Baby in a Diaper

Representing Orlando, Tampa, Miami and Nearby Areas of Florida

Ann Wolbert Burgess and Melvin B. Wright

Unattended births, also called precipitous deliveries, have occurred for centuries, but in contemporary times, midwives, nurses, and physicians have lent their assistance in the delivery of a baby. That said, there are often times when the mother is unable to reach a birthing center or obstetrical unit and someone else is called upon to assist such as the baby’s father, emergency medical technicians, firefighters or police. And there are times when a young woman, not wanting to reveal a pregnancy, will deliver a baby alone. But rarely is there an unattended birth in a nursing home and where no one, including the mother, was aware of the pregnancy. The following forensic case describes such an unattended birth, identifies the criminal and civil aspects that were involved and outlines implications for nursing.

The case

Around 11:30p.m. on January 13, 2001, a certified nursing assistant working at a nursing home was paged to go to the bedside of a 35-year-old female resident. The nursing assistant testified at her deposition that she saw blood, feces, and vomit everywhere and as she rolled the resident onto her side, she could see the head of a baby through the leg of the woman’s diaper. After pulling at the diaper, the baby popped out on his face in the feces. Another nursing attendant helped to cut and clamp the cord, wash and wrap the baby in a warm towel, and place oxygen to his nose. A tubefeeder syringe was used to clear the baby’s airway and the baby began to make sounds and cry. The mother and baby were then transported to a local hospital where the placenta was delivered and they remained under nursing and medical observation.

It was subsequently learned from nursing home records that the mother (Ms. Doe) was a single 33-year-old telephone operator when she was admitted to the nursing home in October 1997. She had suffered several CVA’s as a result of hypertension and sickle cell disease. There was a left hemiparesis with contractures of the left hand wrist. Admission diagnoses were status post CVA, hypertension, obesity, and anemia. Medications included antihypertensives, antiplatelets, heart failure medicines and an antidepressant. The admission nursing assessment noted her weight at 200 pounds, She was alert and knew her name. She required total nursing assistance for activities of daily living and a wheelchair for mobility.

Ms. Doe told investigators that on 1/13/00, at about 2300 hours, she began having intense abdominal pains (that she thought was gas), that one of the nurses checked on her and discovered she had delivered a baby boy. She stated she was not aware of being involved in any sexual activity since arriving at the nursing home nor any idea how she became pregnant. In a later interview, Ms. Doe told an investigating officer that she had felt something hard in her stomach for several months, however, she did not complain to health care officials or advise any family members. She stated that female nurses or assistants cared for her and that only on a few occasions would a male assistant assist her to the bathroom.

The 5 pound baby was believed to be at term and was carefully monitored and kept on oxygen as he was born stained with meconium amniotic fluid and feces and may have ingested or inhaled in his lungs some of the matter. It was unknown how long the baby was born before being discovered by the nursing assistant.

Was a crime committed? Was this nursing home patient raped? The critical question as to whether or not this was a criminal case rested on the identity of the father of the baby and his relationship (if any) to Ms. Doe. Visitor records and home visits were scrutinized. Nursing home staff, anxious to prove the father was known to Ms. Doe, provided written affidavits that “sometime around Easter” Ms. Doe left with her family (a 17 year old daughter and female cousin) for a few days.

Police investigation was extensive over a ten-month period. Eventually, a nursing assistant was named as a possible suspect and police obtained saliva from the baby and the suspect for DNA testing. Initially the suspect denied any contact with Ms. Doe but with the results of the DNA matching him to the baby, he was placed under arrest. He waived his rights to a lawyer and in a statement to police, he stated that sometime around March 2000 he was working at the nursing home and had the opportunity to meet Ms. Doe. According to the suspect, he said that Ms. Doe said that she liked him, that she was attracted to him, that she hadn’t had sex in a long time, and that she wanted to have sex with him. The nursing assistant stated he assisted Ms. Doe in removing some of her clothing and she positioned herself in her wheelchair near the edge of her seat and that he had sex with her and that it was consensual. The nursing assistant was arrested and charged with sexual battery upon a mentally handicapped person. He made bail and left the country when he learned he was facing a 15 year sentence. However, after the civil trial settled, he was located and stood trial. Before a jury verdict was reached, he agreed to the plea bargain of 15 years. A condition of his release stated he must return to his country of origin.

Forensic Issues

  • Competency — In a legal matter, competency refers to the ability to comprehend and respond appropriately to questions and issues at hand. In cases of cognitively compromised persons, competency is an important legal issue. In this case, Ms. Doe had left-sided paralysis, was wheelchair bound, had memory and speech difficulties, and was depressed. About one year after the birth of her baby, a judge declared her incompetent, legally, and appointed a guardian, after a panel of physicians examined her. While there was no appreciable change in her condition over that year, mentally or physically, she had not been declared incompetent by any judicial forum at the time of the sexual assault or sexual intercourse. Once it was determined that a caregiver was the father of the baby, the issue of consent was moot. Even the identified caregiver admitted that staff were not permitted to have sexual contact with residents, a common institutional policy. If he had stood trial, his attempt to place blame for the sexual motive on Ms. Doe would be strongly argued with the contemporary literature on sex offender dynamics and motivation.
  • Liability — A civil suit seeks money to compensate the plaintiff for mental anguish. The defense took the position that, because she was legally incompetent, she, therefore, was legally incapable of recognizing the gravity of her plight and that of her child and therefore suffered no emotional (pain and suffering) damages. She also had denied in testimony having any fear of males or other emotional damages typical of sexual abuse or rape.

    Plaintiff’s position was that though legally incompetent, she was indeed capable of suffering mental anguish from knowing that she could not raise and care for her son, from knowing that he would soon learn that he was the product of an illegal sexual act, and from knowing that he would suffer from emotional pain and depression as a result as he grew up.

    State law did not allow the collection or award of economic cost of raising a basically healthy child (there had been no diagnosable brain damage or other impairment on the part of the baby) when the pregnancy was the result of negligence of a third party. State law also disallowed any pain and suffering claim by the child for his “wrongful birth”. This was not unusual to the particular state, as most states disallow such civil damages by reason of the public policy that courts must recognize life, any life, as a blessing, not a curse.

    Thus, the only damages were non-economic for emotional pain, suffering and mental anguish on the part of the mother. There was the potential for punitive damages designed to punish the corporate operator of the nursing home if the jury found the negligence of the staff to be so reckless and outrageous as to amount to an intentional violation of her rights and safety.

The case was prepared for trial. Experts were retained to opine on two areas. For the first area, liability, a nursing home administrator was retained to opine on nursing home standards.

For the second area of emotional pain and suffering, a clinical specialist in psychiatric nursing with expertise in rape trauma was retained to opine on the failure of the staff maintaining nursing practice standards and on the emotional damage caused to Ms. Doe from a rape and unattended birth. For this opinion, the nursing expert reviewed nursing records and interviewed Ms. Doe, her son, and guardian. At trial, she would testify as to how Ms. Doe demonstrated or exhibited emotional damage regarding herself and her child and the future problems that could cause additional suffering. She would also testify as to nursing standards using the American Nurses Association published Standards of Nursing Practice for all nursing specialties. In this case, standards were breached in terms of the nursing home failing to provide a protective environment, failing to document and chart the menstrual cycles or note the enlarging abdomen of the resident, and failing to detect the pregnancy depriving the mother and fetus from prenatal care.

The case was settled out of court shortly before trial. Trusts were set up with the settlement money to provide for the mother and child. For Ms. Doe, the money can be used to pay for such recommended services (not currently provided) as a companion, counseling, music therapy, or transportation to visit with her son and family. For the son, money can be used to help with expenses for schooling and other activities to assure him of a head start in life. When Ms. Doe dies, the remaining money will go to her heirs.

Nursing Implications

The nursing implications of this case revolved around prevention, identification, and treatment of vulnerable patients.

Preventing the sexual abuse of patients falls under the nursing standard of providing for the safety of patients. Agency policy is clear on the rights of patients to be free from intentional sexual injury. In this case, nursing supervisors did not follow through on investigating the rumors surrounding the male attendant. Whistleblowing is a troublesome issue for some staff, that is, reporting inappropriate staff behavior. In this case, the alleged offender had a reputation at the nursing home for being a “Don Juan”. Despite his marriage (to another staff member), he was rumored to have sexual relationships with other staff and with patients. This nursing home had a unit for young AIDS patients and it was rumored that he also had AIDS. Whether or not the rumors were true, his behavior with patients should have been carefully scrutinized. In his interview with investigators, he only fully confessed when he was confronted with the results of the DNA testing. In this case as well as all situations, there needed to be zero tolerance for staffs’ sexualized talk and behavior with patients as well as to staff and visitors.

Identifying sexual abuse in vulnerable persons is critical because such persons depend upon others for daily care: the young, the elderly, the handicapped, and the mentally retarded. There are three methods of identifying sexual abuse: verbal disclosure, physical or forensic evidence, and behavioral changes. In this case, there was no outcry or report by Ms. Doe or any staff member. She, herself, noted changes in her body but did not tell anyone (and no one asked or observed). Physical changes should have been noted by staff, and despite the continuing medication order for an antidepressant, there were no noted behavioral indices of fear of males, withdrawal from usual activities, sad or fearful affect or isolation that might have provided a critical clue.

Detecting undisclosed pregnancy is a nursing responsibility. Any institutionalized mentally or physically challenged female of childbearing age is at risk for being impregnated. Safeguards are usually in place for such detection including monitoring of male staff and visitors, recording of menstrual cycle in progress notes (and when the cycle is missed), recording of common signs of nausea, weight gain, need for larger clothing, etc.

Because the dynamics of sexual exploitation of vulnerable females involves pressure, sex, and secrecy, one can never assume that a pregnancy results from one act of sexual intercourse. More likely than not, in cases of vulnerable persons, the female would be repeatedly pressured into sex and then forced or coerced to remain silent. With such dynamics, it is not unusual to see a victim deny sexual contact with the offender, as was the case with Ms. Doe. To learn the full extent of the sexual exploitation would require developing a trusting and long-term counseling relationship with Ms. Doe.

Why was the pregnancy not detected? No one had detected the pregnancy including nursing home staff, the nurse practitioner, physician, and family. Care team monthly records record the abdomen as soft and nontender from May through December. This observation implied staff either did not know how to assess or neglected to assess the developing firmness of a pregnant abdomen. A November entry briefly notes a gastroenteritis resolved. The main health concern was her obesity for which she was on a restricted diet. Her monthly weight varied from 190 – 201. Her post-partum weight was 183. There was an order “to check monthly for menstrual cycles about the 14th of each month”. Review of progress notes indicates the only record of monthly cycles to be on 12/25/97, 3/15/99 and 4/30/00. No one questioned the lack of entries over the entire 3 years and especially for May through January 2000.

Treatment for victims of sexual assault.

Minimum requirements for agency protocols for the treatment of sexual assault include immediate examination by a sexual assault nurse examiner usually at a hospital emergency department and referral for follow-up counseling for rape trauma. If an agency does not have such a protocol, there should be a referral to a forensic nurse consultant for development of a plan. Implementing such a plan indicates the agency has concern for the safety and protection of its patients, knowledge of the seriousness of the situation and clear intent to begin to try to mitigate the trauma caused by the act.

In conclusion, although some nurses might believe this is a highly unusual obstetrical case, forced pregnancies in mentally handicapped women are reported periodically in newspapers. It is unusual that nursing staff missed the pregnancy and an unattended birth occurred. Nurses need to be aware that mentally handicapped women of child bearing age in residential settings can be sexually assaulted, that they need special protection from sexual predators, and if they are sexually abused, they deserve care, treatment, guardianship, and legal representation. Nursing administrators and supervisors need to be vigilant of inappropriate male staff behavior and alert to the maintenance of a high level of nursing standards and practice.

Ann Wolbert Burgess, RN, DNSc. is Professor of Psychiatric Nursing at Boston College School of Nursing, Chestnut Hill, MA

Melvin B. Wright, Esq. is Chairman of the Nursing Home Litigation Group with the law firm of Morgan Colling & Gilbert in Orlando, Florida.