Ex-prosecutors unsure if nursing home deaths involved crimes

FILE- This Sept. 13, 2017, file photo, police surround the Rehabilitation Center in Hollywood Hills, Fla. Nine elderly patients died after being kept inside a nursing home that turned into a sweatbox when Hurricane Irma knocked out its air conditioning for three days, even though just across the street was a fully functioning and cooled hospital. Still, even with those facts, it's far from clear whether the deaths will result in a criminal prosecution. (John McCall/South Florida Sun-Sentinel via AP, File)

HOLLYWOOD, Fla. (AP) — Nine elderly patients died after being kept inside a nursing home that turned into a sweatbox when Hurricane Irma knocked out its air conditioning for three days, even though just across the street was a fully functioning and cooled hospital.

From the perspective of Florida Gov. Rick Scott and relatives of those at the Rehabilitation Center at Hollywood Hills, criminal charges are warranted. But under Florida law, a prosecution might be difficult. Two of three ex-state prosecutors contacted by The Associated Press had doubts as to whether Dr. Jack Michel, the home’s owner, or any of his employees will be charged.

All agreed that any criminal prosecutions will hinge on whether the nursing home staff made honest mistakes or were “culpably negligent.” Florida defines that as “consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.”

Hollywood police and the state attorney’s office are investigating.

The home has said it used coolers, fans, ice and other methods to keep the patients comfortable — and that might be enough to avoid prosecution.

“There is a difference between negligence, which is what occurs when you are not giving a particular standard of care vs. culpable negligence,” said David Weinstein, a former state and federal prosecutor now in private practice. “So if they are doing everything humanly possible given the circumstances and this all still happened it may be negligent and provide the basis for a civil lawsuit, but not enough for criminal charges.”

Retired University of Florida law professor Bob Dekle, who prosecuted serial killer Ted Bundy as an assistant state attorney, said he doubted charges would be brought.

“I would rather be a defense attorney on this case than a prosecutor,” Dekle said. “There are some cases that are better tried in civil court than criminal and this might be one of them.”

Former U.S. Attorney Kendall Coffey disagreed.

“Given the magnitude of the tragedy and the apparent availability of a hospital 50 yards away, prosecutors are not going to accept that this was an unavoidable tragedy,” he said.