BRENTWOOD — Kay Phaneuf's death was tragic, but it wasn't a crime, according to Rockingham County Attorney James Reams.
Reams won't file criminal charges after a power shutoff in Salem stopped Phaneuf's oxygen machine. He called her death a "tragic accident."
"The conclusion is that we do not have sufficient evidence to bring any criminal charges," Reams wrote in a letter Sept. 2 to Salem police Chief Paul Donovan.
"This is a tragic accident that does not rise to the level of criminal conduct."
Kay Phaneuf, 54, suffered from chronic obstructive pulmonary disease and needed the machine to live, according to doctors' letters sent to National Grid on several occasions. The letters were among hundreds of pages of documents released yesterday as part of the county attorney's report on Phaneuf's death.
Those documents included termination notices, electric bills and warnings that Phaneuf's medical protection from a shutoff would expire without a new doctor's note.
Phaneuf died after a National Grid employee shut off power to her home on June 21 because she owed the company more than $900 in past-due bills.
The employee, David Saffie, told police he knocked on the door three times, but nobody seemed to be inside the house at 18 Charles St.
Reams wrote that the company went beyond the state Public Utilities Commission standards for working with people who had a previous medical protection with a utility once it expired, ruling out the possibility of charges of negligent homicide.
"In order for the state to be able to prevail in this case, we would have to prove beyond a reasonable doubt that National Grid deviated from the conduct dictated by the PUC so far that the conduct of National Grid rises to the level of criminal negligence," Reams wrote.
"In fact, National Grid exceeded the conduct set by the PUC as acceptable conduct by utilities serving New Hampshire."
There is no state law requiring utilities to have specific policies for discontinuing service to someone with a medical emergency or condition. But PUC rules do require written policies for customers who have a resident with a medical emergency.
Those rules require utilities to continue to provide service to the customer "if the customer agrees to a payment arrangement wherein additional flexibility is built into the payment arrangement." The PUC regulations require the medical protection to be renewed every 60 days with a doctor's note.
History of warnings, termination notices
National Grid only requires customers to renew every 90 days, Reams wrote.
The company had not shut off power even though Phaneuf had not made a payment since December 2009, and before then had been making only sporadic payments.
Phaneuf's power was only shut off after her medical protection expired.
National Grid's policy is to treat customers with a lapsed medical protection just like any other customer.
When that customer is behind in payments, that means giving them 14 days notice their electricity could be shut off.
National Grid had warned Phaneuf of expiring medical protection several times since 2009, after which she submitted notes from doctors explaining her condition. The last warning from the utility company came April 30, telling Phaneuf her protected status would expire May 15.
The utility did not receive a letter from a physician to extend Phaneuf's medical protection. She was warned June 1 her service would be terminated sometime after June 16 because of $979.20 in past-due bills.
It was not the first time Phaneuf had received a warning that her power would be disconnected. The files released yesterday also included termination notices from July 2009, September 2009 and February 2010. Those notices were followed by requests for letters from doctors confirming Phaneuf qualified for medical protection from a shutoff.
"At times, the Phaneuf account was 'protected' but then protection would expire due to a lack of physician confirmation and nonpayment by Phaneuf," Reams wrote. "In spite of problems, during 2009 and the first six months of 2010, the account was never paid off or paid on a regular basis, but National Grid did not terminate the service."
But with no payments made since December and the medical protection expired on May 15, a National Grid employee cut power to the residence on June 21.
The power was shut off just before 9 a.m., according to a police report.
Officer Jason Smith arrived at the house around 10 a.m., after Phaneuf's husband, Stephen, found Kay Phaneuf passed out on the bathroom floor and called 911.
Stephen Phaneuf told Smith that National Grid had shut off power to his residence before, about five or six months earlier, "and he had contacted them and assumed it was settled and that they would not shut the power off again without notifying them," according to Smith's report.
Salem police reports reveal details
Detective Michael Bernard, who also investigated the incident, said he saw several past-due notices from National Grid in the Phaneufs' kitchen, including the May notice for more than $900.
Despite a sign out front warning visitors against smoking because oxygen was in use, the house smelled of stale cigarette smoke and was littered with ashtrays and cigarette cartons, Bernard wrote.
Upstairs, fire personnel worked on Kay Phaneuf. A tube ran up the stairs from the oxygen machine downstairs, into the bathroom and through to the master bedroom.
There was an oxygen tank sitting just outside the bathroom where Phaneuf was found.
"It appeared as though the victim was in bed, realized that she could not breath (sic) and tried to walk from her bed to the hallway where the oxygen tank was and just never made it," Bernard wrote.
Phaneuf was taken to Holy Family Hospital in Methuen, where she later died.
A Massachusetts medical examiner's report listed a lack of oxygen going to her brain as the cause of death.
At the hospital, while Kay Phaneuf was breathing with the help of a ventilator, Bernard spoke to her husband, who was upset, shaking and crying.
"I asked Stephen if he and the victim had some sort of agreement with National Grid about keeping the power on even though they were behind in their payments and Stephen said they did," Bernard wrote.
"Stephen stated that National Grid was requiring the victim to obtain a doctor's note every month stipulating that she needed electricity for her oxygen machine and that oxygen machine was necessary for her to live."
Phaneuf told Bernard they had been going back and forth with National Grid about the frequency of a doctor's note.
The documents released yesterday did not include any correspondence from the Phaneufs to National Grid.
Nobody answered the door at the Phaneuf home yesterday, but the red "no smoking" sign was still attached to the door.
A man who answered the phone there later said, "Nobody has any comment."
Patrick Jones, a Boston attorney hired to represent the Phaneufs, was in New York on business and did not return a call to his office.
"Our sympathies remain with the family following this tragedy, which is exactly what it was," National Grid spokesman David Graves said.
"We believe that the New Hampshire law enforcement professionals have reached the right conclusions that her death was an accident."
Graves said the utility company was committed to continuing to work with the PUC and other utilities in the state to provide appropriate protections to customers with medical conditions.
• • •
Join the discussion. To comment on stories and see what others are saying, log on to eagletribune.com.
