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People v. Anderson

Court of Appeals of Michigan

October 15, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
ERIC ANDERSON, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
JASMINE FERRER, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
CARY GERENCER, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
LOLITTA SHANTILLIA JACKSON, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
EMINA KAHRIMAN, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
DORIS PENNY, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
SEQUOYAH LASHAWN MARIE THOMAS, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
TYISHA MONIKA TOLIVER, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
ROCONDA J. SINGLETON, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
SHERYL ANNE HILLYER, Defendant-Appellee.

          Kent Circuit Court LC Nos. 17-010295-AR, 17-010296-AR, 17-010297-AR, 17-010298-AR, 17-010299-AR, 17-010300-AR, 17-010301-AR, 17-010302-AR, 17-011547-AR, 18-000250-AR

          Before: Sawyer, P.J., and Borrello and Shapiro, JJ.

          SHAPIRO, J.

         Defendants are former nursing aids or assistants charged with intentionally falsifying medical records, MCL 750.492a. The district court declined to bind over defendants, concluding that the "member location sheets" that they allegedly falsified were not "medical records" as that term is defined by the Medical Records Access Act (MRAA), MCL 333.26261 et seq. The circuit court agreed and affirmed the district court's decision to dismiss these 10 consolidated cases. The prosecution appeals by leave granted, arguing that the lower courts erred in holding that the member locations sheets were not medical records. We agree. The member location checks that defendants were required to perform were part of the health care provided to the patients by the facility that employed defendants. Because the member location sheets constitute recorded information pertaining to that care, they are medical records under the MRAA, which we conclude must be read in pari materia with MCL 750.492a. However, we also conclude that to convict defendants of intentionally or willfully falsifying medical records in violation MCL 750.492a the prosecution must prove that they knew that the member location sheets were medical records. We remand to the district court so that it can determine whether the prosecution can establish probable cause on that element.

         I.

         Defendants were certified nurse aides (CNA) or certified nursing assistants (CENA)[1]employed by a staffing company and assigned to the Grand Rapids Home for Veterans (GRHV), a residential and skilled nursing facility for military veterans and their spouses, known as members. Many of the relevant patients suffered from serious psychiatric problems or dementia and as a result might elope or create a risk to themselves or others in the facility while unattended. CNAs working at the GRHV were required to perform member location checks for the skilled nursing units at least every two hours to verify that the members were present in their room and, if not, to verify that the patient was located elsewhere in the unit.

         Member location sheets were a simple grid. The patients' names were listed vertically and the times at which checks were to be performed were listed horizontally. Thus, for each patient listed there was a box to be completed reflecting whether or not a location check was performed for that time period. Each time a CNA performed a member location check, he or she was to place their initials in the box for that patient and that time. As long as a CNA laid eyes on a member, they could initial the appropriate box on the member location sheet. The parties stipulated prior to the preliminary examination that the member location sheets were not maintained in a member's personal medical chart, but instead in a central location. The parties also stipulated that the GRHV destroyed the location sheets after six months. Under the Public Health Code (PHC), MCL 333.1101 et seq., a health care facility must retain a patient's records for at least seven years. MCL 333.20175(1).

         The member location sheets at issue in this case were filled out completely, appearing to show that all member location checks were completed. However, during a performance audit of the GRHV, the Michigan Office of Auditor General determined on the basis of video surveillance tapes that defendants had not performed certain location checks as reported in the corresponding member locations sheets.

         On the basis of this discovery, the Health Care Fraud Division of the Attorney General's Office opened an investigation into the GRHV. As a result of this investigation, each defendant was charged with one count of intentionally placing false information in a medical record or chart in violation of MCL 750.492a(1). That statutory provision provides that

a health care provider or other person, knowing that the information is misleading or inaccurate, shall not intentionally, willfully, or recklessly place or direct another to place in a patient's medical record or chart misleading or inaccurate information regarding the diagnosis, treatment, or cause of a patient's condition. [MCL 750.492a(1).]

         The statute goes on to provide, "A health care provider who intentionally or willfully violates this subsection is guilty of a felony." MCL 750.492a(1)(a).

         Te preliminary examination was held over the course of three days. Relevant to this appeal, the GRHV's director of nursing, Paula Bixler, testified to the varying levels of cognitive impairment and physical restrictions of the members in the skilled nursing units. Bixler explained that the purpose of the member location checks was to insure the member's health, safety, and well-being; specifically, to ensure that members were not wandering or had eloped off the unit. She testified that the purpose of the member checks was not specifically to look for member incontinence, but a CNA would be expected to address such a situation if they noticed it. Also, if a CNA noticed that a member had fallen or was experiencing a medical emergency, they are required to alert a nurse.

         Following the preliminary examination, the district court found probable cause that defendants were health care providers, that the information they were recording was "regarding treatment of these patients' condition," and that "defendants knew that the information that they supplied was misleading or inaccurate." However, the district court did not "find that there's been any evidence to suggest that these location sheets are medical records." In reaching that conclusion, the court considered the definition of medical record found in the MRAA, which provides that a medical record "means information oral or recorded in any form or medium that pertains to a patient's health care, medical history, diagnosis, prognosis, or medical condition and that is maintained by a health care provider or health facility in the process of caring for the patient's health." MCL 333.26263(h)(i). The district court said it was arguable whether member location sheets "pertain to the member's health care." But the court noted that a medical record must be maintained by a health care provider or facility, and the testimony at the preliminary examination was that the member location sheets were not treated as medical records by the GRHV. The district court also indicated that the prosecution failed to show probable cause that defendants intentionally or willfully placed information in a medical record.

         The prosecution appealed to the circuit court, which affirmed the district court's decision, agreeing with the district court that the MRAA's definition of medical record was applicable to MCL 750.492a(1). The circuit court concluded that the member location sheets did not meet that definition because they contained the names of multiple members, were stored in a central location and were not maintained for seven years as required by MCL 333.20175. The prosecution moved for leave to appeal to this Court in each case. We granted the application for leave to appeal and consolidated the 10 cases.

         II.

         A.

         The prosecution argues that the lower courts erred in determining that the member location sheets were not medical records ...


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