| On November 23, 2011, Natascha Tiger, a licensed practical nurse, was caring for a 10-year-old girl with profound disabilities in Orange County, New York. The girl, who required a feeding tube and a tracheostomy, was blind, unable to speak, and immobile.
Tiger, who was 40 years old, was giving the girl a bath. This involved placing the child on a mesh cot, covering the girl’s tracheostomy, and using a hand-held showering device. After the bath, Tiger would later say, she applied lotion to the girl’s leg and saw that her skin was red and peeling.
Tiger called the girl’s mother, who said her daughter’s skin did that sometimes. She told Tiger to apply some baby lotion. About two hours later, the mother came home. She called her daughter’s pediatrician and described the events. The doctor said the skin problem was likely an adverse reaction to Biaxin, an antibiotic the girl had begun taking a week earlier to treat pneumonia. He referred the girl to Westchester Medical Center for treatment, where she was admitted that day.
Physicians at the hospital examined the girl, and they ordered a biopsy on a skin sample. Their initial diagnosis was that the girl’s skin condition was due to either Stevens-Johnson Syndrome (SJS) or Toxic Epidermal Necrolysis (TEN), both tied to adverse medical reactions.
Two days later, Dr. Joseph Turkowski, the director of the hospital’s burn unit, diagnosed that the girl’s injuries were the result of scalding. The girl remained in the hospital until January 3, 2012, where she was treated for third-degree burns and given skin grafts.
On November 30, 2011, Tiger met with an investigator from the Orange County Child Abuse Task Force at a county office for Child Protective Services. She made a statement, claiming responsibility for the child’s injuries. It said in part: “I knew that I had burned [the child] with the hot water when I called [the child’s mother] earlier but was afraid to tell her about what happened when I was bathing her earlier in the day.”
Separately, Tiger wrote a letter to the girl’s mother. It said in part: “I am truly sorry about [the child]. I would never hurt her. When I called you to tell you her skin was peeling I was afraid. When you said her skin does that I was relieved and thought everything was OK. I did not want to think I can burn her and believed the doctor when he said this is probably an infection or result of antibiotics. I realize now I believed this because I wanted to.”
In February 2012, the girl’s mother filed a lawsuit against Tiger and Tiger’s employer, a home-health agency, seeking to recover damages for the injuries the girl received.
On April 5, 2012, Tiger was arrested and charged with second-degree assault, third-degree assault, two counts of endangering the welfare of a disabled person, and endangering the welfare of a child.
On July 24, 2012, Tiger pled guilty in Orange County Supreme Court to endangering the welfare of a disabled person. The other charges were dismissed. The judge who accepted the plea asked Tiger a series of questions about her conduct.
“Did you make an error when you were testing that water in trying to determine whether it was the proper temperature level for this child?
“And do you realize that that is acting in a reckless manner? Do you understand that?
“And that, by doing that, you recklessly caused these burns to the child?”
And is it correct that, today, you are admitting to me that you were reckless in the care that you afforded this young child, and thereby caused her this physical injury. Is that correct?”
Tiger answered yes to all these questions. She was given a sentence of four months in jail and five years on probation.
The civil lawsuit went to trial in early April 2014. Because of Tiger’s plea, her former employer was barred from contesting liability, and the trial revolved around causation and damages. Turkowski testified for the plaintiff. The defense did not present any expert testimony, but it now had the results of the biopsy performed on the girl.
The hospital chart had said the biopsy was negative for the adverse reactions. But that was wrong. The biopsy results were positive for TEN and SJS. On April 18, 2014, the jury ruled in favor of the defendants, finding that Tiger’s care was not a substantial factor in the girl’s injuries.
On April 9, 2014, Tiger, now represented by John Ingrassia, moved to vacate her conviction. She said she was innocent and that her attorney had been ineffective in his representation because he failed to secure the biopsy results or bring in an expert witness to consult on the state’s evidence.
In an affidavit filed with the motion, Tiger said an investigator with the child abuse task force showed her “terrible, shocking photographs” of the girl’s injuries and accused Tiger of throwing boiling water on the child. She said he told her that no one would believe her story and that he was trying to help her. He asked Tiger how it was possible that the girl was receiving skin grafts if Tiger had not burned her.
“I was afraid and confused because I could not explain any of these things, yet did not understand how it was that I could possibly have scalded [the child],” Tiger said.
A manager with the home-health agency had accompanied Tiger to the facility where the interview took place, but the manager was not allowed to take part in the interview and eventually left the premises. The manager texted Tiger, but the investigator told Tiger she could not text the manager back or talk with her family. “Isolated, tired, and confused, I was eventually convinced by [the investigator] that I must have burned [the child] because I could not otherwise explain the photographs, her treatment in the burn unit, or her need for skin grafting,” she said.
Tiger said she told her attorney that she couldn’t understand how she burned the girl and that her employer had already mentioned the possibility of SJS. She said the attorney told her that medical experts were expensive and that a plea deal made the most sense and minimized her exposure to a lengthy prison sentence.
The motion included a report by Dr. Bruce Farber, an infectious disease specialist who examined the girl’s medical records. He said his review found that there was no mention of scald burns for the first 48 hours of the girl’s treatment and that the documentation of her skin condition was consistent with TEN and not scalds.
He would write: “It is my opinion within a reasonable degree of medical certainty that [Tiger] did not cause scald burn injuries to [the child], and that [the child] was suffering not from scald burns but instead from an adverse reaction to medications, known as [TEN], and resulting complications.”
In addition, an attorney with the law firm representing Tiger and her former employer in the civil lawsuit, said in a court filing that as late as early July 2012, an expert retained by her firm said he could not determine whether the child was burned or suffered from an adverse reaction. She said she told Tiger’s trial attorney this information. It was only later, after the plea was entered, that her firm learned of the biopsy results.
The state opposed Tiger’s motion, arguing that her attorney had been effective in securing a favorable deal for Tiger. It also said that New York’s post-conviction statutes barred Tiger’s claim because she had pled guilty, and the evidence of innocence she cited was available at the time of her plea.
On January 12, 2015, Justice Jeffrey Berry of Orange County Supreme Court rejected Tiger’s motion without holding a hearing. Tiger appealed, and on March 1, 2017, the Supreme Court’s Appellate Division ordered an evidentiary hearing to be held.
The state appealed. On June 14, 2018, the New York State Court of Appeals ruled 5-2 that Tiger’s guilty plea precluded her from pursuing a claim based on actual innocence. “The evidence at issue here was not newly discovered,” wrote Chief Justice Janet DiFiore in the majority opinion. “The information regarding TEN/SJS and the existence of the biopsy testing were a part of the victim's medical records, and the possibility of obtaining a medical expert on behalf of defendant had been discussed with defense counsel before the guilty plea was entered.” However, the court’s ruling allowed Tiger to pursue a new trial based on ineffective assistance of counsel, because the justices said that attack on her conviction wasn’t precluded by her guilty plea.
In his dissent, Justice Rowan Wilson wrote: “The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources. Those concerns are weighty. But ‘conservation of judicial resources’ does not appear alongside ‘life, liberty and the pursuit of happiness.’ It is not impossible, as the majority seems to imply, to redress exceptional cases in which a clearly innocent person has pleaded guilty, and simultaneously to avoid eroding the fundamentals of our criminal justice system.”
Tiger’s motion for a new trial based on ineffective assistance moved back to Orange County, where a judge held an evidentiary hearing and then denied relief. She appealed.
On July 13, 2022, the Supreme Court’s Appellate Division reversed the lower court and ordered a new trial. The court said that Tiger had shown that her attorney failed to obtain the biopsy report or to consult with medical experts. The ruling noted that Tiger had testified at the hearing that she pled guilty because her attorney told her that nothing in the records supported her defense the child’s injuries were not caused by scalding water.
The state dismissed the charge in August 2023.
– Ken Otterbourg
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