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Text of Affidavit filed by State of Nevada: CASE NO. 7976 IN THE JUSTICE COURT OF THE TONOPAH TOWNSHIP AND FOR THE COUNTY OF NYE, STATE OF NEVADA STATE OF NEVADA, Plaintiff, VS. BERNICE FAY ANDERSON, PATRICIA PERRY PAUL and JANE RUDOLPH, Defendants. AFFIDAVIT OF PROBABLE CAUSE IN SUPPORT OF CRIMINAL COMPLAINT AND ISSUANCE OF ARREST WARRANT (S) the STATE OF NEVADA ) ) COUNTY OF CLARK ) I, BARBARA BACKMAN, do hereby swear under penalty of perjury than assertions of this Affidavit are true: 1. That since 5/12/97, I have been employed as an Invastigator by tbe Office of the Attorney General, State of Nevada, with peace officer status, assigned to the Medicaid Fraud Control UniL Prior to this, I was employed by the Siskiyou County District Attorney in California; first from l(g91 to 8/95 as Director of tbe Siskiyou County Victim Witness Program and Coordinator for the Spousal Abuser Prosecution Program and Siskiyou County Child Abuse Response Team; then from 8/95 to 4/97, as an Investigator assigned to major felony crimes with a primary assignment to the felony child sexual assault unit. Before these assignments, I was employed as a Social Worker for the Sisidyou County Welfare Department, investigating serious crimes against children. From 1972 until 1985 1 worked as a California Licensed Vocational Nurse in a number of acute care facilities with patients ranging from the neonate to the geriatric population. My formal education includes graduation from the Golden West College Vocational Nursing Program in Huntington Beach, California in 1972, with an additional 60 units of general education and behavioral sciences from various junior colleges and universities. On November 14, 1995, I graduated from the Yuba College Basic Investigator's Academy consisting of more than 400 hours of law enforcement training. I have received over 500 hours of formal law enforcement training on child abuse investigations and sixteen hours of training in the investigation of elder abuse and neglect. These courses included advanced training in identifying injuries sustained from non-accidental trauma. Between 1987 and May of 1996, I completed more than 1000 additional hours of formal law enforcement training in a variety of topics. 2. In addition to investigating criminal financial fraud by Medicaid providers, the Medicaid Fraud Control Unit investigates allegations of eMminal neglect of patients and allegations of abuse, neglect and exploitation of older persons who are in facilities which receive Medicaid payments. I recently completed an investigation concerning: (1) criminal neglect of a patient; and (2) neglect of an older person involving Nye Regional Medical Center (Nye Regional) and their employees: BERNICEFAY ANDERSON (ANDERSON), PATRICIA PERRY PAUL (PAUL) and JANE RUDOLPH (RUDOLPH). 3. Based on the investigation, I have probable cause to believe that profes- sional caretakers, ANDERSON, PAUL and RUDOLPH failed to provide such service, care or supervision as was reasonable and necessary to maintain the health or safety of patient Sarah McMurry, a person over 60 years of age, in violation of NRS 200.495(1 ); and said violation(s) resulted in substantial bodily harm to Ms. McMarry, thereby constituting a felony (NRS 200.495(2) (b)). 4. Based on the investigation, I have probable cause to believe ANDERSON, PAUL and RUDOLPH had assumed responsibility, legally, or pursuant to a contract to care for Ms. McMurry in a long term care facility; that ANDERSON, PAUL and RUDOLPH, did commit neglect in their dealings with Ms. McMurry; and as a result ofsach neglect Ms. McMurry suffered unjustifiable physical pain or mental suffering and/or .NDERSON, PAUL and RUDOLPH did directly permit or allow Ms. McMurry to be placed in a situation where she suffered unjustifiable physical pain or mental suffering, in violation of NRS 200.5092(3) and 200.5099 (3); and said violatiun(s) resulted in substantial bodily or mental harm or death to Ms. McMurry, thereby constituting a felony (NRS 200.5099 (3) and (7)). 5. Based on the investigation, I have probable cause to believe that RUDOLPH, in her professional capacity as a supervisory registered nurse, employed at Nye Regional Medical Center, was in a professional or occupational capacity to know or had reason to believe that Ms. McMurry was being or had been neglected. Therefore, pursuant to NRS 200.5093, RUDOLPH was requiredtoimmediately, but in no event later than 24 hours after there was reason to believe Ms. McMorry had been neglected, make a report to one of the agencies designated in NRS 200.5093. RI=TDOLPH knowingly and willfully failed to make a report in accordance with of NRS 200.5093, committing a misdenganor violation of (NRS 200.5099(1)). The facts which your afliant upon personal knowledge, and/or informa- tion and belief, verily believes to be true and which  prolmble cau are as follows: 6. I began this investigation after the Medicaid Frond Control Unit received an allegation that an incident of criminal neglect of a patient and/or almse or neglect of an older person had occurt at Nye Regional regarding Medicaid patient Sarah McMurry. it was alleged that on November 23,1996, Nye Regional staff did not adhere to the patiant's care plan when they attempted to manually lift and transfer MS. McMurry from a shower/hath chair to a gei chair. A mechanical rift and transfer method was noted in Ms. McMurry's care plalL Thronghtheir use of the contra indicated manual lift and transport method MS. McMorry was injured, suffering a dislocated left shoulder. It was farther reported that on 12A)2/ 96 Ms. McMurry died from internal bleeding. 7. In connection with my investigation of this matter, I have interviewed a numher of former and present employees of Nye Regional, along withemployees from the Division for Aging Services, and the Bureau of Licensure and Certification. In addition, I have reviewed documents from Nye Regional, the Division for Aging Services, the Division of Welfam-Medieaid, and the Bureau ofLicensum aad Certification. The records reviewed include patient charts, care plans concenting Sarah McMurry and Nye Reglonal's policy and procedures manuals. 8. My investigation reveals that Nye Regional, formally called Nye Regional Medical Center, is a Nevada medical facility pursuant to NRS 449.0151, in Tunopah Township, Nye County, Nevada. 9. Pursuant to a contract with Nevada Medicaid, Nye Regional received Medicaid funds for providing ce to Medicaid patients. As a facility receiving Medicaid funds, it must comply with Nevada Medicaid regulations, and bulletins in addition to any applicable state and federal laws and regulations. 10. I have reviewed Nevada Medicaid regulations, Medicaid Services Manual, Chapter V, as it related to reporting requirements of incidents concern- ing serious injury or death to any Medicaid resident by other than natural causes. 1 I. I have reviewed the Nmses Practicing Act codified in Chapter 632 of the Nevada Revised Statutes (NRS) and Regulations of the 8rate Board of Nursing contained in Chapter 632 of the Nevada Adminimalive Code (NAC), adopted and authoriz pursuant to NRS 632.120. 12. After reviewing the medical records of Ms. McMurry, as well as other  relXntS and policies of Nye Regional and uther state agencies, along with information received from witness interviews, my investigation mvs that Ms. Sarali McMorry was subjocted to: ( 1 ) criminal neglect as a patient; (2) neglect as an older person; and (3) mid incidents wm not report as mquir bY Iaw- (UIVIINAL NEG OF A PATIENT NRS 200.495 13. With reqtect to the 11/23/96 injury to Sarah McMurry, I obtained the following infma/im through the review of Sarah McMurry's medical recotd Pahrump Valley Gazette, Thursday, December 11, incident reports, other agency reports, Nye Regional's records, reports and policies, in addition to interviewiqg various present and former employees: a Nye Regional staff knew that Ms. McMurry had incurred priorinjuries due to an improper lift and transportation method being utilized. b. Nye Regional staff, including ANDERSON, PAUL and RUDOLPH received prior training and ira.tractions concerning t he proper nse of a mechanical hoyer lift. c. Nye Regional staff, including ANDERSON, PAUL and RUDOLPH received prior instructions that Ms. McMurry was to be transported and/or moved by utilizing the mechanical hoyer lift. d. Sarah McMurry's patient care plan and chart notes stated she was to be transported by utilization of a mechanical lift only. e. ANDERSON, PAUL and RUDOLPH had knowledge of the items referenced in paragraph 13 (a) through (d) above. Additionally, due to an earlier incident with Ms. McMarry being improperly transported, she was suffering from an unhealed fracture of her left femur. f. On or about 6/18/97 and 8/13/97 during interviews with this Investigator, PAUL said that on 11/23/96 while in the shower room, ANDERSON and PAUL chose to transport Ms. McMun'y from a shower/tub chair to a geri chair utilizing a manual two person towel lift method. During their attempts to use the towel lift method ANDERSON dropped Ms. McMurry, and PAUL attempted to catch her. ANDERSON did not summon aid/belp by calling the acute care wing of the facility. After dropping Ms. McMurry, ANDERSON proceeded to the patients' dining/luneh room to obtain help. ANDERSON contacted a Certified Nurse Assistant Jennifer Zane, anxl requested help. During 6/19/97 interview with this Investigator, Zane said ANDERSON told Zane one of the chairs involved during the manual transport of MS. McMurry was not locked. Upon arrival at the shower room Zane observed Ms. McMutry lying on the floor with PAUL'S legs and a towel underneath Ms. McMun'y. Zane told affiaut Ms. McMurry was groaning at that time, but did not readily express any pain. ANDERSON, PAUL and ZANE then lifted Ms. McMurry into a geri chair. g. PAUL told affiant that prior to dropping Ms. McMurry, PAUL asked ANDERSON if ANDERSON was sure a towel lift of Ms. McMurry would be appropriate, because ANDERSON had a bad back. In response to this question, ANDERSON told PAUL it was lunehtime and the towellift method is faster than the foyer lift. This discussion occurred when ANDERSON and PAUL trans- ported Ms. McMurry out of her geri chair and into the shower/tub chair in preparation for her 11/23/96 bath. h. PAUL told this Investigator that after bathing Ms. McMurry, PAUL requested ANDERSON'S assistance in transporting Ms. McMurry from the showerAub chair hack into the gem chair. During this towel lift transfer, PAUL told Affiant that ANDERSON let go of Ms. McMurry and bumped the gem chair. The brakes on the geri chair were not locked and it moved away from them. PAUL told Affiant that when she attempted to catch Ms. McMurry she heard a popping sound come from Ms. McMarry. PAUL told ANDERSON of this. i. PAUL told Affiant that after she, Zane and ANDERSON moved Ms. McMmry into the geri chair, Ms. McMurry complained that she hurt and in particular, her arm hurt. j. Both PAUL and Zane told Affiant that ANDERSON instructed them not to report the dropping of MS. McMurry. PAUL also told Affiant that ANDER- SON said that they could lose their jobs iftbe incident was reported. ANDER- SON specifically requested that PAUL not tell anyone how Ms. McMurry was lifted. k. PAUL told Affiant she requested ANDERSON to give Ms. McMurry some pain medication. ANDERSON responded she would not, because Ms. McMarry had already received pain medication earlier that day. I. During a 7/2/97 interview with Afliant, ANDERSON described the dropping of Ms. McMurry as placing her on the floor after the geri chair was bumped, and denied telling others not to report the incident. ANDERSON said that Ms. McMurry was not injured and was nut complaining of pain. ANDER- SON told Affront Ms. McMurry had astanding order for pmn medication and that she (ANDERSON) gave Ms. McMurry Vicodan on a daily basis. ANDERSON also said she contacted Dr. McGrorey, Nye Regionars emergency room physi- cian and reported the incident. m. This hivestigatos review ofNye Regionars medical records reflect that ANDERSON provided pain medication to Ms. McMurry about twenty minutes after she was dropped, and those medical records did not support ANDERSON'S claims of giving Ms. McMurry Vicoden on a daily basis. This Investigator interviewed Dr. McGrorey on 6/9/97. He had no recollection of ANDERSON contacting him regarding Sarah McMarry. Dr. McGrorey told Affiant if he had been notified, he would have wanted to examine and assess Ms. McMurry for injuries. n. PAUL and Zane both told Affiant they had to advise ANDERSON that she should contact the supervisory nurse. RUDOLPH, aad relxm the dropping of Ms. McMurry. They told her they were prepared to report the incident to RUDOLPH if ANDERSON failed to do so. PAUL told Affiant she did not observe ANDERSON examine Ms. McMurry, call her doctor, or go to the emergency room after the ineident. o. During a telephone interview RUDOLPH told t that on 11/23/96, after talking with staff (i.e., ANDERSON and PAUL), she looked at Ms. McMurry and inquired if she was all fight or hurt. RUIM)LPH said she determined that Ms. MeMtm'y did rJat fall, and therefore it was not neommry to call a docto. RUDOLPH said that an incident did not ocour with Ms. McMurry, that she did not go to the float, "so it was just a near incident." Howevor, Affiant's review ofNye Regionalrecordsindicated that on Sattmtay, 11/23/96, RUDOLPH, was called back to work from her day off due to an "incident" with a patient. p. PAUL described RUDOLPH'S examination of Ms. McMurry to this Investigmor as occtming at the nurses' station while Sarah McMutry was in her geri chair. RUDOLPH stood in from of Ms. McMurry, placed her hands on her arms as if to get her attention, aad asked if she was all fight. MS. McMutry responded yes, at which time RUDOLPH moved the hem of Ms. McMurry's skirt, looked at her knees momentarily and said "ok". At no time did RUDOLPH examine the balance of Ms. McMmry's body for injury. RUDOLPH did not properly assess or examine Sarah McMurw fox injuries or physical pain. RUDOLPH did not conduct a thorough physical examinmion or inspect or palpate Ms. McMurry's extremities. RUDOLI did not contact Nye Reglonars emergency room or contact a physician. ARcr RUDOLPH departed, Ms. McMurry was placed in her hed. q. PAUL mid Affiant that sevoral days after the incident RUDOLPH requested PAUL sign a statement to the effect that the foyer lift should always be used except in the shower room, and that former supervisor Louise Rush authorized manual lifts in the shower room. PAUL said she fell she was being pressured to sign something that was not true. r. In a 6/19/97 interview with Afftant, Rush denied ever anthorifing such.a limitation on the ase of the hoyerlift with Ms. MeMurry, and stated that the orders were that Sarah McMurry was to be hoyer lifted only. s. Affiam reviewed medical records and determined that M. McMurry was not treated or furthex examined for any injuries sttaming from being dropped in the shower room for an additional 24 to 26 hours. t. Dr. John Schwartz was Sarah McMurry's attending physician during the incident. In an 8/5/97 interview with Dr. Schwartz, he told Affiant that during the night prior tO 11/27/96, he received a call from a Nye Regional employee informing him that Ms. McMurry's shoulder was giving her problems. The following day he observed her left shoulder to be very braised and swoilem it was dislocated. Subsequently, he unsuccessfully attempted to reduce the dislocation. u. Affumt's review ofNyc Regioanl's medical records indicate that on 11/271 96 aftor the attempted shoulder reduction, Ms. McMurry was transferred to the emergency room because she was medically unstable. Subsequently she was transferred to Ny Regional's acum cam cemer whtm'- her oundition continued to deteriorate. She died on 12/2/96. v. On 11/27/96, four days after the ocCmle, a report was made of the incident by Nye Regional staff to the Divisicm for Aging Smrvices, a mandatmy relxaling agency designated in NRS 200.5093. w. Nye Regionars records aad manuals include a policy for Rqoning of accidents and incidents. The procedure is to report an accident or ineident to the departmem sopervi.ua" and a quality review form must he completed on the shift that the accidentfmcident occtmed. This mnst be done regardless of how minor 1997 15 the accident or incident may be. Nye Reglonal's protocol states that the victim is not to be moved until examined for possible injuries. The staff/charge nurse (i.e., ANDERSON) should examine all accident or incident victims, notify the medical director or personal physician and if necessary transfer the patient to the emergency room. A review ofNye Regionai's records indicate ANDERSON had training regarding the reporting of incidents and accidents. x. Louise Rush told this investigator that RUIX)LPH received instructions regarding Nye Reglonars protocol concerning repotting incidents in addition to instructions concerning the statutory mandatory reporting requirements of elder abuse, neglect or exploitation. These instructions were given to RUDOLPH during her orientation training. 14. Based upon my investigation, I believe that ANDERSON, PAUL and RUDOLPH failed to provide such service earn or supervision as was reasonable and necessary to maintain the 13calth and/or safety of Sarah McMurey. The acts of willfully not following specific ordet and instead using a contraindicated manual towel lift; of failing to properly  the dropping of Sarah McMurry; the failure to properly and adequately assess orexamine Ms. McMutry after she was dropped; and the omission of allowing her to go untreated and/or unexamined concerning her injuries (i.e., separated ) were aggravated, reckless or gross. These acts and omissions were such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances that tbey were contrary to a regard for danger to human life and/or constituted an indifference to the resultinguences of Ms. McMarry's separated shoulder with subsequent complication. It was reasonably foreseeable that utilizing a contra-indicated manual WanSlXm method would result in the dropping and injury of Ms. MeMurry. It was also reasonably foreseeable that a failure to properly assess and e Ms. McMurry would result ill prolonged pain and complieatioas to Ms. McMtmy. Forthetmom, it was reasonably foreseeable that not properly reporting the incident would result in complications to the well being of Ms. McMurry. The injury and severe prolonged pain that occurred to MS. McMun'y was not the result of inattention, mistakonjudgment or misadventure. The resulting injuries and prolonged severe pain were natural and probable results of: ( 1 ) Aggravated, reckless and/or grossly negligent choices ANDER- SON and PAUL undertook in knowingly selecting a contraindicated rrmual transport method;(2)The failureof ANDERSON, PAUL and RUDOLPH to properly report the dropping of MS. McMurry; and (3) the failure of ANDER- SON, and RUDOLPH to ensure Sarah McMun-y was im3perly assessed and examined for physical injuries. 15. Based upon the foregoing, there is probable cause to believe that individually BERNICE FAY ANDERSON, PATRICIA PERRY PAUL and JANE RUDOLPH have committed the crime of CRIMINAL NEGI.F'T, a violation of NRS 200.495, a felony. NEGLECT OF OLDER PERSONS NRS 200.5099; NRS 200.5092 (3) (Felony) 16. I hereby reference and incorporate the above paragraphs 1 through 15, inclusive as though fully set forth herein at lengtli. 17. Based upon my investigation and the facts noted above, I believe ANDERSON, PAUL and RUDOLPH were persons who as professional caretakers had assumed legal responsibility or a contractual obligation for caring for Ms. McMarry, an older person, and to provide such services, including medical and daily living services, which were necessary to maintain the physical or mental health of MS. McMurry. 18. Based upon my investigation and the facts set forth above, I believe ANDERSON and PAUL did neglect Ms. McMurry by using a contraindicated manual transport method and dropping her in be shower room, resulting in her suffering physical pain ( i.e., separated shoulder) and/or mental suffering. ANDERSON and PAUL further neglected Ms. McMurry by failing to properly report the dropping of Ms. McMurry and failing to see that she was properly assessed or examined for injuries which resulted in her suffering the prolonged physical pain or mental suffering from the substantial bodily harm of an undiagnosed separated shoulder for approximately 24 to 36 hours, it was ANDERSON and PAUL'S failure to provide proper medical and daily living services, including ambulation services, that resulted in that neglect. 19. Based upon my investigation and the facts set forth above, I believe RUDOLPH did neglect Ms. McMurry by failing to propedy assess or examine Ms. McMurry for injuries after being called into work in a supervisory capacity for the specific purpose of responding to the shower room incident. By failing to provide that proper medical assessment, examination, or service, RUDOLPH permitted Ms. McMurry to suffer the unjustifiable prolonged physical pain and/ or mental suffering from the substantial bodily harm o fan undiagnoscd separated shoulder for an additional 24 to 36 hours. 20. Based upon the foregoing, there is probable cause to believe that individually BERNICE FAY ANDERSON, PATR1CIA PERRY PAUL and JANE RUDOLPH have committed the crime of NEGLECT OF AN OLDER PERSON, a violation of NRS 200.5099; NRS 200.5092 (3), a felony: REPORTS: VOLUNTARY AND MANDATORY NRS 200.99; NRS 200.r093 (Misdemeanor) 21. I hereby mferan and incorporate the above paragraphs I tlmmgh 20 inclusive as though fully set forth herein at length. 22.,Based upon my investisadon and the facts stated above, I believe RUDOLPH is a person mqnired to malta a repot't in accordam with NRS 200_*,093 immedimely, but in no eveat later than 24 hou alter there was r to helievc that an older person, Sarah McMurry, had been abused, neglected or exploited. As sue& person RUDOLPH should have made our her reports to: (a) The local office of the welfare or aging services division of the depammm of human resoumm; Co) Any policy dapartmcnt or sheriffs office; or (c) The county's office for protective services, if one exists in the corm. ty whe tbe suspocted action occuntd. 23. RUDOI.J know the wamual uauslxm method was conWay to the mechanical transport method indicated to he used in Sarah McMuns patient care plan and patient file. By utilizing the contraindicated manual mm.qrt system which resulted in Sarah McMuny being dropped in the shower room and incurring an hnpaired/separated left shonlder, ANDERSON and PAUL failed to provide soch ueeessary services to maiatain the physical or mental ixalth of Sarah McMurry. RUDOLPH had knowledge of their legal duty to report inoldents of elder neglect through her enrlier training and inmasaions from co- workers. Despite her legal duty to report, Defendant RUDOLPH knowingly or wilfnily failed to report the incident as required in NRS 200.5093 ( 1 ). 24. Based upon the fotx,'going, there is probable caase to believe that JANE RUDOLPH has coramitted the crime of FAILURE TO REPORT ABUSE, NEG AND EXPLDrrATION OF AN OLDER PERSON in violation of NRS 200.5099 and NRS 200.5093, a misdemeanor. WHEREFORK your affiam mquts that arrest warrants be issued for BERNICE FAY ANDERSON, PATRICIA PERRY PAUL and JANE RUILPH; and that said Defendants be dealt with according to law. DATED this 20day of No, 1997. BARBARA BACKMAN Investigator SUBSCRIBED AND SWORN to before me this 20th day of November, 1997 by: BARBARA BACKMAN. Doris 1. Williams Notary Public in and for the County of Clark, State of Nevada FRANKIE SUE DEL PAPA Attorney Genera] Reviewed by: MarkN. DelmtY Attcey General Nevada State Bar No. 5388 Fraud Control Unit 555 Fast Washington Ave., Ste. 3900 l.as Vegas, Nevada 89101 (7O2) 486-3777 Attom for Plaintiff STATE OF NEVADA