People v. DeKorte

Corrigan, C.J.

(dissenting). I respectfully dissent. Unlike the majority, I would hold that the prosecution presented sufficient evidence to support defendant’s conviction of second-degree vulnerable adult abuse, MCL 750.145n(2); MSA 28.342A(n)(2). Defendant, a social worker, acted as the gatekeeper regarding emergency medical services for the Newport Center’s adult foster care clients, requiring that all employees obtain his approval before arranging for medical services or risk personal liability for their cost. The jury properly concluded that defendant’s decision to deny emergency services for this victim was a criminal act.

A

To support a conviction of second-degree vulnerable adult abuse, the prosecution must prove that (1) the defendant was a caregiver or other person with authority over the victim, (2) the victim was a vulnerable adult, (3) the defendant recklessly acted or failed to act, and (4) the defendant’s recklessness “causefd] serious physical harm or serious mental harm to the vulnerable adult.” MCL 750.145n(2); MSA 28.342A(n)(2). In this case, the prosecutor proceeded *572under a theory that defendant’s recklessness caused “serious physical harm,” not “serious mental harm.”1

The Legislature defined the phrase “serious physical harm” as “a 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). This Court must apply the phrase as expressly defined. People v Chupp, 200 Mich App 45, 49; 503 NW2d 698 (1993). Therefore, under the clear language of the statute, the defendant’s recklessness must cause a “physical injury” that either (1) threatens the life of a vulnerable adult, (2) causes substantial bodily disfigurement, or (3) seriously impairs the functioning or well-being of the vulnerable adult.

I agree with the majority that evidence that defendant’s recklessness threatened the life of the victim was not, by itself, sufficient to support a conviction. I cannot, however, join in the majority’s conclusion that bodily pain does not constitute a “physical injury” for purposes of the statute. The construction of the statute is a question of law for this Court. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). In construing the statute, this Court’s purpose is to ascertain the reasonable meaning of the specific language employed by the Legislature. People v Vronko, 228 Mich App 649, 655; 579 NW2d 138 (1998); People v Armstrong, 212 Mich App 121, 127; 536 NW2d 789 (1995).

*573Because the Legislature did not define the phrase “physical injury,” this Court must give those words their common, ordinary meanings. Webb, supra at 274; People v Fields, 448 Mich 58, 67; 528 NW2d 176 (1995). In ascertaining the common 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.” Webster’s New Collegiate Dictionary (1974), pp 594 & 866, similarly defines the term “physical” as “of or relating to the body” and the term “injury” as “hurt, damage, or loss sustained.” Those dictionaries define the term “pain” as “[usually] localized physical suffering associated with a bodily disorder (as a disease or an injury),” Webster’s New Collegiate Dictionary (1974), p 824, and “physical suffering typically from injury or illness,” or “an instance of such suffering; a distressing sensation in part of the body.” Random House Webster’s College Dictionary (1997), p 972. Accordingly, giving the statutory language its common meaning, I would hold that the phrase “physical injury” encompasses bodily pain because pain both relates to the body and is harmful or hurtful.

B

In this case, the question is whether the prosecution proved that defendant’s recklessness caused the victim bodily pain that affected her in one of the three ways set forth in the statute.2 Unlike the major*574ity, I would hold that a reasonable jury could find that defendant caused the victim bodily pain. That defendant’s act was not the sole cause of harm to the victim does not relieve him of culpability. His recklessness need only be a proximate cause. See People v Bailey, 451 Mich 657, 676; 549 NW2d 325 (1996), amended 453 Mich 1204 (1996); People v Tims, 449 Mich 83, 95; 534 NW2d 675 (1995). As such, to establish causation, the prosecution had only to prove that defendant’s recklessness exacerbated the victim’s pain. The prosecution unquestionably met this burden by presenting overwhelming evidence establishing that the victim spent sixteen or seventeen hours in excruciating pain as the result of defendant’s reckless failure to act, i.e., to authorize emergency medical services. The prosecution also met its burden of proof regarding the severity of the harm by establishing that the victim’s pain seriously impaired her functioning or well-being.

According to Newport Center employees, defendant established the center’s policy regarding emergency medical services (ems). Under the policy, the employees were required to contact a case manager for authorization to obtain medical treatment for a resident. Thomas Horrocks, the center’s residential administrator, described the manner in which defendant responded to attempts to change the policy before the victim’s injury:

On a number of occasions I had input into the need to revise the policy in order to be able to better respond to cli*575ent and patient needs; however, all attempts to change the policy were vetoed by Mr. DeKorte and through threats and intimidation he refused to allow myself or any other staff member to change that policy.
One [occasion] in particular that comes to my mind is a situation in July of 1995 previous to [the victim’s] incident in which I made a statement in a meeting that I would be calling 911 to get appropriate care for the patients if they needed it, and Mr. DeKorte told me that I needed to start filling out my resume and looking for another job, and that I would be paying for costs of these hospital services and that it costs $50 to send a person to a doctor and $1,500 to send them to the emergency room, and that it was his call as case manager to determine when services were appropriate.

Two weeks after the criminal episode under review, defendant instructed a center employee to alter the policy to reflect that employees should contact the residential administrator, not the case manager, before taking action. Defendant'further requested that the employee backdate the policy change, but the employee could not recall at trial whether the date fell before or after the date of the victim’s injury.3

In compliance with the standing ems policy, Wayne Devette, the house coordinator, phoned defendant shortly after discovering the victim to report the victim’s complaints of pain and paralysis. Defendant instructed Devette to check the victim’s vital signs *576and encourage her to stand and move inside even though she had suffered a shattered pelvis, dislocated hip, and dislocated elbow. One of the employees at the scene refused to participate in moving someone who was so seriously injured. Other employees, however, assisted the victim in walking to the building.

Devette phoned defendant again as the victim sat in a chair near his office. Defendant ordered Devette to continue monitoring the victim’s condition, reiterating that “it would cost $1,000 to go to the hospital, and it would be $50 to make a doctor’s appointment for her.” Following defendant’s instructions, Devette left a note on Horrocks’ desk requesting that he schedule a doctor’s appointment for the victim. The victim was eventually moved to the living room floor, where she spent the night.

After arriving at work at 8:00 A.M., Horrocks scheduled a doctor’s appointment for the victim later that day. Horrocks then spoke to defendant about obtaining immediate treatment for the victim. Defendant refused, stating that the victim was manipulative and engaging in histrionics. He instructed Horrocks to get the victim ready for her appointment. Defendant also refused Horrocks’ request that he immediately personally assess the victim’s condition. Horrocks attempted to implement defendant’s orders, but the victim could not raise herself from the floor. She urinated on her clothing because she could not walk to the restroom. Throughout the morning, Horrocks repeatedly requested that defendant examine the victim to assess her injuries, but he declined.

Defendant first saw the victim approximately three or four hours after arriving at work. Even after speaking with her and observing her inability to move, *577defendant declined to arrange for immediate medical treatment. Instead, he encouraged the victim to get up and dress herself for her doctor’s appointment. The victim missed her appointment because she could not move from the living room floor. At 2:00 p.m., Horrocks, acting without defendant’s authorization while defendant was at lunch, called ems to transport the victim to the hospital.

This evidence clearly demonstrates that defendant’s actions seriously impaired the victim’s functioning or well-being. As a result of defendant’s reckless decisions, the victim spent sixteen or seventeen hours in excruciating pain from a shattered pelvis, and a dislocated hip and elbow. During this period, the victim lay on the floor in agony, unable to move or care for herself, risking additional complications from her injuries. Indeed, the treating orthopedic surgeon described the pelvic fracture as unstable. The act of moving the victim increased the risks of hemorrhage and blood clots and posed a threat to her life. A jury could reasonably find on the basis of this evidence that the defendant’s recklessness caused the victim severe pain that seriously impaired her functioning or well-being. Therefore, I would hold that the prosecution presented sufficient evidence to support defendant’s conviction.

For purposes of the statute, “serious mental harm” means “a mental injury that results in a substantial alteration of the mental functioning that is manifested in a visibly demonstrable manner.” MCL 750.145m(s); MSA 28.342A(m)(s).

I agree with the majority that a reasonable jury could conclude that defendant’s refusal to arrange for proper medical care for the victim was *574conduct that demonstrated a deliberate disregard for the likelihood that the natural tendency of his failure to act was to cause the victim serious physical harm.

Defendant’s practice of backdating documents did not end with the ems policy. In response to an investigation into the incident, defendant prepared several reports regarding the care provided for the victim during periods ending in 1994, February 1995, and May 1995. Although he prepared the reports in August 1995, defendant dated his signature to correspond with the end of the period covered, not the date the reports were actually prepared and signed.