(Originally published in PULP)

We are a society whose order is built upon laws. Though there certainly is no guarantee of safety and quality of life, we generally can rest assured that the legal system will provide some recourse for victims and appropriate justice for those causing harm.

But things don’t always work out the way they should.

Last September 30, Betty Joyce Kuykendall, 62-year-old Pueblo resident ran a stop sign on Tejon Avenue, rolling 85-year-old William Dorough’s car with him and his two passengers, Katherine Waller, 75, and Spencer Waller, 19, inside.

Dorough was admitted to Parkview Medical Center the next day, and on October 27 died from complications from injuries related to the accident.

For this, Kuykendall was fined $100 and faces no further criminal charges.

So what happened? A number of things, actually. First, the Sheriff’s deputy handling the accident reported that no one was injured seriously enough at the time, following a medical exam, to warrant any charges related to bodily injury. Instead, Kuykendall was issued a ticket for failing to stop at the stop sign and the rest was left to the insurance companies to deal with.

Kuykendall’s lawyer advised her to plead guilty and to pay the fine. Her check was processed at the Colorado Department of Revenue on October 26, one day before Dorough died from complications related to the wreck.

The Pueblo District Attorney’s Office, which is responsible for determining if the initial charges were sufficient or if she should be charged with something like vehicular manslaughter, didn’t receive the Sheriff’s report of the accident until December 16.  By then it was too late to charge Kuykendall with anything further, as she was protected by the principle of double jeopardy as outlined in both the Colorado and United States constitutions, which ensures that a plaintiff cannot be charged twice for the same crime.

“By the time our office received the full report and evidence,” says Bill Thiebaut, Pueblo District Attorney, “and a copy of the summons and complaint, and the disposition of the traffic case, the defendant had entered a guilty plea to the traffic charge.”

In most cases, explains Thiebaut, “Our office would staff the case and determine if someone committed a chargeable offense. If it was determined that a defendant should be charged, our prosecutors seek justice with a charge or charges equal to the offense.” The problem is, at least in this situation, that it took two-and-a-half months for the paperwork to reach the DA’s office.

I wondered if this is a normal timeframe for processing the materials needed to determine appropriate charges. “It is not unusual that we receive reports after this length of time elapses,” Thiebaut says. “It takes time to put together the case.”

As for the injuries not being reported, Thiebaut states: “Apparently, the deputy sheriff did not know the extent of the injuries to the victim and issued a summons and complaint at the scene for a traffic violation.”

I asked Pueblo County Sheriff Kirk Taylor for his assessment of the incident, to which he said, “In reviewing the case, I have found that my deputies responded appropriately given the circumstances that they were faced with. This was a terrible tragedy and atypical when it comes to investigating and prosecuting an offender.”

According to the Sheriff’s report, the lack of reported serious injury is based on medical exams performed at Parkview Medical Center by a doctor and nursing staff. “When the parties from the accident were taken to the hospital,” says Taylor, “my deputy inquired with the hospital personnel whether or not the individuals had sustained injuries that would amount to ‘Serious Bodily Injury’ (SBI) as defined by statute. He was advised on the night of the accident that there was no SBI by both the doctor who examined them as well as several nurses.”

The Sheriff’s report details the nature of Dorough’s injuries, not discovered upon intake at Parkview the day of the accident, but identified the following day when Dorough returned to the hospital and was admitted for complications. His neck was fractured and required surgery that would fuse portions of his cervical spine together.

In the week following the surgery, Dorough’s condition worsened, ultimately requiring him to be intubated. He later had the tube removed but by then had “partial quadriplegia,” according to the report, “which meant William (Dorough) could move his extremities but did not have any strength.”

On October 27, medical staff recommended a second intubation, but Dorough’s family declined, citing quality of life issues. He died at 11:11 am later that morning.

Deputy Jonathan Post, the one reporting on the investigation for the Sheriff’s Department, questioned Dr. Rochelle Elijah, Dorough’s hospital physician, asking why the Sheriff’s Department was not told about Dorough’s injuries when he returned to the hospital the next day. Elijah said “she did not know,” according to the Sheriff’s report.

Asked also if Dorough’s death was directly linked to the accident, Elijah said it was. The report does not list any of the medical staff by name that examined those involved in the accident the day of the wreck.

Following Dorough’s death, Deputy Post and others from the Sheriff’s department returned to the scene of the accident, gathering further information about the scene, which then was forwarded on to the District Attorney. But since Kuykendall had paid her traffic ticket, the DA’s hands were tied.

So the DA’s office did what they could, given the information they were provided when they got it. The Sheriff ‘s Department issued the only reasonable ticket they could, given that attending doctors found no serious physical injury to any of the victims.

I asked Thiebaut if this kind of thing happens elsewhere, or if this was a freakish, isolated incident. “Yes, there is precedent,” he explains, “however, this does not come up as often as you might think. Most bodily injury, serious bodily injury or death cases follow the model procedure [where the person causing harm is charged with inflicting injury or death]. On rare occasions, however, this scenario does play out.”

In these cases, with double jeopardy shielding the would-be plaintiff from further criminal consequences, the only option for victims is to sue. According to Thiebaut, there is a civil case underway.

Incidentally, Betty Kuykendall has since been diagnosed with a neck fracture of her own from the accident and was scheduled to undergo surgery, according to the final report addendum included in the Sheriff’s file.

Parkview Medical Center and staff involved in the case may end up being the subject of civil action before all is said and done, but I was left wondering what kind of legal responsibilities the medical staff may have failed to meet. Could emergency room doctors and nurses face legal fallout for missing two serious injuries in two different people the day of the wreck, one of which was eventually related to a man’s death? And are they legally bound to report the injury to the Sheriff once it was discovered, considering an investigation was underway?

To be continued…

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