People v. DeKorte

Fitzgerald, J.

Defendant was convicted by a jury of abuse of a vulnerable adult, second-degree, MCL 750.145n(2); MSA 28.342A(n)(2), and was sentenced to five years’ probation, with the condition that defendant serve one year in jail, consisting of four months’ imprisonment followed by sixty days on a *566tether, with the remaining six months suspended.1 Defendant appeals as of right. We reverse.

The victim in this case is a 340-pound schizophrenic woman who was a patient at Newport Center, a specialized adult foster care facility for chronically mentally ill adults. The victim was placed at the facility as a result of being found not guilty of an offense by reason of insanity in 1994. On July 12, 1995, at approximately 9:00 P.M., the victim jumped or fell off the roof of the facility2 and onto the cement parking lot. The victim thereafter complained of pain and paralysis, and a house coordinator at the facility contacted defendant, the victim’s primary case manager, to inform him of what had happened. Defendant, who was informed that the victim had indicated that she would get up off the ground if the staff would provide her with a cigarette, instructed the house coordinator to prompt the victim to get up if she was able and to advise him of any changes in the victim’s medical condition. After assisting the victim into the facility and evaluating her condition, the house coordinator informed defendant that the victim continued to complain of pain. Defendant, noting that an emergency room visit would cost approximately $1,500 and that a physician’s visit would cost approximately $50, advised the house coordinator to have the residential administrator arrange a physician’s appointment for the victim for the following day.

Approximately sixteen hours following the fall, the victim was transported to a hospital by ambulance. *567She was diagnosed with a fractured pelvis and left elbow and a dislocated hip and left elbow.

Defendant argues that the prosecution presented insufficient evidence to support defendant’s conviction of second-degree vulnerable adult abuse. This Court reviews sufficiency of the evidence claims by considering the evidence in the light most favorable to the prosecution and determining whether a rational trier of fact could have found that the essential elements of the charged crime were proved beyond a reasonable doubt. People v Head, 211 Mich App 205, 210; 535 NW2d 563 (1995).

MCL 750.145n(2); MSA 28.342A(n)(2), the second-degree vulnerable adult abuse statute, provides:

A caregiver or other person with authority over the vulnerable adult is guilty of vulnerable adult abuse in the second degree if the reckless act or reckless failure to act of the caregiver or other person with authority over the vulnerable adult causes serious physical harm or serious mental harm to a vulnerable adult, [emphasis added.]

To establish the crime of second-degree vulnerable adult abuse, the prosecutor must prove (1) that the defendant is a caregiver or other person with authority over the vulnerable adult, (2) that the victim is a vulnerable adult, (3) that the defendant engaged in a reckless act or reckless failure to act, and (4) that the reckless act or reckless failure to act caused serious physical harm or serious mental harm to a vulnerable adult.

The parties do not dispute that defendant, as the victim’s primary case manager, was a caregiver and that the victim was a vulnerable adult as defined under the vulnerable adult abuse statute. See MCL *568750.145m(c) and (u); MSA 28.342A(m)(c) and (u). Thus, the first and second elements of the offense are not at issue.

The third element of the offense requires proof that the defendant engaged in a reckless act or reckless failure to act. The statute defines a “reckless act or reckless failure to act” as “conduct that demonstrates a deliberate disregard for the likelihood that the natural tendency of the act or failure to act is to cause physical harm, serious physical harm, or serious mental harm.” MCL 750.145m(p); MSA 28.342A(m)(p). The statute defines serious physical harm as “physical injury that threatens the life of a vulnerable adult, that causes substantial bodily disfigurement, or that seriously impairs the functioning or well-being of the vulnerable adult.” MCL 750.145m(r); MSA 28.342A(m)(r).3

Here, there is no dispute that defendant was advised that the victim had fallen or jumped off the roof to the concrete below and that the victim was complaining of pain and paralysis following the fall. Douglas Segan, an emergency medicine physician, opined that when one is dealing with an injured person who is complaining of pain following a fall, the injured must be immobilized and medical help must be obtained. Moreover, Segan opined that a fall from a height of twelve to sixteen feet could possibly lead to a multitude of fractures and physical injuries. Segan further opined that a person complaining of *569pain and being semiconscious following such a fall could possibly have suffered life-threatening injuries.

Given this evidence, defendant’s failure to summon immediate medical attention demonstrated a deliberate disregard for the likelihood that the victim would suffer additional serious physical harm. Therefore, we conclude that the prosecution presented sufficient evidence to establish the “reckless act or reckless failure to act” element of second-degree vulnerable adult abuse.

The fourth element of the offense requires proof that defendant’s reckless act or reckless failure to act caused serious physical harm. As previously noted, “serious physical harm” is defined as “physical injury that threatens the life of a vulnerable adult, that causes substantial bodily disfigurement, or that seriously impairs the functioning or well-being of the vulnerable adult.” The prosecution’s theory was that the “threat of death” and “pain” constitute physical injuries.

Because the Legislature did not define the phrase “physical injury,” this Court must give those words their common, ordinary meanings. People v Fields, 448 Mich 58, 67; 528 NW2d 176 (1995). In ascertaining the meaning of words, this Court may refer to dictionaries for guidance. People v Wilson, 230 Mich App 590, 592; 585 NW2d 24 (1998). Random House Webster’s College Dictionary (1997), pp 672 & 983, defines the term “physical” as “of or pertaining to the body” and the term “injury” as “harm or damage done or sustained.” Clearly, the mere threat of death does not constitute a physical injury.

“Pain” is defined as “physical suffering typically from an injury or illness.” Random House Webster’s *570College Dictionary (1997), p 972. No published Michigan decision has addressed, in the context of the vulnerable adult abuse statute, whether evidence of pain is sufficient to satisfy the “physical injury” element. However, in the context of a claim for negligent infliction of emotional distress, which requires a plaintiff to establish that the emotional distress manifested itself in definite and objective physical injury, it has been held that a general claim of pain and suffering will not suffice. Parnell v Booth Newspapers, Inc, 572 F Supp 909, 917 (WD Mich, 1983). See also Stites v Sundstrand Heat Transfer, Inc, 660 F Supp 1516, 1526-1527 (WD Mich, 1987). In light oí Parnell, and given that pain is merely a “symptom” of an injury or illness, we conclude that pain alone does not constitute a “physical injury.”4

Although hypothetical testimony was presented regarding medical complications that could result from a fall similar to the one in the present case, absolutely no evidence was presented that the victim suffered a physical injury as the result of the delay in medical treatment. Orthopedic surgeon John Morgan, who saw the victim on July 13, 1995, was unable to say with any reasonable degree of medical certainty that the victim sustained any physical injury apart from the initial fall. Dr. Segan, who had never examined the victim, testified that he could not say with certainty that the movement of the victim had aggravated her physical injury. The prosecution did not present any evidence to contradict this medical testimony. In the absence of any evidence that *571defendant’s failure to summon immediate medical attention caused a physical injury to the victim, we conclude that the evidence is insufficient to support defendant’s conviction.

In light of our disposition of this issue, we need not address defendant’s claim of instructional error.

Reversed.

Doctoroff, J., concurred.

Defendant was released on bond pending appeal.

The victim fell from a height of approximately twelve to fourteen feet.

The prosecution does not contend on appeal that defendant’s allegedly reckless act or reckless failure to act caused serious mental harm.

Indeed, a medical expert testified that pain is generally a symptom of a physical injury rather than a physical injury itself.