MARCH 12, 2012 VOLUME 19 NUMBER 10
Georgia Griffin (not her real name) moved from Kansas to Arizona in 1997. She lived in her own townhome in Sun City West, a retirement community northwest of Phoenix, until 2001, when she moved in next door to her daughter Barbara, who lived in Scottsdale.
Georgia’s story was fairly typical: she had lived at home independently until, at age 90, her physical ailments made it difficult for her to get along without help. The move to be next to her daughter was occasioned by her daughter’s concern that she was at risk living alone. One particular concern: after Georgia fell in her home, she worried that if she were to fall again she might not be able to get up, even to summon help.
After Georgia’s initial move to Arizona, daughter Barbara helped her with her banking, filling out checks and making transfers and withdrawals. She was a joint tenant with her mother on some accounts; several were changed from joint tenancy to “payable on death” (POD) to Barbara at some point. Meanwhile, Georgia’s other daughter Elizabeth was less involved — though she also lived nearby.
Shortly before Georgia’s move to be next door to Barbara, Barbara had purchased six condominium units in the complex where she lived. In fact, Georgia’s move was into one of those units. Elizabeth would later argue that the money for those purchases came from their mother’s accounts.
After Georgia’s death in 2003, Elizabeth initiated a probate proceeding and was appointed as personal representative of Georgia’s estate. She then filed an action against Barbara, alleging that Barbara had taken advantage of Georgia while she was a “vulnerable adult” — an important term under Arizona’s law protecting seniors and those with disabilities.
After a five-day trial, she convinced the judge that Georgia was vulnerable, that Barbara had held a position of trust with their mother, and that she violated that trust by using Georgia’s money to purchase her condominium units. The judge entered a judgment for $179,518.51 against Barbara, and imposed a constructive trust on five of the condominium units (ordering that they could be sold to satisfy the judgment). The judge also ruled that Barbara had forfeited any right to inherit from her mother’s estate; the judge did not impose treble damages against Barbara, which was an option available at the time (the Arizona legislature has since reduced the maximum penalty to double the amount of the basic judgment, though that would not have made any difference in this case).
The Arizona Court of Appeals upheld the judgment. The key question raised by Barbara on appeal: how could the trial court have found Georgia was “vulnerable” when the evidence indicated she was fully competent? Can vulnerability be based solely on evidence of physical limitations?
The short answer: yes. The appellate judges ruled that vulnerability for purposes of Arizona’s exploitation statute can be predicated solely on physical impairments if, as a result of the impairments, the victim is unable to protect herself from the exploiter. Mental impairment is not necessarily required. In this case, according to the court, Georgia’s “diminished vision and hearing could also have made her more susceptible to exploitation, as they could make her less aware of her surroundings and the circumstances of any transactions in which she became involved, thereby making her less able to protect herself if targeted for exploitation.”
That is not to say that every transaction Georgia might enter into would be suspect. “A vulnerable adult may still have the capacity to transfer property,” according to the judges. In fact, Georgia had transferred her original townhome to Elizabeth and the family home in Kansas to Barbara; those transfers did not necessarily amount to exploitation.
There is a second interesting holding in the appellate decision, though it is perhaps less far-reaching in its scope. After the trial was over, and while one of Barbara’s sons was packing up his belongings to move out of the condominium he lived in (and which would now be sold), he said he discovered old letters written by Georgia. Those letters related how Georgia was helping Barbara and her husband purchase several condominiums so that they would have income when they retired. Barbara moved to reopen the trial to introduce those letters, but the trial judge refused.
That refusal was not error, according to the Court of Appeals. There was insufficient evidence that the letters could have been found by diligent search before the trial. More importantly, the letters would not likely have changed the outcome. Why not? Because Barbara’s (and her husband’s) defense throughout the trial had been not that Georgia permitted the use of her money but that none of her money was involved in purchasing the condominiums. The letters would therefore have run counter to their core argument. In re Estate of Gorsik, April 12, 2012.
There are several footnotes worth mentioning in discussion of the appeal in Georgia’s case. First, the decision is a “Memorandum Decision.” That means that, though the appellate court laid out its reasoning and legal arguments, the decision is not “published” and therefore can not (at least not usually) be cited as precedent in other, similar cases. It is in the nature of lawyers and judges to make and keep records, so one irony about unpublished (memorandum) decisions is that they are published, can be read by anyone who wants to take the time to look for them, and are often cited as at least some evidence of the inclinations of appellate courts.
Another small irony: even as Georgia’s case was working its way through the courts, the Arizona legislature has been busy weakening the protections afforded to victims of abuse, neglect and exploitation. First, as noted above, was the reduction of “treble damages” awards to “double damages.” That, as it turned out, had no direct effect on Georgia’s case, since the trial judge decided that extra damages should not be awarded — but it does make such cases less attractive to lawyers with experience in exploitation cases, and it reduces the likelihood that any given case will be initiated in the future. Since then, the legislature has continued to push at the margins of abuse, neglect and exploitation cases; there is a bill pending even now that would eliminate the availability of an award of attorneys fees to the successful party in cases involving vulnerable adults.
Why would the legislature want to eliminate protections for vulnerable adult victims? Probably because some abuse, neglect and exploitation cases are filed against nursing homes, long-term care homes and medical providers, and they tend to have legislators’ attention. Vulnerable adults, by contrast, have a very poor lobbying record.
SEPTEMBER 6, 2010 VOLUME 17 NUMBER 28
The question addressed in a ruling last month by the Arizona Court of Appeals seems provocative. In a lawsuit based on the Arizona law prohibiting abuse, neglect or exploitation of vulnerable adults, does the very life of the abused senior have any intrinsic value? The Court’s answer: perhaps, but the lawsuit can not recover damages for the loss of that life.
Mary Winn died about a month after being admitted to Plaza Healthcare, a Scottsdale, Arizona, nursing home, in 1999. Four years later her husband George Winn filed a lawsuit against Plaza, alleging that it had violated Mrs. Winn’s rights under Arizona’s Adult Protective Services Act. Under the APSA, a vulnerable adult who has been abused, neglected or exploited may recover damages suffered as a result of that abuse, neglect or exploitation. Mr. Winn argued (on behalf of his wife’s estate) that he should be able to recover on behalf of his late wife, and that she would have been entitled to actual damages for the loss of her life, as well as punitive damages.
Not so, argued the nursing home. Mrs. Winn obviously could never have collected damages for her own death, and her estate’s recovery was limited to what she could have recovered. In fact, the estate’s possible recovery was less than her damages, since any claim for pain and suffering she experienced at the end of her life ended with her death. With no actual damages to recover, her estate could not seek punitive damages.
Mrs. Winn’s estate argued that her life had some “intrinsic” value, and that it should be recoverable. The estate conceded that she was elderly and ill when she arrived at Plaza Healthcare, and that she could not be expected to earn a salary given her age and condition. But, insisted the estate’s lawyers, a human life has some inherent value.
The trial court agreed with the nursing home, and limited the estate’s proof to just actual damages. After an informal arbitration proceeding (the estate conceded that the remaining damages were less than $50,000, and therefore subject to mandatory arbitration rules) a judgment against was entered in favor of Plaza Healthcare.
The Arizona Court of Appeals reviewed the trial court’s ruling and agreed. There is no cause of action under the vulnerable adults statute, ruled the appellate judges, for the “intrinsic or inherent value” of a deceased claimant’s life. Mrs. Winn’s estate — and her husband — recovers nothing from Plaza Healthcare. Estate of Winn v. Plaza Healthcare, Inc., August 10, 2010.
To be fair, the appellate court did not rule that there is no value to the life of an elderly, disabled and vulnerable senior. All the ruling says is that there is no right to recover under the Arizona Adult Protective Services Act for the loss of life itself.
Does that mean that Mr. Winn had no claim for his wife’s alleged mistreatment? Not necessarily — he might have been able to file his lawsuit on his own behalf if he had acted more quickly. By the time he filed it had been more than four years since his wife’s death — too late for any wrongful death action but not too late for a viable lawsuit under the Adult Protective Services Act, which had a much longer statute of limitations.
There is another interesting footnote to the Winn case. Last month’s decision from the Court of Appeals is not the first time Mrs. Winn and her estate have been before Arizona appellate judges. In fact, her case had been appealed twice before — once in 2006/2007, and again a year later. The first trip through the appellate system involved the trial judge’s dismissal — ultimately reversed by the Arizona Supreme Court — on the basis that a probate proceeding filed more than two years after the decedent’s death did not permit filing of a lawsuit in the estate’s name. A year later the Court of Appeals dismissed an attempted appeal from the trial judge’s initial refusal to allow any recovery for the inherent value of Mrs. Winn’s life. That appeal had to wait for final resolution of the entire lawsuit, which was accomplished before the current (and probably final) appeal.
Abuse of the elderly may be physical or financial. In some cases caretakers or family members may simply have failed to provide adequate care and that neglect may have lead to injury (or even death). Most elder care professionals recognize that all three kinds of misconduct are seriously under-reported, making it difficult to accurately determine how common the problems actually are. That difficulty is exacerbated by adult protective organizations’ inclusion of “self-neglect”—the failure of a frail elder to seek adequate care for themselves—in the statistical mix.
Two recent California criminal cases are evocative of the kinds of physical abuse and neglect inflicted on elders. Both arise because the defendants, though acknowledging that they were guilty of criminal acts, sought to reduce the severity of sentences imposed for their crimes.
David Wallace Taggart, who lived in Ventura County, had a problem with cocaine. He had been in trouble several times as a result of his drug addiction and drinking, and he was on probation for a drunk-driving offense when he embarked on a three-day cocaine binge, leading to a delusional state and a violent outburst. He began by tearing up his girlfriend’s house, then jumped into his truck, drove it into the fence of his elderly neighbors the Thompsons, and attacked both the wife and husband without any provocation. He ended up striking Mr. Thompson with a frying pan, knocking him out.
When Mr. Taggart was sentenced to nine years in prison he appealed. His argument: he was delusional at the time of the attacks and that should have mitigated his sentence. The Court of Appeals noted that he had a history of violence and drug abuse, and declined to reduce his sentence. People v. Taggart, September 19, 2002.
Nicholas Hayes Raye lived in Napa County. He had befriended an elderly woman, Helen Johnson, and moved in with her, helping her with small household chores and projects. As Ms. Johnson’s ability to take care of herself deteriorated Mr. Raye became more and more responsible for her care. After Mr. Raye noticed open sores on Ms. Johnson’s back he called 911, and state social services workers became involved.
Despite repeated attempts to get Mr. Raye to turn Ms. Johnson in her bed, feed her adequately and keep her wounds clean, he did not seem to be able to cope with his landlady’s condition. Instead, he chased nurses and social workers out of the house. Ms. Johnson’s condition worsened, and she died at home a few weeks after Mr. Raye’s care began.
Mr. Raye obviously suffered from mental problems of his own, but he was convicted of elder abuse and sentenced to one year in jail and five years of probation. He appealed because, among other things, he objected to the prosecutor introducing evidence that he had also taken financial advantage of Ms. Johnson prior to her physical condition worsening. The Court of Appeals upheld Mr. Raye’s conviction, finding that the evidence tended to show the relationship between Mr. Raye and Ms. Johnson, and that any error was harmless. People v. Raye, September 19, 2002.
Identifying and protecting against abuse of nursing home residents is a difficult and continuing problem for authorities. The frailty and dependence of residents, coupled with high turnover and, too often, poor training and supervision, make it a challenge to prove cases of abuse or neglect. A recent incident in New York illustrates some of the common problems of proof in such cases.
Cindy M. King was a certified nurse’s aide working in a skilled nursing facility in Clinton County, New York. She was charged with forcibly grabbing an elderly resident’s arm and pulling her out of her bed. After a hearing before the State Department of Health she was found to have engaged in behavior constituting patient abuse and patient neglect.
Ms. King appealed the determination. Among other things, she argued that the hearing officer should not have accepted hearsay evidence. The appellate court rejected that assertion and upheld her discipline.
By the time of the hearing the patient Ms. King was accused of abusing had died. While the patient’s death was not a result of Ms. King’s treatment, it nonetheless points up a common problem in investigating and prosecuting cases of abuse in nursing homes: because the residents tend to be both elderly and frail, they often die before the legal proceedings can be resolved. In other cases residents may be dependent on caretakers and anxious about accusing anyone of misbehavior, or their mental abilities may be so diminished that their testimony is unreliable.
In Ms. King’s case, the resident had signed an affidavit about the incident. Other staff members testified about her descriptions of the events at the time. Both kinds of testimony were introduced.
Ms. King argued that the resident’s statements should not be admitted or considered because she did not have any opportunity to cross-examine the resident, and the resident’s mental status made her testimony inherently unreliable. The appellate court upheld the hearing officer’s consideration of the resident’s statements, pointing out that other staff members described her as alert and coherent. In any event, the court noted, the resident’s version of the events was corroborated by other sources—including Ms. King herself, whose version of the incident differed from the resident’s in only one key respect.
According to Ms. King, she had assisted the resident to get out of bed by supporting her back; according to the resident and other witnesses, she had grabbed the patient’s arm and pulled her out of bed. There was some evidence that Ms. King had admitted that the resident’s version was more accurate. With substantial evidence to support the Department of Health’s determination, Ms. King’s objections were denied and her appeal dismissed. King v. New York State Department of Health, June 13, 2002.
When a loved one is institutionalized, family members usually do not have the skills and information necessary to closely monitor the quality of care. They usually rely heavily on the advice of the patient’s physician to direct the course of treatment. In those cases where the physician becomes part of the problem, it may be extremely difficult for family members to respond.
Girtha Mack resided in the Covenant Care Nursing and Rehabilitation Center in California. Her attending physician, Dr. Lian Soung, supervised her medical care at Covenant. Ms. Mack’s children were actively involved in her care, and regularly checked with both the nursing home and Dr. Soung.
According to her children, Ms. Mack was left in a bedpan for 13 consecutive hours and developed untreatable Stage III bedsores. Dr. Soung and the nursing home allegedly concealed that fact from the children for weeks, and refused to permit them to inspect the bedsores until the nursing home ombudsman intervened on their behalf.
Dr. Soung opposed hospitalization for Ms. Mack, insisting that the care she was receiving at the nursing home was appropriate. Two months later, Ms. Mack’s condition worsened, and Dr. Soung abruptly abandoned her as a patient. He refused to respond to requests for hospitalization by the nursing home staff. Ms. Mack died a few days later.
California law, like that of Arizona and other states, provides special protection against abuse, neglect or abandonment of elderly or dependent adults. Ms. Mack’s children brought a lawsuit against Dr. Soung, alleging that he had abused and neglected Ms. Mack. They also charged Dr. Soung with intentionally inflicting emotional distress on the family.
Dr. Soung persuaded the trial court to dismiss both complaints against him, and Ms. Mack’s children appealed. The California Court of Appeal agreed that the action for intentional infliction of emotional distress should be dismissed, but returned the case to the lower court for a trial on the neglect charge.
The court noted that the California law on abuse applies to “care custodians” and not physicians. The section of the law dealing with neglect, however, includes health care providers such as physicians.
By using the neglect statute, Ms. Mack’s family apparently hoped to accomplish two things. First, the action would not be governed by rules applied to medical malpractice lawsuits. Second, the possible recovery from Dr. Soung is larger because of the neglect statute’s enhanced penalty provisions. Now the Mack family will be able to pursue their litigation under that neglect statute. Mack v. Soung, May 17, 2000.
Arizona’s law is similar to that in California, but would be even easier for Ms. Mack’s children to apply. It covers “any person who has been employed to provide care” to a “vulnerable” adult. The language of the Arizona statute is unusually broad in a number of ways, including the definition of a “vulnerable” adult (“an individual who is eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment”). Like California’s law, the Arizona statute provides for the possibility of punitive damages.
Physical, sexual, mental and emotional abuse of elderly and vulnerable adults is a growing problem not only in Arizona, but around the world. Such abuse is also a crime. Even the failure to report elder abuse may be a crime in some circumstances.
Arizona law particularly protects “vulnerable” adults. An adult is deemed vulnerable when he (or she) “is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.” [Arizona Revised Statutes section 46-451(A)(10)]
Adult Protective Services, the Arizona state agency charged with responding to allegations of abuse, neglect and exploitation, reports that actual abuse appears to be less common than either neglect (including “self-neglect”) or financial exploitation. Still, the incidence of abuse is high and growing.
Who is abusing seniors? The classic profile of an abuser, according to experts, includes the following elements:
•
The abuser is usually a son of the victim. Abuse by strangers is relatively rare, and when it does occur is almost always committed by a caregiver.
•
The abuser is also usually unemployed and financially dependent on the victim. In fact, the most common term used to describe the individuals who become abusers is “lazy.”
•
In addition, the abuser frequently has a drug and/or alcohol problem, and may also be addicted to gambling.
Some professionals are required by Arizona law to report even suspicions about abuse, neglect and exploitation. Physicians, psychologists, dentists, social workers and police officers are all required to file reports whenever they have a “reasonable basis” to believe that abuse, neglect or exploitation has occurred. Failure to make a report is itself a misdemeanor, and could lead to loss of licensure or other penalties.
Reports of abuse (like reports of neglect and exploitation) can be filed with Adult Protective Services or the local police or sheriff’s department. The law requires those reports to be filed immediately by telephone or in person, and the initial report must be followed up with a written report within two working days.
In order to make reporting abuse, neglect and exploitation simpler Adult Protective Services has established a statewide toll-free telephone number. Initial telephone reports can be filed by calling APS at 1-877-767-2385. Those with hearing impairments can call a special toll-free number at 1-877-815-8390.
Arizona is not the only state with a toll-free, centralized reporting number for elder abuse. Contact information for other states can be located at the National Center on Elder Abuse website at www.gwjapan.com/NCEA/report/index.html.
Abuse is often difficult to detect. Symptoms of an abusive relationship often (but not always) include dependence on the abuser, “hovering” by the abuser, isolation of the victim from friends and family, recent changes in behavior and/or spending patterns, and general anxiety on the part of the victim.
Although nursing homes are more familiar to most Americans, nearly half of all elderly residents of institutions live in adult care homes. Often housed in converted residences, adult care homes usually provide personal care, supervision and activities for a small group of residents. Care in such facilities is often excellent, and may be more personal and comfortable than a larger, medically-oriented nursing home. Sometimes, though, the care can be horrific—as Chiyeko Tanouye’s case attests.
Ms. Tanouye was placed in an adult care home operated by Raquel Bermisa in mid-1999. At age 79, the Pearl City, Hawaii resident was completely unable to provide for her own care, and was confined to her bed.
One common problem experienced by bedridden patients is the development of bedsores—more properly referred to as pressure sores or decubitus ulcers. Ms. Tanouye began to suffer from such sores within a short period of her placement.
Treatment for pressure sores is normally straightforward. Patients must be turned regularly to relieve the pressure on affected areas, and the sores must be cleaned, protected and treated with salves. Regular nursing and medical review is essential to help in the reduction of pressure sores.
Unfortunately for Ms. Tanouye, her caretakers did not follow up with the prescribed medical care. By the time Ms. Bermisa took her to the emergency room last August, she was beyond treatment. Ms. Tanouye died shortly thereafter.
Hospital personnel reported the death to prosecutors, who ultimately charged Bermisa with manslaughter. As operator of the care home, Bermisa was responsible for seeing to the care of Ms. Tanouye, and she failed in that duty, prosecutors argued. Ms. Tanouye’s death from sepsis caused by inflammation of her open wounds could have been avoided, and Bermisa had a duty to provide the care necessary to prevent that death.
Last month Bermisa plead guilty to manslaughter, and she is awaiting sentencing. She is facing a one-year jail term for her failure. Prosecutors believe that hers may be the first such conviction in the country.
Most adult care homes provide good care. Despite that, neglect is unfortunately all too common. Such total disregard for patient care is not common, but it is difficult to estimate how frequently such incidents occur.
Under Arizona law a person can be charged with manslaughter for “recklessly” causing the death of another. That standard is met when the defendant is aware of the risk of injury and consciously disregards that risk. An Arizona conviction for manslaughter will lead to imprisonment for 6 to 18.5 years.
Court in Phoenix challenging Arizona’s voting laws. The challenged provisions prevent people for whom guardians have been appointed from voting in state, local or federal elections.
Arizona’s Constitution provides, in Article VII, Section 2, that “[n]o person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election….” Statutes adopted to implement that provision require the Superior Court Clerk to notify the County Recorder whenever a person has been “declared insane” or had a “guardian of the person and estate” appointed. Perhaps because of the archaic language of the statute, few (if any)of Arizona’s counties comply with this requirement.
Carl Pierson, a 37-year-old Globe resident, is the plaintiff in the Center’s lawsuit. Mr. Pierson is mildly retarded, and the Gila County Public Fiduciary has been appointed as his guardian. Although he registered to vote last May, his name was removed from the voter lists this month.
The lawsuit claims that denial of the right to vote to all wards in guardianship proceedings violates the 14th Amendment to the U.S. Constitution, which guarantees “equal protection” of the law to all citizens. The suit also alleges that the Arizona provisions violate the Americans with Disabilities Act, which was adopted by Congress last year, and the Voting Rights Act.
If the lawsuit is successful, the result would probably be that guardianship wards will be permitted to vote unless someone specifically challenges their capacity to understand the voting process. Estimates indicate that over 3,000 Arizona residents are under guardianship or conservatorship.
Federal Study of Abuse
The U.S. Department of Health and Human Services has announced that it will spend a million dollars on a three-year investigation of abuse, neglect and exploitation of older Americans. Funds will come from the Administration on Aging and the Administration for Children and Families; the study will be conducted by the National Center on Elder Abuse in Washington.
Fernando Torres-Gil, assistant secretary for aging of the Department, announced the study last week. He described previous studies which indicate that as many as 1.5 million senior Americans (approximately one in 20) may be victims of abuse, and speculated that the actual numbers may be much higher.
Reasons for suspected under-reporting of abuse include the shame frequently felt by victims, as well as the fact that police and prosecutors are ill-equipped to work with the elderly. Torres-Gil described elder abuse as “the hidden shame of the American family.”
Editorial
A larger question posed by Carl Pierson’s case may go unanswered. If Mr. Pierson is able to exercise the discretion involved in voting (and all indications are that he is), why does he have a guardian? If a guardian has been appointed because Division of Developmental Disabilities rules require a guardianship proceeding as a condition of providing services, shouldn’t that law be challenged first?
