Judge dismisses indictment against former nursing-home employee

gkocher1@herald-leader.comJanuary 28, 2012 

FRANKFORT — In a rare action, a Franklin Circuit Court judge dismissed an indictment against a former nursing-home employee accused of neglect or abuse of a resident.

In his Jan. 19 order dismissing the indictment, Judge Thomas Wingate said an investigator "made certain false and/or misleading statements to the grand jury in order to obtain the indictment in this case."

The state attorney general's office said in a written statement Friday that "we are disappointed in Judge Wingate's ruling," and that testimony presented at a dismissal hearing last fall "was never provided to the attorney general's office, nor the Office of Inspector General," the agency that works with nursing homes to comply with state and federal regulations.

"We respectfully disagree with the dismissal and are now considering our next legal steps," the statement said.

The case involves a June 2010 indictment that accused Elizabeth Elaine Royse with one count of knowingly abusing or neglecting an adult, a felony punishable by five to 10 years in prison.

The indictment said Royse, 48, a former licensed practical nurse at Golden Living Center in Frankfort, failed "to provide goods and services necessary to maintain" the health and welfare of resident Carolyn Franks between Dec. 12 and 25, 2007.

Franks, 66, died in February 2008.

Royse allegedly failed to order lab tests, supervise nursing assistants, encourage Franks to take fluids, or to contact supervisors about Franks' condition.

Reed Wilbers, an investigator with the Medicaid Fraud and Abuse Control Unit of the attorney general's office, told the grand jury that Royse had worked at the nursing home for several months, "when in fact the defendant had only been employed for eight weeks," Wingate wrote in his ruling. Wingate's point was that a person who had worked at any job for several months "would largely outweigh" a person employed for eight weeks.

Wilbers also told the grand jury that Royse "failed to notify her superiors about Franks' declining condition." But the defense proved that Royse had contacted her superior several times, the judge wrote.

Wingate said the crux of the prosecution's case was that Royse failed to properly follow through with lab orders for Franks. The defense proved at the hearing that Royse "made several notations for labs to be taken, but those notations were not followed through" by her day-shift co-workers, Wingate wrote.

Franks was eventually sent to a hospital where those labs were taken. She was given the fluids and she returned to the nursing home that same day, the judge wrote.

"Those are all material facts that a grand jury must be truthfully informed of before issuing an indictment," Wingate said.

In a statement, the attorney general's office said "the investigator in this case has more than 30 years of law-enforcement experience. He presented to the grand jury all of the evidence which was available to him at that time, including testimony based on the inspector general's report, a nurse's review of the medical records, and statements of witnesses. The information cited in the court's order was not presented to the investigators until after the indictment."

But Wingate wrote in his order that the purpose of a grand jury is to indict felonious conduct, "not possible negligence or a simple misunderstanding between co-workers."

"If the court allowed this matter to go forward, there would be very few nurses in the state who would not be guilty of a Class C felony at one time or another," Win gate added. "Such prosecution is not the intent of the drafters of our penal code."

Royse now lives in Florida after her employment at the Frankfort nursing home was terminated in early 2008. As for the dismissal of the indictment against her, Royse said Friday, "Obviously, I'm very happy about it."

Her nursing license was temporarily suspended by the Kentucky Board of Nursing, so she supports herself with odd jobs like cleaning houses. Royse said she hopes to have that license reinstated, and one of her attorneys, John L. Smith of Louisville, said he is taking steps to do that.

Smith, who said he has practiced law since 1964, said he is aware of a judge dismissing an indictment only a handful of times.

A Type A citation, the state's most serious, was filed against the nursing home after the episode involving Franks. A Type A citation indicates that a resident's life or safety has been endangered because of violations of state regulations.

Smith confirmed that the family of Franks reached a civil settlement with the nursing home about her care, but he said Royse was not involved in that settlement.

Wingate amended his original dismissal order so that charges could be brought again against Royse. The amendment also allows the attorney general's office to appeal the judge's ruling.

Shelley Johnson, a spokeswoman for the attorney general's office, said "We're going to go back and review the case and consider all our options."

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