interview.

When asked whether Mr. Oliver should have been kept involuntarily, Dr. Voss did

not answer in the affirmative. Instead he indicated that he would have tried to persuade

Mr. Oliver to stay until an alternative could have been found. When Dr. Voss asked himself

the rhetorical question whether he would have signed a "blue-paper", he did not say "yes",

instead he testified he would have tried to work cooperatively with Mr. Oliver and the

family. Additionally, Dr. Voss testified that sending Mr. Oliver to a locked unit would not

have been successful because they (the locked unit) would have had to let him go (or he

would have run away), suggesting that Dr. Voss agreed that Mr. Oliver had the capacity to

make his own decisions and the next facility would have had to respect his wishes. Dr. Voss

agreed that the "bar is pretty high to take away [someone's] autonomy".

The evidence also concerned Mr. Oliver's capacity to make good judgments. The

Court is satisfied that a finding of capacity does not require that the person will make good

judgments. People with capacity make bad decisions everyday, and one cannot look

backward from a bad decision to determine a lack of capacity at the time the decision was

made. In making a capacity determination, an examiner looks to the process of decision­

making, not whether a decision may be good or bad - in the eyes of the examiner. The

capacity determination is neutral in value-judgment.

The condition of the home to which Mr. Oliver desired to return is not important to

the determination of whether Mr. Oliver had capacity to decide to return to his home. As

noted by Dr. Nelson, many homeless people have capacity to make decisions for

17

themselves, and they are released from the hospital to a life on the streets without having

any home to which to return. Mr. Oliver's situation was better than having no shelter at all.

While a patient with alcoholism must be asked the questions of whether he intends

to stop drinking and whether he will accept treatment, the answers are not critical to the

capacity determination. Several witnesses were questioned about the likelihood that Mr.

Oliver would return to drinking upon his release. First, one cannot judge someone's current

capacity on what the examiner thinks the person may do in the future. Additional!y, the

Court accepts that medical professionals cannot discount the possibility that someone in

fact intends to quit drinking and that some people will be successful in doing so.

Alternatively, if Mr. Oliver expressed an intention to stop drinking when he bad no

intention to do so, his statement would be highly corroborative of Mr. Oliver having the

capacity to engage in manipulation, a skill requiring a substantial amount of cognitive

ability. Thus, whether or not Mr. Oliver actually intended to stop drinking and the

likelihood that he would return to drinking is not probative of his capacity to make his own

decisions at the times relevant to this case.

A further issue presented by the evidence is the impact of a possible diagnosis of

dementia. The parties dispute whether Mr. Oliver had dementia in May of 2013. The

discharge summary recited a diagnosis of "probable alcohol-induced dementia". Drs.

Podraza, Nelson and Frnmson all concluded that Mr. Oliver did not have dementia. The

admission diagnosis listed acute or chronic hepatic encephalopathy, and did not list

dementia at all. On March 23, 2013, Dr. Singer wrote "rule out underlying alcohol

dementia", but noted that he doubted ETOH dementia. On March 26, 2013, Dr. Redding

listed alcoholic dementia in his note, although it appears too early in Mr. Oliver's

18

hospitalization to actually make this diagnosis. Thereafter, it appears that the dementia

diagnosis was at times carried forward by some providers.

The examination by Dr. Podraza on May 7, 2013, in combination with other factors

in this case, causes the Court to seriously question whether Mr. Oliver had dementia. Mr.

Oliver did well on the long-term memory /delayed recall test, his ability to name objects

was fine, and his orientation was appropriate. However, whether or not Mr. Oliver had

"probable alcohol-induced dementia" is not particularly helpful in determining whether Mr.

Oliver had the capacity to make his own decisions at the time of discharge. The label of

dementia does not define the range of capabilities people with dementia may have. Even

Dr. Voss, Plaintiffs' expert witness, testified that a person with alcohol-induced dementia

can be discharged if the person has demonstrated capabilities.

Overall, the medical records reflect that when Mr. Oliver entered the hospital he was

in delirium, unable to steadily walk and sometimes using a walker, unable to effectively

communicate, was at least periodically incontinent, and was not attending to his AD Ls.

Over time, Mr. Oliver went from being partially disoriented to being fully oriented and from

slurring and mumbling words to engaging in normal conversation. He vastly improved

physically. During his hospitalization, Mr. Oliver progressed to eating well and sleeping

well. His medications were decreased. Mr. Oliver began an exercise program, doing

multiple laps around the hospital corridor counting his laps. His ability and willingness to

independently attend to his hygiene needs vastly improved. Over time, Mr. Oliver began

playing cards alone and with his 1:1 worlcers 2 ; he watched TV (including the Red Sox, an

apparent pre-hospitalization interest); he gave answers to the questions on the "Wheel of

2 In fact, the April 7, 2013 Nurse's Note recites that Mr. Oliver was "learning" a card game.

19

Fortune" television show; he did word search games; he read; he used the "Uncle Henry's"

publication (a buying and selling publication) to help a nurse tech and others locate items

they were looking to purchase (such as a play set, which he also helped arrange for

delivery). Mr. Oliver was also able to place telephone calls to the people of his choosing.

These activities all suggest that Mr. Oliver had regained mental functioning and support the

conclusions of Dr. Podraza, Mr. Cravens, Dr. Ntdson, and Dr. Fromson that Mr. Oliver had

capacity to manage his person.

The Court finds that Mr. Oliver improved over time, and that his behaviors and

condition earlier in his hospitalization and the opinions expressed earlier in his

hospitalization do not reflect his condition by early to mid-May 2013. Due to the marked

improvement to Mr. Oliver physically and mentally, the Court discounts those observations

made more remote in time to Mr. Oliver's discharge.

Basically, from the time of his admission to the time of his discharge, Mr. Oliver

articulated his desire to go home 3 . By April 11, 2013 and continuing, Mr. Oliver stated that

he could take care of himself. The Court is satisfied that by Apri I 11, 2013, Mr. Oliver

appreciated that others were concerned with whether or not he could care for himself. Mr.

Oliver articulated that he had taken care of himself for years and could do so again. On May

6, 2013, Mr. Oliver was asserting that EMMC had "no right" to keep him at the hospital. The

Court is satisfied that by May 6, 2013, Mr. Oliver was able to appropriately assert his desire

to go home and framed the desire in a manner that implicated his autonomy.

3 The Coul'l does not find Mr. Oliver's repeated requests to go home or attempting to leave during

the later part of his hospitalization either irrational or suggestive of a lack of capacity. If someone is

being kept against his will, it does not seem unreasonable for that person to attempt to leave

and/or to repeatedly demand release.

20

Mr. Cravens, a certified nurse practitioner, began caring for Mr. Oliver on May 13,

2013 when Dr. AI-Sawalha signed off. At that time, Mr. Cravens had been a hospitalist for

approximately 16 years. On May 13, 2013, Mr. Cravens found Mr. Oliver to be alert and

oriented x 3 and their conversation made sense. 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 could not be discharged at that

time due to "other issues" (legal).

Mr. Martin, the hospital's attorney, was consulted about the legality of discharging

Mr. Oliver once the hospital had both a recent neuropsychological report stating that Mr.

Oliver had capacity and knowledge that Mr. Oliver's children had been appointed as his

guardians. Mr. Martin initially stated that the hospital could not discharge Mr. Oliver

without the guardians' consent. However, after reviewing the actual "Limited

Guardianship" Order, Mr. Martin told hospital staff that they could legally discharge Mr.

Oliver.

Events which occurred 011 May 16, 2013 just before discharge corroborate the

finding that Mr. Oliver had capacity at that time. In particular, on May 15, 2016, Mr.

Woolley suggested that Mr. Oliver obtain financial information (the amount of his monthly

social security check and his bank account balance) to finish the paperwork to terminate

the Guardianship. Upon Mr. Woolley's arrival at the hospital on May 16, 2013, Mr. Oliver

had obtained the necessary information. Mr. Oliver's ability to understand that he needed

to report his monthly income and the balance of his bank account to Berry Woolley so that

the Termination of Guardianship paperwork could be completed, and to determine these

21

numbers, and to seek out Berry Woolley the next day to report these numbers, is strong

evidence that Mr. Oliver had regained capacity by May 15-16, 2013.

Mr. Cravens re-examined Mr. Oliver on May 16, 2013. Mr. Cravens again determined

that Mr. Oliver did not need hospital care. Mr. Cravens found that Mr. Oliver was not

agitated and showed no signs of dementia. While Mr. Oliver had some limitations on insight

and judgment, Mr. Cravens found that at the time of discharge Mr. Oliver had sufficienl

insight and judgment to manage his person. Based on his own assessment of Mr. Oliver, Dr.

Podraza's opinion that Mr. Oliver had regained capacity, Mr. Oliver's stated desire to be

discharged to home, and his understanding that Mr. Oliver could now legally be discharged,

Mr. Cravens discharged Mr. Oliver on May 16, 2013. Mr. Oliver was very happy to be

discharged . The Court finds Mr. Cravens took a common sense approach in making the

discharge decision and made a reasonable decision. The Court found Mr. Cravens'

testimony very credible.

Additionally, events occurring at the time of discharge are consistent with Mr. Oliver

having capacity on May 16, 2013. Mr. Oliver's choice to have his friend, Mr. Ayers, drive him

home from the hospital, rather than asking his daughter or former wife for a ride suggests

that Mr. Oliver appreciated that his daughter and former wife might attempt to disrupt his

discharge. Also, on May 16, 2013 after learning that Mr. Oliver was being discharged at

around 2:00 p.m., Ms. Oliver called and asked Mr. Oliver who was picking him up from the

hospital. Mr. Oliver responded Ever (Everet) and the phone hung up. About a half hour

later, Ms. Oliver called Mr. Oliver again and asked to speak to Ever, and Mr. Oliver declined

to allow Ms. Oliver to do so. Mr. Oliver's refusal to allow Ms. Oliver to speak to Ever

demonstrates his ability to understand and interrupt any plans Ms. Oliver may have had to

22

cause Ever not to give Mr. Oliver a ride home. This shows capacity. During the discharge

process, staff urged Mr. Oliver to not return to drinking. Mr. Ayers stated that if Mr. Oliver

was going to drink, Mr. Ayers would not transport him home. Mr. Oliver agreed not to

drink This statement by Mr. Oliver was either a reflection of what Mr. Oliver truly hoped to

do or was a comment motivated by his desire to leave the hospital. Either way, this

statement demonstrates an appreciation by Mr. Oliver of the circumstances in which he

found himself.

Finally, Mr. Oliver's conduct immediately following his release from the hospital is

consistent with the determination that he had capacity at the time of his release. Mr. Ayer,

his friend and driver, stopped at Wal-Mart on the way from EMMC to Mr. Oliver's home. Mr.

Oliver was able to go into the store, identify and find what he wanted, and then purchase

the items. Mr. Ayer clearly was not with Mr. Oliver during critical times during the

shopping stop as Mr. Ayer did not know what Mr. Oliver had purchased. Further, on the

ride home, Mr. Ayers stopped at the Town Office to register his motorcycle. While there,

Mr. Oliver asked the Town Clerk about the status of his real estate taxes. This inquiry was

appropriate and demonstrated an ability by Mr. Oliver to consider his living situation and

make appropriate inquiries.

Moreover, when he returned home, Mr. Oliver crawled through the basement

window to gain entrance into his home. He found his way into his home, and up onto the

main living floor. Again, Mr. Oliver was able to identify the problem (not able to get into his

home through the locked door), to consider alternatives to enter his home, and then to

execute a successful plan to enter his home. According to Mr. Ayer, Mr. Oliver strategically

blocked Mr. Ayer's entrance into the Oliver home, and Mr. Ayer left. An hour or two later,

23

Ml'. Oliver called Mr. Ayer and asked him to deliver some matches. Mr. Ayer delivered the

matches and Mr. Oliver took the matches from Mr. Ayer thrnugh a window. Again, Mr.

Oliver was able to identify a problem (the need for matches to start his woodstove) and

execute a reasonable and successful plan to acquire the matches.

Unfortunately, Mr. Oliver began drinking again very soon after he returned to his

home. Depending on how much a person has to drink, that person's capacity may diminish.

And, when someone drinks heavily, the person's judgment can become impaired.

The Court has fully considered Plaintiffs' arguments that Mr. Oliver's behaviors and

condition at the time of his admission and thereafter suggest that Mr. Oliver Jacked capacity

on May 16, 2013. The Court has also fully considered Plaintiffs' arguments that the

opinions of several people that Mr. Oliver lacked capacity at the time of his admission and

for some time thereafter, including those of Ms. Kreamer and Ms. Manocchio, suggest that

Mr. Oliver lacked capacity on May 16, 2013. The Court has also considered Dr. Redding's

opinion made on April 1, 2013 that Mr. Oliver's prognosis was "probably poor for recovery

of appropriate insights necessary for self care". There is absolutely no question that Mr.

Oliver was in very rough shape physically and mentally at the time of his admission.

However, the Court specifically finds that Mr. Oliver's condition - physically and mentally­

significantly improved over the course of his hospitalization. Therefore, the Court discounts

the observations and opinions made earlier in Mr. Oliver's hospital stay.

The Court has particularly reflected on those incidents highlighted by the Plaintiffs

closer in time to the discharge in analyzing the capacity issue. These issues included,

among other things, Mr. Oliver climbing on a window, making requests for return of

bottles, urinating outside, not following directions, and the question about the identity of

24

his ex-wife. Mr. Olivet was allowed to go outside with his 1:1 and after walking quickly

toward some fencing urinated "beside building". There is simply insufficient context in the

1:1 note to give much weight to this consideration. Similarly, the Court considers, but does

not give much weight to the suggestion that Mr. Oliver was climbing on a window because

the context of the act is unknown. The Court does not find Mr. Oliver's request that

someone return bottles for him to be troubling. In fact, the Court finds Mr. Oliver's

collecting bottles while he was in the hospital to be a reasonable effort by him to secure

some spending money and is some evidence of an intact thought process. Additionally, the

Court accepts that Mr. Oliver became quite bored in the hospital and some of the behavioral

issues cited by the Plaintiffs are attributable to his frustration and/or were efforts to leave

when being kept against his will.

The Court has given great consideration to the question about Mr. Oliver's

recognition or non-recognition of his ex-wife on May 16, 2013. This incident is by far the

incident that the Court finds deserves the most analysis. The 1:1 note states: "Randy's ex­

wife at desk. Randy asks if she (the women (sic) who had a change in hair color) is his ex­

wife. The women (sic) said no and chuckled ...". The note suggests that Mr. Oliver was

making a joke about seeing his ex-wife. Clearly, Mr. Oliver had some recognition of Ms.

Oliver as he at least wondered if she was his ex-wife and suggested that her hair color had

changed. The documented response by Ms. Oliver does not suggest that she was alarmed.

The note states that Ms. Oliver "chuckled". However, in her in-court testimony, Ms. Oliver

clearly expressed being very concerned by this comment by Mr. Oliver. Dr. Podraza

testified that people who are recovering from alcohol abuse have mental "glitches". Dr.

Fromson testified that as the brain recovers one expects that episodes of inappropriate

25

behaviors may occur. The Court considers the evidence with respect to Mr. Oliver's

interaction with his ex-wife on May 16, 2013, along with all the other evidence in this case.

The Court has also considered Barry Woolley's interaction with the Ombudsman's

office on May 7, 2013. Plaintiffs' argue that Mr. Woolley told the Ombudsman that Mr.

Oliver likely would not regain capacity and that he needed a facility to keep him from going

back to the community to start drinking and becoming unsafe again, and the Court is

satisfied that Mr. Woolley made statements similar to this. The Court completely

understands the family's discomfort with one hospital employee making these types of

statements in the morning and another hospital employee determining in the afternoon

that Mr. Oliver had regained capacity. However, from a more detached viewpoint, Mr.

Woolley was advocating in the morning trying to secure a bed for Mr. Oliver as that was the

plan at that point ln time. The assessment of EMMC up until the time Dr. Podraza

completed his second evaluation was that Mr. Oliver did not have capacity. As a social

worker, Mr. Woolley was required to accept that Mr. Oliver lacked capacity - until that

assessment changed.

Plaintiffs also argued that Mr. Oliver did not know why he was in the hospital and

th is demonstrated a lack of insight. The context of this "confusion" is unknown. Moreover,

the suggestion that Mr. Oliver did not know why he was in the hospital must be put in

context with what is known. By mid-April there was no medical need for Mr. Oliver to be in

the hospital because he had no acute medical needs, and therefore statements by Mr. Oliver

that he did not know why he was still being kept at the hospital could, depending on the

context, be interpreted as astute. In fact, on April 17, 2013, Mr. Oliver articulated that the

26

hospital was not doing anything for him, which was accurate from an acute medical point of

view. The Court considers this evidence with all the other evidence in this case.

Mr. Ayer testified that on the ride home from the hospital Mr. Oliver vacillated

between promising not to drink and wanting to get beer. Mr. Ayer told Mr. Oliver that if he

was going to drink Mr. Ayer would return him to the hospital, to which Mr. Oliver

responded that he would not drink. Mr. Oliver's vacillation has many explanations:

confusion by Mr. Oliver, a desire to test Mr. Ayer's resolve not to help him buy alcohol,

and/or a desire by Mr. Oliver to really try to quit drinking. The Court considers Mr. Ayer's

testimony on this issue along with all of the other evidence in the case.

Plaintiffs also suggest that a voice message from Caris Miller in mid-April, 2013

suggesting that Mr. Oliver's bed was costing $1,500.00 per day and that the family needed

to do something to move Mr. Oliver out of the hospital supports their theory that EMMC

acted inappropriately in discharging Mr. Olivet· on May 16, 2013. First, Ms. Miller was not

involved in Mr. Oliver's discharge about a month later on May 16, 2013, and the Court does

not find that EMMC was improperly motivated by financial concerns in discharging Mr.

Oliver. By May 16, 2013, EMMC and the family were in a dilemma: the professionals opined

that Mr. Oliver had regained his capacity and they worried they were holding him against

his will, and yet the guardians wanted Mr. Oliver to be discharged to a locked facility.

In addition, Plaintiffs argued that EMMC engaged in a plan (conspiracy) to

inappropriately discharge Mr. Oliver from EMMC because of funding issues, and that the

factors taken together support this conspiracy theory. There is no doubt that having Dr.

Podraza reevaluate Mr. Oliver on the very day of the guardianship proceeding and then

having the hospital change its legal position over the course of a few days, in combination

27

with other individual factors, provided a reason for the Plaintiffs to be skeptical. However,

after a full review of all the facts and circumstances, the Court does not accept that EMMC

engaged in any inappropriate plan or conspiracy to inappropriately discharge Mr. Oliver.

EMMC and Mr. Oliver's family had different ideas about the discharge of Mr. Oliver, but the

Court docs not accept that EMMC singled out Mr. Oliver for inapprnpriate discharge or that

his discharge was inappropriately motivated.

After careful consideration of all the facts and circumstances in this matter, the

Court finds that, although he had some cognitive impairments, Mr. Oliver had "capacity" to

manage his person on May 16, 2013. The Court flnds the testimony of Mr. Cravens, Dr.

Podraza, Dr. Fromson and Dr. Nelson compelling. Dr. Al- Sawalha was sufficiently struck by

Mr. Oliver's mentation to order a repeat neuropsychological evaluation. After a repeat

evaluation and in-person interview of Mr. Oliver, Dr. Podraza found that Mr. Oliver had the

capacity to manage his person. Mr. Cravens examined Mr. Oliver on both May 13 and May

16, 2013. Mr. Cravens found, based on his own evaluation and relying on the Dr. Podraza

evaluation, that Mr. Oliver had the capacity to make his own decisions and manage his

person. Both Dr. Fromson and Dr. Nelson opined that Mr. Oliver had the capacity to make

his own decisions and manage himself on May 16, 2013. Dr. Fromson and Dr. Nelson held

this opinion even after considering many of the factors the Plaintiffs suggested

demonstrated that Mr. Oliver did not have such capacity. While the factors asserted by the

Plaintiffs may cause some pause on whether Mr. Oliver had capacity, the Court does not

find these factors, in light of all the other evidence in this case, to be persuasive.

28

B. Reasonable Discharge Plan

Having concluded that Mr. Oliver had "capacity" on May 16, 2013, the next issue is

whether or not EMMC's discharge plan for Mr. Oliver satisfied the standard of care.

There was no disagreement on the standard of care: EMMC was required to offer

Mr. Oliver a safe and reasonable discharge plan. There was also no disagreement that a

hospital or a family cannot force a person to engage in substance abuse counseling 4 •

Additionally, there was no disagreement that competent people can and do make poor

decisions, including drinking to excess and declining services. There was no disagreement

that Mr. Oliver had no medical need for hospitalization when he was discharged. Finally,

there was no disagreement that Mr. Oliver consistently and definitely expressed his desire

to be discharged to his home.

Dr. Voss testified that EMMC failed to meet the standard of care in discharging Mr.

Oliver because, in particular, it did not adequately account for Mr. Oliver's safcty.s At the

same time, Dr. Voss agreed that if Mr. Oliver were deemed to have had adequate capacity,

EMMC was required to release him. Dr. Voss further testified that ifMr. Olive,· were

deemed to have had adequate capacity, the discharge plan by EMMC was reasonable if

steps had been taken before he left to implement the plan. Dr. Frornson testified that the

4 The Oliver family had experienced this same roadblock prior to Mr. Oliver's 2013 hospitalization

when they had attempted to find a substance abuse program for Mr. Oliver. They had tried

programs as far away as California. The Olivers knew that a person would not be admitted into

substance abuse treatment programs, unless he were willing to accept the help.

5 At least some of Dr. Voss' opinions seemed to be premised on the assumption that Mr. Oliver did

not have adequate capacity and/or that he should not have been discharged without the guardians'

consent.

29

hospital was required to discharge Mr. Oliver, and that the discharge plan met the

applicable standard of care.

At first glance, it appeared there was disagreement between the experts on the

relevancy of whether or not it was likely that Mr. Oliver would return to drinking after

discharge. Dr. Voss opined that it was entirely reasonable to conclude it was highly likely

Mr. Oliver would return to drinking after discharge and that this factor had to be

considered in the discharge plan. Dr. Voss further suggested that EMMC accepted Mr.

Oliver's statements he would not continue to drink, and this was negligent, but the Court

does not find that EMMC "accepted" these statements in that the discharge plan offered Mr.

Oliver substance abuse and other services. Dr. Fromson opined that whether or not Mr.

Oliver would return to drinking was not a reason to not discharge Mr. Oliver on May 16 1

2013. Dr. Fromson testified that a patient's statement he will refrain from alcohol must be

taken at face value because the hospital never knows when the "mirncle of recovery" will

happen. Dr. Fromson also opined that even if Mr. Oliver had no intention to refrain from

drinking, discharge was still appropriate because competent people have the right to make

their own decisions about drinking. After analysis, it does not appear to the Court that

there is much substantive disagreement between Dr. Voss and Dr. Fromson on this factor.

Dr. Voss did not opine that a competent person can be denied discharge because it is likely

he will return to drinking and Dr. Fromson did not opine that the discharge plan should

ignore the fact a person has a drinking issue. The Court finds that the hospital could not

keep Mr. Oliver against his wishes because he might/was likely to return to drinking6 .

6 Taking away the liberty of alcoholics was abolished in 1973. See 22 M.R.S. §§ 1353, repealed by

P.L. 1973, ch. 566 § 4 (effective Jan. 1, 1974) and P.L. 1973, ch. 582, § 4 (effective Jan. 1, 1974). In

2013, the criteria for involuntarily commitment to a facility required that the person had a mental

30

By the time of discharge, Mr. Oliver had admitted to EMMC staff that he was an

alcoholic. Mr. Oliver told Ms. Miller about his drinking and told her he would "try'' to stop.

Mr. Oliver admitted to Dr. Podraza that he was an alcoholic and his plan was to stop

drinking. Mr. Oliver's change from denying a problem with alcohol early in his

hospitalization to admitting he was an alcoholic is very significant progress and

demonstrates some insight on this issue.

Dr. Fromson further testified that compliance with the applicable standard of care

does not prevent people with substance abuse disorders from regularly being discharged

from hospitals, and that hospitals are not required to investigate or address the home

environment to which a person is returning (other than in Massachusetts for abusive

situations) . The Court was struck by Dr. Fromson's testimony that homeless people are

discharged from hospitals everyday. There is obviously no good plan in place for their

housing, safety or nutrition. Mr. Oliver was clearly in a much better position than people

without shelter or family support. The Court is fully satisfied that the standard of care does

not require that the hospital refuse discharge due to the safety of the patient's home or the

person who the patient choses for transportation.

In the course of his evaluation, Dr. Podraza discussed with Mr. Oliver what might be

helpful to him upon his release from the hospital. Mr. Oliver rejected attending substance

abuse counseling and/or attending AA. However, Mr. Oliver accepted Dr. Podraza's

suggestions that he (Mr. Oliver) attend the Pain Clinic and that he engage with a community

case manager, and Dr. Podraza made those recommendations. Dr. Podraza sought and

illness and because of the mental illness the person posed a likelihood of serious harm to himself or

others. See MRS 34-8 M.R.S. § 3863 (also known as blue-papering).

31

i-eceived "buy-in" from Mr. Oliver on these two recommendations. While Dr. Voss was

critical of EMMC not exploring options Mr. Oliver would accept, the Court is satisfied that

case management, an option specifically mentioned by Or. Voss, was explored by EMMC

and Mr. Oliver accepted this option and it was part of the discharge plan.

There were four (4) primary components of the discharge plan: 1) an appointment

with the Pain Clinic; 2) a recommendation that Mr. Oliver attend substance abuse

treatment; 3) a referral for community case management; and 4) an appointment for

follow-up with his PCP. Additionally, Mr. Oliver's medications were outlined for him. EMMC

also notified DHHS Adult Protective Services that Mr. Oliver was being discharged 7. As

noted, the Pain Clinic and community case management recommendations made by Dr.

Podraza were incorporated into the discharge plan. The referral to the Pain Clinic was

designed to help address Mr. Oliver's chronic back pain and would have also been another

opportunity for Mr. Oliver to have been offered substance abuse treatment. The case

management referral was to "help him achieve his goals of sobriety and a better living

situation". An appointment for the follow-up with his PCP was scheduled for May 20, 2013

at 2:30 p.m., four days after discharge, and the PCP also agreed to send Mr. Oliver a

reminder notice. An appointment was made with the Pain Clinic for Mr. Oliver. Mr. Oliver

was given the name and telephone number for the community case management services,

both verbally and in the written discharge instructions. Mr. Woolley gave Ms. Jernigan

7

A referral had been made earlier by EMMC to DIIHS Adult Protective Services. The purpose of

notifying DHHS of the discharge was two-fold: 1) because EMMC was concerned that the guardians

were insisting that Mr. Oliver be locked away after he had regained his capacity, and EMMC

believed Mr. Oliver needed an advocate because the guardians were not honoring Mr. Oliver's

regained capacity, and 2) for monitoring in case Mr. Oliver started drinking again.

32

information about the PCP appointment, but Ms. Jernigan hung up before the remainder of

the information could be given to her.

By the time of discharge, Mr. Oliver was communicating effectively, eating well,

sleeping well, walking very well and a great deal, attending to his hygiene, using the

bathroom facilities, aware of his medications, and dressing himself. lf Mr. Oliver did not

resume heavy drinking, there is no reason to believe he could not have continued to

perform these functions. Prior to his hospitalization, Mr. Oliver had lived alone for several

years and taken his prescribed medication (including methadone). Mr. Oliver's condition

certainly did not regress during his hospitalization. Mr. Cravens opined that Mr. Oliver was

capable of taking his own medications, and this seems reasonable in that he had done so

prior to his hospitalization. Upon discharge, Mr. Oliver did not have any mobility

limitations, and he did not need physical therapy, occupational therapy or any skilled

nursing (no IVs or wound care).

Mr. Oliver's nurse spent about 15 minutes reviewing the discharge paperwork with

him. He indicated to his nurse, Ms. Kinjo, that he understood the instructions.

Dr. Frornson opined that EMMC met and exceeded the standard of care in

discharging Mr. Oliver on May 16, 2013 . Dr. Fromson based this opinion on the fact that Mr.

Oliver was medically stable; he had been offered substance abuse treatment; he had

received appropriate referrals to follow-up with his PCP, the Pain Clinic, and case

management; and hospital staff had urged him to attend peer support groups such as AA.

Dr. Fromson further testified that the "lynchpin" with respect to the referrals is whether or

not Mr. Oliver was interested in the services.

33

Dr. Voss was critical of EMMC not making a specific appointment for Mr. Oliver for

case management services. Mr. Woolley located a particular case management provider in

Mr. Oliver's community and gave Mr. Oliver the information he needed to make an

appointment. Mr. Oliver's PCP was aware of the case management recommendation, and

Mr. Oliver had an appointment with his PCP 4 days after his discharge. The Court is

satisfied that the failure to make this one appointment, in light of the specific PCP

appointment, does not equate to a failure to meet the standard of care.

Dr. Voss also criticized the "abruptness" of Mr. Oliver's discharge and what he

described as a Jack of effort by EMMC to persuade Mr. Oliver to accept services and/or

work with the family to find placement during the hospitalization.

The abruptness of the discharge, after Mr. Oliver had been in the hospital about 7

weeks, warrants analysis. Had the guardians had more notice that Mr. Oliver was going to

be discharged they may have been able to persuade Mr. Oliver to change his mind about

going home, or may have persuaded him to voluntarily enter rehabilitation, or may have

been able to make repairs to the house or taken some other steps. On or before April 15,

2013, the guardians were aware that EMMC wanted to discharge Mr. Oliver. Between April

15, 2013 and May 16, 2013, the children/guardians were insisting on discharge to a locked

facility and were not interested in a discharge plan that involved any other type of

discharges. On May 10, 2013, a "Non-Covered Continued Stay" notice was issued. This

Notice informed Mr. Oliver/the guardians that EMMC believed that Medicare would not pay

for continued hospitalization because "your medical condition no longer requires acute

8 Prior to April 15, 2013, an EMMC discharge planner attempted to find a locked placement for Mr.

Oliver, but once he significantly improved, she stopped those efforts believing they were futile. Thls

is actually consistent with Dr. Voss' testimony that the next facility would not have been able to

keep Mr. Oliver.

34

care" and that Mr. Oliver/the guardians would be responsible for the costs. It appears they

filed an appeal, which was denied, and Mr. Woolley informed them of the denial on May 13,

2013. Therefore, the guardians were well aware that EMMC was more than ready to

discharge Mr. Oliver by May 10, 2013 (and earlier). However, as of May 16, 2013 before 1

pm (other than a voicemail message), they had not been specifically told anything about

discharge other than that Mr. Oliver would not be 1·eleased without their consent and that

EMMC would get a capacity re-evaluation. It was after the guardian(s) withdrew their

request for a re-evaluation that EMMC moved forward with its legal analysis about

discharge.

On May 16, 2013, at approximately 11:30 a.m., Mr. Cravens made the decision to

discharge Mr. Oliver. At 1:00 p.m., Ms. Jernigan was told that Mr. Olivet· would be released

at 2:00 p.m. (although a voice message had been left earlier). 9 Even 2 V2 hours would have

been more time to prepare than the one hour they were given. However, the question in

this case is not whether the hospital was considerate or kind to Mr. Oliver's

children/guardians, but rather whether the hospital was negligent. While the Court is

mindful of the lack of much concrete notice to Mr. Oliver's guardians, in the final analysis,

the Court is nonetheless satisfied that EMMC's duty was to release Mr. Oliver as soon as he

was deemed to have capacity and demanded release. Further, EMMC complied with 18-A

M.R.S. 5-807(c).

The Court is satisfied that EMMC worked with Mr. O!iver during his hospitalization

to encourage him to accept substance abuse treatment. In fact, some progress was made in

that prior to discharge Mr. Oliver admitted his problems with alcohol and expressed a

9 Mr. Oliver was actually released at approximately 2:50 p.rn .

35

desire to stop drinking. The Court is further satisfied that the discharge plan factored in the

likelihood that Mr. Oliver would return to drinking by talking with Mr. Oliver and strongly

urging him not to drink, to attend AA, and by offering him substance abuse counseling.

During the hospitalization, Ms. Miller spoke with Mr. Oliver about not drinking. Dr. Podraza

specifically encouraged Mr. Oliver to accept substance abuse services, and the referral to

the Pain Clinic was another avenue for the issue of substance abuse treat1nent to be

addressed with Mr. 01iver. Prior to leaving the hospital, Mr. Oliver was encouraged by

many EMMC personnel not to return to drinking. EMMC personnel warned him that

returning to drinking would have grim consequences. Mr. Woolley discussed with Mr. Ayer

not making it easy for Mr. Oliver to gel alcohol. Mr. Oliver was repeatedly urged to agree to

alcohol counseling and to attend AA, but he refused counseling and he indicated that he did

not intend to attend AA.

The Court is further satisfied that EMMC adequately attempted to work with Mr.

Oliver's family on placement issues. Throughout the hospitalization Mr. Oliver was

consistent and adamant that he be discharged home. Meanwhile, the family was adamant

that Mr. Oliver not be discharged other than to a locked facility, including after being told

that Mr. Oliver had regained capacity. It is clear to the Court that this insistence by the

family was based on love for Mr. Oliver and a properly motivated hope that he would

address his alcoholism. However, once Mr. Oliver regained capacity, he had the right to

address or not address his alcoholism, as he saw fit. As early as April 15, 2013, EMMC

through Coris Miller was urging the family to find a placement for Mr. Oliver that was

suitable to them. Ms. Miller's responsibilities for Mr. Oliver's case were eventually

transferred to Mr. Woolley, who had been participating in Mr. Oliver's case all along as

36

well. 10 After Mr. Oliver's daughter was informed by Mr. Woolley that EMMC had

determined that Mr. Oliver had regained his capacity, Ms. Jernigan remained adamant that

Mr. Oliver be forced into a secure facility. Mr. Woolley asked the family to participate in a

rneet[ng to discuss d[scharge. At first, Mr. Woolley's telephone calls in this regard were not

returned, and then Ms. Jernigan indicated that the meeting could not occur during the

workday and in any event she would not consent to any discharge other than to a locked

facility. Mr. Woolley convincingly testified that he made multiple attempts to draw the

guardian(s) into productive discussions about the discharge of Mr. Oliver, but ran into a

"brick wall". In this same time frame, the guardians initially asked for an independent

neuropsychological evaluation from an evaluator not connected with EMMC. When given

names outside the EMMC system, the guardian(s) stated they wanted to think about it.

Thereafter, over the period of a few days, they did not respond to requests by EMMC to

move the process along. They ultimately informed EMMC on or about May 14, 2013 that

they did not want an additional neuropsychological examination.

Unfortunately, within a few hours of his discharge, Mr. Oliver returned to drinking.

When his daughter and ex-wife visited him at 5:00 p.m., he had a beer in his hand and was

putting wood in his woodstove. The second time they visited him, at about 8:00 p.m., Mr.

Oliver was "definitely" intoxicated. He had continued his efforts to light a fire and there was

some "glow" in the woodstove while his daughter and ex-wife were present the second

time. Within a couple of hours of them leaving, Mr. Oliver's home was engulfed in flames.

10 Ms. Miller asked to be removed from Mr. Oliver's case because of what she perceived to be a lack

of cooperation from Mr. Oliver's family and the family perceiving her as harassing them, and

because she also felt that Mr. Oliver was being "imprisoned" by the hospital. The content and tone

of Ms. Mlller's April 15, 2013 voice mail to Ms. Jernigan seems to reflect her frustration with the

situation.

37

Because the Court has found that Mr. Oliver had capacity to make his own decisions

and because he clearly expressed his desire to be released to his home, the Court does not

find that the safety of Mr. Oliver's home or the background of the person who Mr. Oliver

chose to transport him home are factors that EMMC was bound to investigate or with

respect to which EMMC was required to take action, nor could EMMC refuse to discharge

Mr. Oliver because he might/was likely to resume drinking. People who have capacity to

make their own decisions may be released to the place of their choosing and may be

transported by a person of their choice. At the time of discharge, there was no reason that

Mr. Oliver could not manage himself as well as any other person with limited resources

living in rural Maine - until he started heavily drinking again. At that point, the guardians

would have to step in to monitor changes and assist him or remove him from the situation.

The Court concludes that it was appropriate for EMMC to discharge Mr. Olive!'. He

had no acute medical needs and he had sufficient capacity to manage his own affairs and it

was his choice where to go after discharge. The Court finds that the discharge plan for Mr.

Oliver was reasonable, and that the discharge met the applicable standard of care.

Therefore, the Court finds that Plaintiffs failed to prove by a preponderance of the evidence

that EMMC was negligent.

Clearly what Mr. Oliver needed most to address his disease was alcohol treatment

services. However, Mr. Oliver repeatedly declined those services. All the witnesses agreed

that alcohol treatment programs are not available to people who are not ready to address

their issues with alcohol. Therefore, there was really no alcohol treatment services that

38

EMMC, or his family, or society as a whole could provide to Mr. Oliver at that point in

time. 11

II. Infliction of Emotional Distress

In ruling on Plaintiffs' Motion to Amend their Complaint to add Counts IV, V, VI, and

Vil, the Court determined that the Wrongful Death Statute precluded most of their claims

for emotional distress, but permitted Plaintiffs to proceed with their claims to the extent

they were not related to Mr. Oliver's discharge. See Order dated August 12, 2015. After

hearing the evidence, the Court finds that Plaintiffs failed to establish claims for Infliction of

Emotional Distress.

CONCLUSION

The Entry is: Judgment for the Defendant on Counts l, 11, III, IV, V, and VII 12 . The

Clerk shall enter this Judgment upon the docket by reference.

Dated: August 5, 2016

J)~e wreJ"ed (M thi. l )oJtt.'t '. ~ \ 1? t I b

/t::.Justice

Matne Superior Court

11 While the Court does not reach the question of damages, it was clear to the Court that Nicole

Jernigan and Randy Oliver, fr. both enjoyed a strong relationship with their father. They were able,

to the great credit of their mother, to accept Mr. Oliver's disease and love their father and receive

love from him in return.

12 The motion to amend the Complaint for a third time, resulting in the Second Amended Complaint

(Revised), was denied as to VI, so that claim is not pending.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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