STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF STANLY 06 DHR 1431

Bobby Raborn
Petitioner
vs.
Office of the Chief Medical Examiner
Respondent / )
))
)))) / DECISION

On December 6, 2006, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Charlotte, North Carolina. On January 30, 2007, the undersigned ordered the parties to submit proposed Decisions. On February 14, 2007, the parties filed their respective proposed Decisions with the Office of Administrative Hearings.

APPEARANCES

For Petitioner: Rex C. Morgan

Baucom, Claytor, Benton, Morgan & Wood, P.A.

P. O. Box 35246

Charlotte, N 28235

For Respondent: Judith Tillman

Assistant Attorney General

North Carolina Department of Justice

P O Box 629

Raleigh, NC 27602-0629

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner:

1 Death Certificate of Kimberly Raborn

2 Report of Autopsy Examination

3 Report of Investigation by Medical Examiner

4 Curriculum Vitae of Eileen Keipper

5(c) Northeast Psychiatric and Psychological Institute Records

5(d) Psychological and Behavior Health Services Records

(Eileen Keipper)

6 Citalopram Excerpt from Toxicology and Disposition

of Chemicals in Man.

7 Article Citalopram Concentrations in Samples from

Autopsies and Living Persons

For Respondent:

1 June 30, 2006 letter from Dr. Deborah Radish to Rex Morgan

2 February 28, 2006 letter from Dr. Deborah Radish to Rex Morgan

STATUTES AT ISSUE

N.C. Gen. Stat. § 130A-383, 130A-385 and 130A-389

ISSUE

Whether Respondent acted erroneously or otherwise substantially prejudiced Petitioner’s rights by determining that the manner of Kimberly Raborn’s death was suicide?

FINDINGS OF FACT

1. The parties are properly before the Office of Administrative Hearings, and the Office of Administrative Hearings has jurisdiction over this case.

2. Petitioner and Kimberly Hudson Raborn were married in June of 1988. They have two children, Dakota (Cody) Raborn, born February 28, 1990, and Kory Raborn, born May 28, 1991.

3. Kimberly Hudson Raborn died in her home on the morning of August 9, 2003. Ms. Raborn was 41 years old, and living with Petitioner and their two children in Stanly County, North Carolina. Ms. Raborn was an engineer by profession. Ms. Raborn was 5’ 5” and weighed 165 pounds at the time of her death. For several months before her death, she had been taking the maximum therapeutic dose of Citalopram, 60 mgs daily.

4. For at least 8 years before her death, Ms. Raborn remained sober from alcoholism she battled in the late 1980s. Ms. Raborn had also suffered from chronic back pain for several years and from depression for at least two years before her death.

5. On April 8, 2003, Ms. Raborn began seeing Psychologist Eileen Keipper for treatment of depression and panic attacks. As part of her initial treatment protocol, Ms. Keipper assessed Ms. Raborn’s mental state, including express and non-verbal indicators. Ms. Keipper made written notes that Ms. Raborn was depressed, and suffered from “loss of interest,” decreased energy, appetite disturbance, anxiety, panic attacks, irritability, and premenstrual syndrome. Ms. Keipper also noted that Ms. Raborn had been “depressed for years,” and on medications “for years.” Based on her initial evaluation, Ms. Keipper did not find Ms. Raborn to be suicidal.

6. Psychologist Keipper saw Ms. Raborn on April 24, 2003, on May 1, 2003, May 6, 2003, May 22, 2003, June 10, 2003, June 19, 2003, and July 8, 2003. At every visit, Keipper conducted a mental status examination of Ms. Raborn, including an assessment of possible suicidal ideations, and wrote notes of her observations and impressions of Ms. Raborn. During each visit, Keipper noted that Ms. Raborn was depressed. During various visits, Ms. Raborn was sad, had crying spells, had feelings of guilt, and was angry. Ms. Raborn had also lost her support group of friends.

7. Ms. Keipper made numerous references in her records to Ms. Raborn’s financial stress, and her inability to work on a regular basis. Specifically, the Raborn’s decision to buy a large house had caused the family financial stress. Because of this financial stress, the Raborns decided to move to a smaller house, and to sell their larger house. They found a buyer for the larger house, packed all their belongings, and moved into another house. Five hours before the scheduled closing, the buyers of the Raborns’ house backed out of the transaction. The family had to repack all their belongings, and move back into their old house. This incident occurred in early August, approximately 10 days before Ms. Raborn’s death.

8. Ms. Keipper also noted during each visit that Ms. Raborn suffered from chronic back pain.

9. Ms. Keipper’s appointments with her patients normally lasted 50 minutes each. Of all the appointments Ms. Keipper had with Ms. Raborn, the May 22,, 2003 appointment was the last full appointment during which Ms. Raborn spent a usual, scheduled time of 50 minutes with Ms. Keipper. After May 22, Ms. Raborn cancelled some appointments, and was late for the ones that she attended. As a result, from May 23, 2003, through her last appointment with Ms. Raborn on July 8, 2006, Ms. Keipper saw Ms. Raborn for a total of one hour and 35 minutes.

10. At the administrative hearing, Ms. Keipper testified as an expert witness in psychology for Petitioner. As a psychologist, Keipper could not prescribe any of the medications Ms. Raborn was taking for chronic pain or depression.

11. During her sessions with Ms. Keipper, Ms. Raborn did not voice or show any signs of suicide risk. Ms. Keipper opined that Ms. Raborn was not a danger to herself, and was not a risk to commit suicide. She also thought that Ms. Raborn, in repeatedly cancelling appointments and being tardy for appointments, “probably was doing to me what she was doing to her job. Missing – missing time. It was the same mental process.” (Keipper testimony)

12. On August 8, 2003, Ms. Raborn took Cody to get his sports physical so he could play football at West Stanly. Ms. Raborn loved to take him to practice and loved to watch his games. Cody spent the night with a friend the evening of August 8, 2003, and did not see her that evening. She appeared normal to him on August 8, 2003, and did not seem sad or depressed.

13. On the evening of August 8, 2003, Petitioner, Mrs. Raborn, and their son, Kory watched television at home. Mrs. Raborn had been helping fix up the house most of the day, since they had just moved back into the house. Around 8:30 or 9:00 P.M., consistent with her usual routine, Mrs. Raborn gave both Mr. Raborn and Kory a hug and a kiss, told them goodnight, and went to bed. Mrs. Raborn appeared perfectly normal to them, did not voice any complaints, or appear upset. She did not show any signs of hopelessness, sadness, despair, or any unusual behavior. Her mood and state of mind appeared perfectly normal to Petitioner and Kory.

14. Ms. Raborn kept her medications in the medicine cabinet in the bathroom, which opened to the master bedroom. Neither Kory nor Mr. Raborn observed her take any medications that evening.

15. About an hour and a half later, Mr. Raborn and Kory went to bed. When Petitioner got into bed, he turned on the television in the bedroom. Ms. Raborn awoke, and asked Petitioner to turn the television down.

16. At 6:00 a.m. the next morning, Petitioner heard Ms. Raborn get up, and walk into the kitchen. He heard her put ice in a glass, and get a Dr. Pepper. This was Raborn's usual morning routine. After a couple of minutes, Ms. Raborn returned to bed with her drink in hand. She did not go into the master bathroom before returning to bed.

17. At 7:00 A.M., Petitioner awoke, and cuddled up to Ms. Raborn. After approximately 15 minutes, he realized something was wrong. He turned Ms. Raborn over, and saw that she was blue and non-responsive. He called 911, and told Kory meet the meet the ambulance at the road. Petitioner administered CPR to Ms. Raborn until the EMS arrived.

18. The paramedics responded to the 911 call and attempted to save Ms. Raborn’s life. Upon their arrival, the paramedics asked Petitioner to provide them with all of Ms. Raborn’s prescription medications. Petitioner retrieved approximately 4 to 7 prescription medicine bottles from the medicine cabinet in the master bathroom, and gave them to the medics. Later, Petitioner located a bottle of generic Valium in a top dresser drawer in the bedroom. The generic Valium was the only medication of Ms. Raborn’s that was ever located in the home, other than those found in the master bathroom.

19. One of the prescription medications Petitioner gave the medics was Celexa. The prescription label showed that it was a prescription for 60 Celexa tablets. There were 50 Celexa tablets remaining in the bottle when Petitioner gave the bottle to the paramedic personnel. This fact was documented on the Medical Examiner’s Report.

20. EMS transported Ms. Raborn to Stanly Memorial Hospital in Albermarle, NC. Unsuccessful efforts to revive her were stopped at 9:06 a.m.

21. Dr. Eugene Coles, Stanly County Medical Examiner, investigated Ms. Raborn’s death and signed Ms. Raborn’s death certificate. On the original death certificate, Dr. Coles listed the cause of Ms. Raborn’s death as “Pending,” and the manner of death as “pending.” (Pet Exh 1) Dr. Coles wrote a narrative summary of the circumstances surrounding Ms. Raborn’s death that follows in pertinent part:

. . . She has a hs [history] of depression and on several drugs: (1) Clonazepam 1 mg (empty bottle of 20), Alprazolam 2 mg (empty bottle of 30), Hydroxyzine 50 mg (empty bottle of 60), Celexa 40 mg (Bottle of 60/50 left), Wellbutrin SR (Bottle of 30/6 left), Propoxyphen[e] 65 mg (Bottle of 60/8 left), Carisoprodol 350 mg (Bottle of 90/22 left). She was thought to be heard by family members (not seen) at about 6:30 a.m. 8/9/03. She was then later found unresponsive and not breathing. EMS was called and . . . was initiated. All efforts were terminated at 0906 8/9/03.

(Pet Exh 3)

22. Later that day, Dr. Michael Sullivan with Mecklenburg County Medical Examiner, performed an autopsy of Ms. Raborn’s body. As part of his autopsy, he took toxicology samples from Ms. Raborn’s blood and liver, and submitted those to the Respondent for analysis. Dr. Sullivan’s pathological diagnosis noted Ms. Raborn had: “1. Pulmonary vascular congestion and edema, and 2. Focally severe atherosclerotic coronary artery disease, two vessel.” (Pet Exh 2) Dr. Sullivan summarized his examination in pertinent part by saying:

. . . Reportedly[,] there was a history of bipolar disease with recent severe depression, no history of suicidal tendencies, according to husband a history of abuse of medications, and a history of hypercholesterolemia for which she refused treatment.

Autopsy showed the body of an adult white female with focally severe atherosclerotic coronary artery disease, pulmonary edema, moderately distended urinary bladder, slight diffuse cerebral swelling.

Cause of death is pending additional studies including history and toxicologic analysis. . . .

(Pet Exh 2)

23. Respondent’s Office took jurisdiction over this case to determine the means and manner of death of Ms. Raborn.

24. Respondent takes jurisdiction in determining manner and cause of death in cases of sudden, unexpected deaths, such as deaths due to some external means as in a motor vehicle accident, and deaths due to some type of violence as in a homicide or suspected homicide. Respondent reviews the decision by the County Medical Examiner, and in some cases, amends the finding on the manner or cause of death.

(a) Respondent has five categories that it utilizes to indicate the manner of death on a death certificate: natural, accident, suicide, homicide, or not determined. The category of "not determined" is indicated where the “circumstances are kind of 50/50,” or if there is insufficient investigative information to determine one of the other categories as the manner of death.

(b) A standard file in a case under the Respondent’s jurisdiction would include the local Medical Examiner’s Report of his Investigation, a death certificate, and a toxicology specimen. If an autopsy is ordered, a Report of Autopsy Examination, including a toxicology report, is also part of Respondent’s file for review.

25. Respondent assigned Ms. Raborn’s case to Dr. Deborah L. Radisch, the Associate Chief Medical Examiner for the State of North Carolina. She has held that position for the majority of the past 23 years, full-time for 15 or 16 years, and part-time for the other years. As part of her duties, she performs autopsies and reviews reports from County Medical Examiners. She had 23 months of fellowship training under the Chief Medical Examiner, which included training in determining the cause and manner of death. The undersigned qualified Dr. Radisch as an expert in forensic pathology and in determining the manner of death.

26. Dr. Radisch reviewed the circumstances of Ms. Raborn’s death in the routine course of her job. On November 18, 2003, Dr. Radisch reviewed Ms. Raborn’s case file, and determined that the proper protocol had been followed.

(a) Radisch initially reviewed the Autopsy Report, including the toxicology report, the Medical Examiner’s Report of the Investigation prepared by Dr. Coles, and the death certificate. Dr. Radisch observed that both the autopsy findings and the toxicology report noted very high concentrations of citalopram in Ms. Raborn’s body.

(b) Specifically, she noted that the toxicology report included analysis of blood samples from Ms. Raborn’s aorta, iliac vein, and liver. The toxicological analysis of the aortic blood sample showed a citalopram content of 3.2 mg/L. The toxicological analysis of the iliac vein sample showed a Citalopram content of 4.3 mg/L, with the liver tissue sample showing a citalopram content of 23 mg/kg. (Pet Exh 2)