Six months after Meriter nurse suspended in injured newborns case, no arrest or charges made

August 17, 2018

UnityPoint Health-Meriter

Six months after UnityPoint Health-Meriter suspended a nurse suspected of injuring five babies, a criminal investigation of the nurse, whose license was also suspended, has not resulted in an arrest or charges.

The Madison Police Department has handed off the case to the Dane County District Attorney’s Office, though officers are still involved, said police spokesman Joel DeSpain.

District Attorney Ismael Ozanne said no decision has been made on whether to file charges, and he is awaiting more information. Ozanne wouldn’t say when a decision might be made.

Federal inspection reports in March detailed bruising and skull, arm and rib fractures to the babies from April 2017 to this February. But there has been no public accounting of what evidence may be available against the nurse or what reasons could explain negligent or intentional injuries to the babies in Meriter’s 42-bed newborn intensive care unit.

The lack of charges so far could reflect the complexity of a case involving multiple patients, potentially multiple health care providers and the susceptibility of infants to injury, intentional or accidental, attorneys not involved in the case say.

It could also stem from what Ozanne has called a shortage of state-funded staff at the DA’s office, where other types of cases often must be dealt with first, said Timothy Verhoff, a former deputy DA.

“A lot of it has to do with resources,” said Verhoff, now a criminal defense attorney in Madison. Inadequate staffing “is probably the number one reason why there is a delay, if there is a delay, in charging.”

Meriter suspended the nurse Feb. 8 following an internal investigation and referred the case to the police the next day.

In March, the hospital received an “immediate jeopardy” violation — the most serious given — after a federal inspection found it didn’t respond appropriately when an infant was discovered bruised in April 2017, allowing four more babies to be injured.

The hospital “failed to develop and implement an effective policy to prevent, screen, identify, train, protect, thoroughly investigate, report, and respond to any allegations of suspected abuse,” a federal report said.

Two subsequent inspections found additional violations, many not related to the injured babies, which could have led the government to terminate Meriter’s Medicare contract. But after a fourth inspection in June, the hospital was found to be in compliance with Medicare rules.

The Wisconsin Board of Nursing suspended the nurse’s license March 19, and the nurse agreed not to work as a nurse while investigations are under way.

The removal of the nurse from nursing practice could be one reason the criminal investigation hasn’t been resolved quickly, Verhoff said.

If potential harm is imminent, police are more likely to make a quick arrest to protect the public, he said. In the Meriter situation, the threat appears to have been reduced by keeping the nurse off the job.

“There’s less pressure to get (the investigation) up and running,” Verhoff said.

Eric Farnsworth, a medical malpractice attorney in Madison, said the involvement of at least five babies in the case could be delaying a decision on charges.

“You may have an air-tight case on baby A, but you’re weaker on babies B and C,” he said. “Do you charge A ... or do you keep working on all of them, recognizing there’s strength in numbers?”

The suspended nurse cared for each of the five babies, according to an inspection report. But it might be difficult, in a criminal investigation, to show other nurses weren’t involved, Farnsworth said.

“If these babies were handled by multiple shift nurses, how do you prove exactly when it happened?” he said.

Verhoff agreed. “You might have two people saying the other one did it,” he said.

Such an impediment isn’t much of a factor in a civil case, however, Farnsworth said. In that situation, the goal is to show that the institution, not necessarily a particular employee, failed to protect those harmed, he said.

It’s likely that infants, especially those born prematurely, which account for most of those in the newborn intensive care unit, can be easily injured by mishandling, even if not on purpose, Farnsworth said.

Proving that any mishandling was intentional could be a challenge, he said.

Six months isn’t unheard of for criminal investigations in Dane County. The DA’s office took a year before announcing June 1 that no criminal charges would be filed against the operators of a UW Lake Safety boat that struck and killed Yu Chen, a windsurfer on Lake Mendota, on May 31, 2017.

Furthermore, six months doesn’t mean the case against the Meriter nurse is weak — or strong, Verhoff said.

“If they’re delaying, there could be very good reasons that we just don’t know and they can’t comment on,” he said. “It doesn’t make it a bad case.”

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