Jury selection begins for 5 health care workers charged in death of Medford nursing home patient

Two and a half years after a Medford nursing home resident died, a group of health care workers is about to go on trial in Riverhead to answer charges that their failure to act led to the woman's death and the subsequent attempt to cover it up.

Jury selection begins this week for five of the nine Medford Multicare Center for Living employees who are charged with various crimes in the death of Aurelia Rios, 72, of Central Islip.

State Supreme Court Justice John B. Collins divided the defendants into two groups since there is no courtroom big enough to accommodate all nine and their attorneys. To save time, the judge will have one trial but two juries, a rare process but one that has been used.

Kethlie Joseph, 63, a respiratory therapist from Brentwood, will have her own jury because she is the only one charged with criminally negligent homicide.

Christine Boylan, 50, of Mastic, former director of respiratory therapy, who was not on duty the night Rios died but has been charged with covering up Rios' death, and three nurses -- Victoria Caldwell, 52, of Medford, Marianne Fassino, 54, of Shirley, and Kimberly Lappe, 33, of Southold -- will have a separate jury. The nurses and Joseph ignored audible and visual signals that indicated Rios' pulse and blood-oxygen level were low or nonexistent, prosecutors said.

Jury selection for Joseph begins Monday, followed by the selection of the second jury. Opening statements are scheduled to begin next week. All five have pleaded not guilty.

Defense attorneys said that although Judge Collins did his best to separate the defendants in a manner that ensures each person gets a fair trial, a double jury with five co-defendants raises some concerns.

"Five different defendants, with five different legal arguments, and five different sets of facts and evidentiary issues can lead to confusion," said William Kephart of Garden City, who represents Boylan. "You hope the jury does not misapply certain evidence against one co-defendant to other co-defendants because that would be unfair."

Alleged events detailed

Prosecutors said Rios, who had a tracheotomy, died in the early morning hours of Oct. 26, 2012, nearly a month after she was admitted to the facility's ventilator unit for rehabilitation. The day before Rios died, they said, there was an order by her doctor, Dr. Igor Gutnik, instructing the night respiratory therapist to attach Rios to a ventilator through her tracheal tube, and Gutnik's order was available to the medical staff. Prosecutors said Joseph didn't read Gutnik's order and didn't attach Rios to the ventilator.

Without sufficient oxygen, prosecutors contend, Rios' pulse rate and oxygen level in her blood dropped below what her doctor considered safe, and the equipment that monitored those vital signs activated audible and visual alarms. For nearly two hours, from 1:40 to 3:36 a.m., prosecutors said, the nurses and Joseph ignored those warnings, which were sent to pagers and terminals set up throughout the ventilator unit.

Jurors will be asked to determine whether Joseph failed to attach Rios to the ventilator; whether Joseph and the nurses ignored audible and visual alerts and later hid their roles in her death; and whether Boylan covered up Rios' death by lying to the nursing home's risk manager and to a state Department of Health investigator.

If mistakes were made, the workers should be brought before a civil court, where medical malpractice cases are litigated, said Jonathan Manley of Hauppauge, who represents Joseph.

"The attorney general is trying to criminalize behavior that he believes was done improperly," Manley said. "In the medical profession, to criminalize this type of behavior is a very dangerous precedent to set."

A spokeswoman for Attorney General Eric T. Schneiderman, whose Medicaid Fraud Control Unit brought the criminal charges, declined to comment.

Challenges for prosecutors

One of the challenges prosecutors face, legal experts said, is Rios' frail health. Rios' doctor told prosecutors that Rios had suffered from respiratory failure, obstructive sleep apnea, chronic obstructive pulmonary disease, and other illnesses. The other challenge, experts said, is establishing that the staff's failure to act caused Rios' death.

"There were too many ways she could've died. Without an autopsy, then you can't know, you can't prove it beyond a reasonable doubt," said Linda Fentiman, who teaches criminal and health law at Pace University School of Law.

These kinds of cases are difficult to win in criminal court, which has a higher burden of proof than civil court, though it's easier to establish a cover-up, said Alafair Burke, a former prosecutor and a professor of criminal law at Hofstra Law School. "Why would you hide an accident?" she said.

The trial, expected to last five to six weeks, will feature hours of surveillance video from the nursing home, and expert witnesses, including Dr. Michael Baden, a forensic pathologist and host of HBO's "Autopsy." Baden has testified at several high-profile cases, including the O.J. Simpson murder trial.

The remaining four defendants will stand trial once this one is completed.

Five defendants and the charges they face

Kethlie Joseph, respiratory therapist: Criminally negligent homicide, first-degree falsifying business records, endangering the welfare of an incompetent or physically disabled person, and two counts of willful violation of public health laws.

Christine Boylan, director of respiratory therapy: Two counts of first-degree falsifying business records, and willful violation of health laws for failing to report an act of neglect to New York State Department of Health.

Victoria Caldwell, nurse: Four counts of first-degree falsifying business records, and willful violation of public health laws.

Marianne Fassino, nurse: First-degree falsifying business records, endangering the welfare of an incompetent or physically disabled person, and two counts of willful violation of public health laws.

Kimberly Lappe, nurse assigned to care for Aurelia Rios the night she died: Three counts of first-degree falsifying business records, one count of endangering the welfare of an incompetent or physically disabled person, and two counts of willful violation of public health laws.