Case Summary for February 3, 2005

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Case Summary for February 3, 2005

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Thursday, February 3, 2005
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10:10 a.m. case
SC86306
State of Missouri v. Brandy Burrell
Buchanan County
Challenge to convictions for felony murder and child endangerment

In 1999, Brandy Burrell and Isaiah Washington, Sr., had a son. After Washington was arrested on drug charges in September 2001, Burrell's probation officer told her that Washington could not live with her. In October 2001, Burrell and her son, who then was two years old, moved to Cameron, Missouri. Later that month, they went on a trip to St. Joseph, Missouri, with Washington to visit Washington's mother. While at the mother's house, Washington became angry with his son and kicked him and slammed him to the floor. Later that night, the child bled to death from acute injuries to his internal organs. The state subsequently charged Washington with murder and Burrell with felony murder based on the predicate act of child endangerment. Following a bench trial, the judge found Burrell guilty of first-degree child endangerment and felony murder and sentenced her to respective terms of seven years and life in prison. Burrell appeals.

Burrell argues the court erred in overruling her motion for acquittal and in sentencing her for first-degree child endangerment. She contends the state failed to prove beyond a reasonable doubt either that placing her son in contact with his father would result in an "actual" risk to her son's life, body or health or that she knowingly created such a risk. Burrell asserts that, although the potential for harm exists when a victim comes in contact with the person who abused the victim, such harm is not certain to occur by the contact alone. Burrell argues that, absent sufficient proof of the underlying child endangerment felony, her conviction for felony murder also must be reversed. She contends the state failed to prove beyond a reasonable doubt that allowing her son to come in contact with his father was the proximate cause of her son's death. She asserts that the child's father's actions were an intervening cause in the child's death and that the father's actions were not a direct, naturally or reasonably foreseeable consequence of her action in allowing him to have contact with his son.

The state responds that the trial judge properly found Burrell guilty of both felony murder and first-degree child endangerment. It argues the state presented sufficient evidence that Burrell knew Washington was physically abusing their son in a serious manner. The state contends that, by placing her son in direct contact with Washington, Burrell knew she was creating a substantial risk to her son's life, body or health and that Burrell allowed her son to be injured fatally. The state asserts there was sufficient evidence presented that Burrell's act of placing her son in direct contact with the man who had repeatedly abused him in the past, thereby allowing him to be abused again, was the proximate cause of the child's death.

10:50 a.m. case
SC86110
Mark M. Tendai v. Missouri State Board of Registration for the Healing Arts
Cole and Greene counties
Challenge to discipline of medical license

In August 1997, the Missouri state board of registration for the healing arts filed a complaint against Dr. Mark Tendai, an obstetrician and gynecologist in Springfield, Missouri, for his prenatal care and treatment of two patients in 1992 and 1993. Following a February 1999 hearing, the administrative hearing commission in September 1999 found cause to discipline Tendai concerning his care and treatment of one of the two patients, who was an 18-year-old Medicaid patient expecting her second baby at the time she was Tendai's patient. She first saw him in April 1992. In October 1992, examination results showed the baby was not growing adequately. Tendai told his patient he suspected the baby had intrauterine growth retardation (IUGR) and that one possible consequence was early delivery. He advised her to see a perinatologist and have an amniocentesis test, but she did not follow his advice. An examination a little more than two weeks later indicated the baby had not grown at all. The patient agreed to have an ultrasound done at the hospital but still was reluctant to see a perinatologist. The patient never saw a perinatologist and, at the end of November 1992, she delivered a stillborn baby. The board conducted a disciplinary hearing in April 2000 and, the next month, ordered that Tendai's license be reprimanded publicly and suspended for 60 days. It also permanently restricted Tendai from ever practicing obstetrics in Missouri. In May 2000, Tendai sought review in the Cole County circuit court. Following extended litigation in the circuit court and in this Court, the circuit court in June 2004 issued findings of fact and conclusions of law affirming in their entirety the decisions of both the board and the commission. Tendai appeals.

Tendai argues the commission erred in finding that his medical license is subject to discipline for "incompetency," "gross negligence," "conduct harmful to a patient" and "repeated negligence" under section 334.100.2(5), RSMo. He contends this statute is unconstitutionally vague and, as applied by the commission, violates his rights to procedural due process. He asserts that the terms it uses are undefined or defined inadequately, are not terms of general knowledge or understanding, and provided him with no objective guidelines or standards for avoiding the prohibited conduct. Tendai argues the commission's legal conclusions involving Tendai's alleged failure to refer his patient to a perinatologist are not authorized by law; are arbitrary, capricious and unreasonable; involve an abuse of discretion; and are unsupported by competent and substantial evidence on the whole record. He contends the board failed to establish a standard of care for physicians not having available to them a medically appropriate referral alternative. He asserts that he did not make the referral because he was concerned that the only available perinatologist who would accept Medicaid patients would deliver Tendai's patient's baby before its lungs were mature enough to allow the child to survive. Tendai argues that the complaint before the commission did not allege that his conduct concerning one patient constituted repeated negligence and that, under Missouri law, repeated negligence cannot result from a physician's continuous course of conduct in treating a single patient. Tendai contends the commission failed to consider evidence properly admitted. He asserts that the board's order imposing discipline on his license and sections 334.100.2(5) and 334.100.2(25), RSMo, violate equal protection. Tendai argues the discipline he received was far more severe than that imposed on other physicians engaging in similar or more serious conduct. He contends the board's discipline was not related rationally to its objective of protecting the public. He asserts that sections 334.100.2(5) and 334.100.2(25) create differing classifications of physicians suspected of incompetence and establish different procedural rights based on this classification. Tendai argues the board's disciplinary order intentionally imposed disparate discipline against him that was harsher than that imposed on similarly situated physicians with no rational basis for the disparate treatment. He contends the board issued its disciplinary order without setting forth in its findings and conclusions any basis for the discipline, without following its announced procedure, without allowing him to demonstrate his competency pursuant to statutory procedure and without observing statutory procedural requirements. He asserts that the board unlawfully closed its disciplinary deliberations and that the discipline the board ordered was not based on competent and substantial supporting evidence.

The board responds that commission did not err in applying the disciplinary terms "incompetence," "repeated negligence," "conduct dangerous to a patient" and "gross negligence," under section 334.100.2(5). It argues this statute is not unconstitutionally vague and, as applied, did not violate Tendai's due process rights. The board contends the commission properly found that Tendai had violated the statute because his treatment of the patient violated the applicable standards of care. The board asserts that it did not err in disciplining Tendai's medical license as a result of the commission's findings. It argues these findings included a determination that Tendai presented false evidence to the commission to establish a defense. The board contends that its order disciplining Tendai's license was made based on lawful procedure; was authorized by law; was not arbitrary, capricious or unreasonably; did not involve an abuse of discretion; and was supported by competent and substantial evidence based on the whole record.