Conviction stands in group home death

Turning to civil law for a proximate cause standard, a circuit judge has upheld a jury’s conviction of a group home operator for the death from neglect of a disabled burn victim.

Richard C. Wagoner Jr. of Martinsville ordered that a resident with obvious severe burns should be treated at his group home rather than taken to a hospital, according to allegations in the case. The resident, Joseph Tuggle, died at the home 10 days later of complications from his burns.

A jury convicted Wagoner on the felony neglect charge after a four-day trial in May, recommending a five-year prison sentence. Judge G. Carter Greer upheld the jury’s conviction of Wagoner, but suspended the entire five-year prison sentence, saying the court has to “balance and temper justice with mercy,” according to a published account.

Upholding the conviction in Commonwealth v. Wagoner (VLW 012-8-159), Greer determined the jury’s verdict was supported by medical testimony that Tuggle would have had a 25-percent chance of survival if he had been promptly treated at a burn center.

A lawyer for Wagoner said an appeal will be sought.

Tuggle, 57, was described as “incapacitated” and suffering from Parkinson’s disease. He lived in a group home operated by a company owned by Wagoner.

On Feb. 8, 2011, Tuggle was scalded by hot water while bathing at the home. The next day, a supervisor ordered a van to take Tuggle to a hospital. Informed of the transport, Wagoner said he first wanted to see Tuggle’s condition before he was taken to the hospital, according to Greer’s summary of the evidence.

Tuggle was brought back to the group home where Wagoner personally examined his burns. They were “shocking and extensive,” the judge wrote, citing testimony of a caregiver at the scene. “Well, I guess Social Services will investigate us,” Wagoner told a company officer, according to the judge’s opinion.

Wagoner decided that Tuggle would be treated at the group home and not taken to the hospital. He told staff to apply Neosporin to Tuggle’s wounds. Wagoner failed to report the incident to a state licensing agency within 24 hours, as required, and later minimized the condition in making a report.

Tuggle was found dead on Feb. 18. A pathologist described second- and third-degree burns on 30 percent of his body. The cause of death was sepsis and pneumonia secondary to burns.

According to medical testimony summarized by Greer, Tuggle’s condition would have qualified him for “automatic admission” to a burn unit. If he had received proper treatment, he would have had a 13- to 25-percent chance of survival, according to the judge’s summary of the testimony.

Tuggle’s death was investigated by both Martinsville police and the attorney general’s Health Care Fraud and Elder Abuse section. Wagoner was prosecuted by Assistant Attorney General Kevin C. Nunnally and Chief Prosecutor David W. Tooker of the attorney general’s office.

Defending Wagoner were James W. Haskins and James R. McGarry of Martinsville and David O. Williamson of Roanoke.
The jury convicted Wagoner after a four-day trial in May. “This kind of gruesome irresponsibility and depravity is despicable,” said Attorney General Ken Cuccinelli after the verdict.

Moving to set aside the verdict and acquit Wagoner, his lawyers argued the state’s case failed to prove both causation and awareness of risk by Wagoner.

Wagoner argued “uncontradicted evidence” showed he was “not aware that Tuggle would be at risk of further injury if he did not receive additional medical treatment.” Greer, however, found the evidence “more than adequate” to show Wagoner acted knowingly and willfully.

The judge cited testimony from a caregiver that, on the morning after the scalding incident, Tuggle had visible flesh injuries from the back of his head down to his shoulders and on his buttocks. From that description and other testimony, the jury could infer Wagoner knew Tuggle required emergency medical treatment at a hospital and nevertheless failed to provide that treatment in order to avoid an investigation, Greer wrote.

On the causation issue, Wagoner’s lawyers argued the commonwealth should have been required to prove Tuggle would have lived and not died if he had received different treatment for the burns. Greer found no Virginia appellate opinions directly on point.

Greer had instructed the jury that the commonwealth had to prove that Wagoner’s neglect resulted in Tuggle’s death, explaining that a proximate cause is one that, in natural and continuous sequence, results in death. “It is a cause without which the death would not have occurred,” the instructions read.

Since principles of proximate causation apply in both civil and criminal cases under Virginia law, Greer looked to the civil law in medical malpractice death cases for guidance.

The decisional standard in those cases is whether a defendant destroyed “a substantial possibility of survival,” Greer said. In such cases, the law does not require certainty that a patient would have lived absent negligent treatment, the judge found.

“In the court’s view, a twenty-five percent chance of survival represents a substantial possibility of survival,” Greer wrote, ruling the jury was entitled to find Wagoner’s conduct a proximate cause of Tuggle’s death.

“We disagree with Judge Greer’s interpretation,” Haskins said in an interview.

Haskins said case law, including a 2000 decision from the 4th U.S. Circuit Court of Appeals, indicates the “substantial possibility of survival” concept is equivalent to a “probability” of survival, a standard appropriate for civil cases but not for criminal actions.

He said the evidence failed to show that Wagoner’s actions, however they are viewed, could have been a cause “without which the death would not have occurred.”

The judge applied the correct standard, according to Robert W. Carter Jr. of Appomattox, a lawyer who handles nursing home malpractice cases. Carter was not involved in the Wagoner case.

The standard for criminal cases is “beyond a reasonable doubt,” but that standard is simply a “lens through which the jury views the quality of the evidence,” Carter said in an interview.

The “loss of chance” doctrine used in civil cases “makes perfect sense,” Carter wrote in an email. It eliminates the statistical death defense when bad conduct causes, contributes to or hastens real death, he said.

“In larger terms, it elevates the importance and value of the life being lived, especially for victims who are ill, elderly or otherwise in a fragile state of health,” Carter said. The doctrine, he added, makes a “no harm, no foul” defense less successful.

A spokesperson for Cuccinelli declined comment because the case is ongoing.

Tuggle’s injuries also led to a civil lawsuit against Wagoner’s business. The case was settled and dismissed, according to online court records. The amount of the settlement is subject to a confidentiality agreement, according to Phillip G. Gardner, who represented Tuggle’s estate.

Gardner said the settlement was based on a survival action, not on a wrongful death claim. Under Virginia law, a settlement of a claim for injuries not resulting in death would not require court approval.

Robert J. Kloeti of Richmond, who defended Wagoner’s company in the civil case, declined to comment. “It’s confidential,” he said.