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Jury votes 9-3 for acquittal

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From page A1 | November 15, 2013 |

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DONNA PALMER, smiling after hearing there was a hung jury in her elder abuse trial, leaves the courtroom. Democrat photos by Pat Dollins

The trial of a former director of nurses at a skilled care facility accused of elder abuse ended in a mistrial after only a few hours of deliberation.

At about 11:20 a.m., the jury was let out for deliberations. At 3:40 p.m., they returned to court. The jury foreman announced that there was a 9-3 split, and, after Judge Daniel B. Proud polled each juror, it was unanimous that there was no hope for a change to a unanimous verdict. Nine were in favor of acquittal, three were in favor of a guilty verdict, the foreman said.

Proud released the jury, ending the trial. A hearing to announce whether the Attorney General’s Office intends to continue to pursue or to dismiss the charge will be held Nov. 18 at 1:30 p.m. in Department 2.

“Well, the jury almost got it all right,” Defense attorney Patrick Hanly said as he left the Courthouse.

Deputy Attorney General Steven Muni began his closing arguments of the Donna Palmer trial by quoting witness Dr. Brad Barnhill: Per an x-ray taken of Johnnie Esco when she was brought from El Dorado Care Center to Marshall Medical Center, Esco had “one of the most severe” bowel impactions Barnhill had seen in his 20-plus years of being a doctor.

He noted that witnesses had called Esco’s condition “gravely ill” and “critically ill” when she arrived at Marshall Medical Center. She had a bowel impaction and had more pill fragments in her bowels than normal. Her colon was filled with formed stool, meaning the stool had been in the bowel long enough to become solid. Gas in the colon was consistent with this.

Esco had a “surgical abdomen” and was no longer a candidate for manual disimpaction. Blood clots had formed.

Just a few days earlier, Esco’s husband, Don, thought he would be taking her home soon. Barnhill had set a program to deal with Johnnie’s constipation problems. Evidence showed that the staff of EDCC knew about the problems: Don had pestered staff, Muni likening him to a gnat; Don and Johnnie’s daughter, Judy Eyolfson, spoke with Palmer personally. “What more do you need?” Muni asked the jury. “Bullhorns?”

There were also clerical errors on the medical charts, showing bowel movements that, according to expert testimony, very likely did not happen. Physical therapy was given, the charts say, but testimony was that Johnnie Esco was lethargic and hard to rouse that day.

Palmer did not investigate any of the problems, whether with Esco or complaints about working conditions. It was her responsibility to do so, Muni said.

On the matter of criminal negligence, Muni noted that an order to send Esco to Marshall a day earlier was rescinded. There was no need for the pain she was put through, either.

“Was all of this an accident?” Muni asked. “No.”

Defense attorney Patrick Hanly said that his defense used the government’s own case. “You don’t need to look any further than Dr. Barnhill,” he said — a witness for the prosecution.

Barnhill found no problems with EDCC, did not suspect elder abuse and sent more patients to EDCC after the Esco incident than before.

A number of the prosecution’s witnesses were mandatory reporters of elder abuse, yet none of them filed a 341 form, Hanly said.

He pointed out that even with home care from her husband and at Marshall, Esco would still get impacted and have to be manually disimpacted. Was there abuse or neglect there? None was reported.

“The prosecution made a big show of all the medications,” Hanly said, referring to Barnhill’s program to keep Esco from being constipated. “This case is not about medications.” He said the prosecution was trying to get the jury to focus on how Palmer knew something was wrong and did nothing, but how was she to know when the charts showed everything was fine? Palmer, he said, was being held to a higher standard of elder abuse than either Don Esco or Marshall Medical Center, with Dr. Kathryn Locatell describing Marshall’s care as falling below the standard. “But they are not here, nor should they be — they did nothing wrong,” Hanly said.

There was a chain of command at EDCC, with supervision and training — multiple staff members from the time Esco was there testified as such. If staff members didn’t do their job, they had more training. And more. And if they still didn’t do the job correctly, they were fired. Both Rebecca Smith and Donna Eileen Pielin testified they had training while working at EDCC. Patty Bach testified she held many training sessions.

The staff was intimidated by Palmer because she was so involved in this, Hanly said. “Is that somebody not supervising? Is she sitting in her office eating bonbons?” She was intimidating because she expected staff to do their jobs, he said. It was not her job to look at patients.

A state audit every year relicensed the facility, even after the Esco incident, Hanly said. Smith confirmed that Palmer wanted residents treated well.

Pielin, meanwhile, was not a credible witness. She didn’t talk about calling Palmer about the rescind order until after Palmer mentioned it. This, he mentioned, was the only time a transfer order had been rescinded, Hanly noted. Why would Palmer not want to send Esco to Marshall? Pielin couldn’t explain. “It was a big, bold lie,” he said. Phone records showed Smith called Dr. Amrit Singh, the on-call doctor, three times on March 5. But Pielin didn’t call, as she said she did, on March 6, or March 5. “If the calls happened, we would have the records.” But Pielin was afraid of losing her job, and the Department of Justice was snooping around, so she blamed Palmer. Pielin only mentioned it after four interviews, and didn’t mention it on notes to herself. And “whipping her wig off” during testimony was a simple play at the jury’s emotions, he said.

Finally, the paid expert, Locatell, did not agree with Dr. Frank Housel and Barnhill’s assessments. “That’s the definition of reasonable doubt,” Hanly said, calling Locatell a “Monday morning quarterback” as, unlike the other two doctors, she did not treat Esco.

“Bad things happen to old people,” Muni said, starting his rebuttal. “That’s what Mr. Hanly wants you to think. No, they don’t.”

Despite EDCC being “a skilled nursing facility. Skilled. Nursing. Facility,” Esco did not receive proper care, Muni said. Despite her husband and daughter pestering, including talking to Palmer — “Fat load of good that did.”

There was a lack of appropriate nursing. “The buck stops here,” Muni said, pointing to Palmer. At home and at Marshall, the end result was something was done — disimpaction.

Taking a tape measure out, Muni showed just how large the diameter of Esco’s rectum was due to impaction — 10 cm. A normal rectum is a third of that, he said.

Locatell, unlike Barnhill and Housel, has a “huge practical background in recreating what happened,” along with being an expert in the administration of skilled care facilities. There could have been a “liquid slurry” but not a real bowel movement, which Locatell noted “happens a lot” in the elderly, Muni said.

“(Palmer’s) the head of nursing, she is supposed to know,” he said. If she missed Don Esco, Judy Eyolfson spoke with her directly.

A majority of the jury remained unconvinced by Muni.

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