text: Judge tosses manslaughter case for Lynnwood medical worker | HeraldNet.com
  Judge tosses manslaughter case for Lynnwood medical worker
  No jury would find Sunkyong Oh, a nursing assistant, guilty of causing a cancer patient's death, a judge ruled.
  LYNNWOOD — A Snohomish County judge has dismissed manslaughter charges for a nursing assistant accused of causing a patient's death at a Lynnwood rehabilitation center.
  The state Attorney General's Office charged Sunkyoung Oh with felony negligence leading to a death for failing to follow a care plan for a cancer patient, identified in court papers as P.J., who fell in a bathroom at ManorCare on Feb. 2, 2018.
  Superior Court Judge Jennifer Langbehn determined no jury could find Oh guilty of second-degree manslaughter beyond a reasonable doubt, even when looking at the case in the light most favorable to state prosecutors, according to an order signed in late September.
  The judge found Oh's actions, as alleged by the state, were not perfectly in line with the care plan — but the state's case contained logical errors; any alleged missteps did not amount to criminal negligence; and any errors made by Oh "did not constitute gross deviations of care and no rational trier of fact could find that they did."
  Oh, 58, a certified nursing assistant since 2016, often helped rehabbing patients to the bathroom, among other mundane duties like cleaning spilled food. She was well liked by all of her fellow employees, her defense attorney Patty Eakes said.
  "People like Sun are really needed," Eakes said. "It's really hard to get people who want to do that job. She enjoys taking care of elderly people. … Everybody I've ever spoken to who has worked with her, they wish that they could clone her, and have many other people like her working in their facilities."
  P.J., 73, had just endured a round of chemotherapy for a blood cancer, multiple myeloma. She was admitted to ManorCare on Jan. 30, 2018. She had been taking medication to prevent clots that made her especially vulnerable if she fell, according to the state's charges.
  To help her to move, her care plan advised staff to use a gait belt or wheelchair. According to Oh's report in court records, she offered to help P.J. with a bedside commode on the evening of Feb. 2, 2018, but P.J.'s son encouraged his mother to walk to the bathroom, "so she could get better quicker to go home." So Oh agreed to walk her a few feet to the toilet, and the son left the room to give her privacy. The original charges did not mention P.J. used a walker. However, in her ruling, Judge Langbehn found that fact to be undisputed.
  The state also did not dispute that P.J. had been using a walker throughout the preceding weeks as she underwent treatment at the University of Washington Medical Center, "including … to ambulate to the bathroom." She had gone to a physical therapy session one day earlier using a walker, and a doctor gave her a walker just hours before she fell.
  Assistant Attorney General Erika Nohavec argued Oh "grossly deviated" from care standards in eight ways: not using the bedside commode as the care plan required; transferring P.J. from her bed to her walker with no gait belt; allowing her to use a walker at all; helping her to walk a few feet to the bathroom without a gait belt; transferring her to the toilet without a gait belt; supposedly not using an elevated toilet seat; moving her back from the seat to the walker without a gait belt; and allowing her to stand to wash her hands, meaning she wasn't bracing herself with the walker at the bathroom sink — where P.J. collapsed.
  Four of those allegations had to do with a gait belt. Yet the state conceded in an oral argument that a gait belt may not have made a real difference anyway, given that Oh was 5-foot-2 and roughly 110 pounds, according to the court records. P.J. weighed about 215 pounds.
  As for the commode, the judge found it to be illogical that a commode was "required," if an elevated toilet seat also was listed as appropriate for P.J. The state argued "there is no evidence" Oh had P.J. use an elevated toilet seat. The judge noted that, inversely, there was no documented evidence that Oh did not have her use an elevated seat — and the burden of proof is the state's responsibility.
  Nurses gave differing accounts of what Oh told them after the fall: One wrote that she said P.J. hit her head on a grab bar. Another recalled Oh told her the patient fell onto her bottom. There were no signs of outward trauma on the patient's head, such as a cut or bruise. Staff checked P.J.'s vitals. Both the patient and her son "refused to go (to the) hospital, (and) stated (they) wanted Xray to be done here," according to a nurse's notes in her chart.
  That night, P.J. became sick with a terrible headache, according to the charges. Two CT scans showed she had a "very large" subdural hematoma. Oh's defense attorney, Eakes, said Friday that the state withheld critical evidence that could have benefited the defendant, showing at least one doctor had informed investigators there was no way to know if the hematoma resulted from the fall or not.
  P.J. died the following evening, Feb. 3, 2018, at Harborview Medical Center.
  The state Department of Health took no action for two years, until notified by the state Office of the Attorney General that manslaughter charges were being filed in February 2020.
  Oh lost her job. She was unable to travel to Korea to see her dying mother, Eakes said.
  On Sept. 11, state prosecutors filed a motion seeking to find out how Oh could afford a private attorney and four defense experts who typically charge thousands of dollars each for their knowledge and testimony. The state cited tax records showing Oh made less than $40,000 in 2018 and 2019 as a CNA, and had collected less than $11,000 in unemployment benefits in 2020.
  "This raises the question of whether a third party is funding the defense, and more specifically, whether ManorCare or its affiliates is providing the funds," according to the motion.
  The insinuations were offensive, Eakes said.
  "By her estimation she's poor, and therefore she shouldn't be able to have decent counsel?" she said.
  Eakes, a former prosecutor herself, said she never would have filed such a request when she worked for King County.
  "It is not hard to see what is going on here," Eakes wrote in court papers. "On the eve of the Knapstad (dismissal) hearing and after learning from the defense's experts that it will be unable to prove that defendant Sun Oh's actions caused the patient's death, the state wants any source of funding beyond Sun's personal earnings taken away in an effort to force her to plead guilty."
  Judge Langbehn denied the request for financial records, days before dismissing the case altogether on Sept. 28.
  "The Attorney General's Office takes elder abuse cases very seriously," office spokesman Dan Jackson said Friday in a statement to The Daily Herald. "In this case, a patient died. While we respect the judge's decision, we disagree. This was a tragic, avoidable incident."
  The lead prosecutor on the case, Nohavec, specialized in elder abuse for the Pierce County Prosecutor's Office before becoming an assistant attorney general.
  In response to followup questions about why the state pressed criminal charges, Jackson added: "The State had experts who opined that the injury was a result of a recent, acute (sudden) injury consistent with a ground level fall. The only incident close in time to the injury was the ground level fall and there was no intermediary event between the fall and the victims death. … Again, the Attorney General's Office brought this case because we take allegations of elder abuse very seriously."
  In the defense's view, the state was misguided from the start.
  "The Attorney General ignored … evidence, failed to properly investigate the case and steadfastly continued this baseless prosecution," Eakes wrote to The Herald. "The AG's decision to pursue this case is inexplicable in light of the underlying facts and because Ms. Oh is uniformly lauded as an excellent, compassionate and caring CNA. In fact, she is exactly the type of person we need to do this important work. We hope that the Court's ruling discourages the AG from pursuing other health care providers unfortunate enough to have a negative patient outcome on their watch."
  The judge dismissed the case without prejudice, meaning charges could be filed again if new evidence emerges. The state also has 30 days to appeal the dismissal. Eakes doubts that will happen.
  "These are not issues they can fix in the evidence," she said.
  Meanwhile, P.J.'s family had sued ManorCare for malpractice in 2019. Oh was not named as a defendant. After she was charged, a judge paused the civil case, preventing Oh and another staffer from being deposed until late October.