Posts Tagged ‘neglect’

Financial Exploitation Case Leads to Judgment, Disinheritance

MARCH 2, 2015 VOLUME 22 NUMBER 9

We hear variations on this same story once every week or so. Dad (it might be Mom, or Aunt Bridget, or a long-time family friend) seemed to be adrift after his wife (her husband, her long-time companion) died. Then he met this woman who moved in with him (or moved her to his town), cut off family contact, got a power of attorney signed and proceeded to transfer assets.

Too often there’s not much we can do about the story. The money may be all gone (the people who take advantage of seniors in this fashion are often drug users, gamblers or marginal characters themselves). The family member might actually want to live with the person everyone sees as an exploiter. Sometimes it’s hard to even locate the victim.

Once in every few cases, though, it may be possible to protect the elderly victim, improve their situation and even secure a judgment against the exploiter. That’s what happened in a case that finally (after a decade of litigation) seems to have gotten resolved by the Arizona Court of Appeals.

Bridget Greene (not her real name) was 99 when she first came to the attention of Tucson lawyer (and professional fiduciary) Denice Shepherd (her real name) in 2005. Based on a report from Adult Protective Services, Denice filed a guardianship and conservatorship proceeding to extract Bridget from her “deplorable” living situation, and to begin the process of recovering some or all of her assets.

As the story developed, it became apparent that Bridget had befriended one Andrew Brice almost two decades earlier, after her husband’s death. She and her husband had no children; her closest relatives were nieces and nephews. Just two years before the guardianship/conservatorship proceeding, Bridget had moved back to Arizona after a short stint living near her nieces in Virginia. She had then signed a power of attorney naming Andrew as her agent, and transferred her home into Andrew’s name. She had also signed a new, handwritten will leaving everything to Andrew.

Denice promptly initiated an action against Andrew, seeking return of the money he had moved from Bridget’s account to his own. She recovered over $60,000 from three bank accounts, and then initiated a complaint against Andrew claiming that he had exploited a vulnerable adult.

Under Arizona law at the time (it has since been softened), a person found to have exploited a vulnerable adult would automatically be liable for three times the amount taken, plus being disinherited from receiving anything from the victim’s estate. Denice secured a judgment against Andrew for $247,531.23 (three times the amount he had taken); the handwritten will and power of attorney were also invalidated. The judgment was reduced by $65,155.99 that Denice had collected from Andrew by that time.

Bridget lived another five years after being removed from her filthy home and the “care” she had been receiving. After she died in 2010, Andrew tried to reassert the handwritten will naming him as beneficiary. He also challenged Denice’s appointment as guardian and conservator, and the award of damages and attorneys fees.

The probate judge ultimately found that Andrew had been disinherited by his exploitation, that he had no basis for seeking Denice’s removal as guardian and conservator, that Bridget’s prior will (which had left nothing to Andrew) was valid, and that the judgment against him was proper. When Andrew appealed, the Court of Appeals agreed on every point.

It is worth noting, as the Court of Appeals does, that much of probate court’s ruling against Andrew is based on his failure to proceed properly in the underlying lawsuit. He answered the complaint with a general denial, but without specific allegations that would support his argument. His response to a motion for entry of judgment against him did not challenge the factual allegations, which were thus assumed to be correct. He filed numerous pleadings and motions, but apparently without good legal advice.

The final resolution of Bridget’s guardianship/conservatorship/probate case, though, was clear. Bridget was a vulnerable adult, impaired by her diminishing mental capacities. Andrew was her caretaker (he claimed that they held themselves out as a married couple, but he acknowledged that they were never actually married), and owed her a duty not to commingle their assets or take advantage of her. He breached that duty by transferring her assets into his own name. He might have also neglected her, though the probate court never had to reach that question.

Arizona law at the time provided for automatic disinheritance of someone who exploits a vulnerable adult (it has since been changed to permit, but not require, the court to order disinheritance). It also provided for damages automatically set at three times the amount actually exploited (it has since been changed to allow the court to enter judgment of up to two times the amount of damages). The Court of Appeals upheld the orders entered by the probate court under the “vulnerable adults” statute. In Re Garner, Deceased, February 25, 2015.

Even though Arizona’s law has been relaxed somewhat, it remains stronger than the similar provisions in many other states. Although it is often hard to recover damages for abuse, neglect or exploitation of vulnerable seniors, sometimes the legal tools actually work fairly well. Similar stories might be told in other states, though we don’t hold ourselves out as experts on other states’ laws or practices. But if you know someone who has been taken advantage of in similar circumstances, we strongly suggest that you get good legal advice to consider whether there might be some recourse to recover lost assets and, much more importantly, protect vulnerable seniors and improve their lives.

Nursing Home Arbitration Agreement May Not Be Enforceable

NOVEMBER 17, 2014 VOLUME 21 NUMBER 42

If you have recently signed a family member (or a friend, or yourself) into a nursing home or other care facility, you probably have been presented with an agreement to submit all disputes to arbitration. Such provisions are very popular among the facilities themselves, though most individuals who sign them may not understand or appreciate what they are agreeing to. A recent Arizona appellate decision calls the scope of those provisions into question.

Martha Anderson (not her real name) was admitted to a Phoenix-area nursing home four different times in 2011, as her condition worsened and improved several times. After each of the first two admissions, her daughter Mary signed documents on Martha’s behalf. The documents included an agreement, on behalf of her mother, to submit any disputes that might arise between Martha and the nursing home to the arbitration process. For the third and fourth admissions, no one asked her to sign the arbitration agreements again.

Martha’s condition worsened, and she died in the nursing home in 2012. Mary initiated a probate proceeding and then sued the nursing facility, alleging both that the facility’s care led to her mother’s death and that the care amounted to abuse or neglect of a vulnerable adult. The nursing home moved to dismiss the lawsuits, pointing out that Mary had agreed to arbitration instead of a court trial.

The judge hearing Mary’s lawsuit agreed, and dismissed her case. That meant that Mary would have to submit to binding arbitration. Instead, she appealed the dismissal.

The Arizona Court of Appeals agreed with Mary, at least in part. The appellate court determined that the arbitration agreement was not enforceable as to either of the primary portions of Mary’s lawsuit. First, the judges noted that Mary signed the agreement on her mother’s behalf, not her own — and the wrongful death claim she had brought against the nursing home belonged not to her mother (or her mother’s estate) but to the surviving family members. If Martha had signed the agreement, she could not force her children to submit their claims to arbitration, and so Mary could not bind them when signing on her mother’s behalf.

In the particular facts of Martha’s nursing home admissions, the appellate judges also declined to apply the arbitration agreement to the remaining abuse/neglect claims. Because no new arbitration agreement was signed for the third and fourth admissions, Mary had not agreed to arbitrate her mother’s claims arising during those stays.

Mary had also argued that the arbitration agreements were unenforceable because they were simply unconscionable. The appellate judges rejected that argument, finding that she had not shown that the method of securing her signature, or the cost of arbitration would be an undue burden on her. Of particular importance in this finding: both of the agreements that Mary signed clearly indicated that they were voluntary, that her signature was optional, and that her mother’s admission and care would not be affected if she did not sign the agreements. Estate of Aspeitia v. Life Care Centers, Inc., October 21, 2014.

Why would someone in Mary’s position voluntarily sign an agreement to submit any future claims to binding arbitration? It is not clear, as there are few benefits accruing to the patient in such a situation. Benefits to the facility are much more obvious: the arbitration process is much less expensive, less likely to result in significant awards, and less prone to the strong reactions that jurors sometimes evidence.

This is not the first time Arizona courts have addressed arbitration agreements in nursing home settings. In 2013 we reported on another case, in which the Arizona Court of Appeals ruled that the arbitration agreement was unconscionable. Why was that agreement overturned, while Martha’s agreement was voided only because it was not signed for her last two admissions? Because in the 2013 case, the evidence was clear that the patient (who was still living and filing the lawsuit himself) would have to come up with over $20,000 just to initiate the arbitration proceeding.

What message does Martha’s case have for others? First, it needs to be clear that it is limited to Arizona — other states have addressed similar agreements to submit to binding arbitration, and they have been approved or rejected based on both similar and different theories. State law really does matter.

Perhaps a better question to consider, though, is what you might do when admitting a loved one to a nursing facility. Should you sign an arbitration agreement? What happens if you do not?

First, the arbitration provisions will probably be in a separate document or separately spelled out in a combined agreement (requiring your signature on that section). The arbitration provisions are likely to have language like Mary confronted, too — telling you that your signature on that section (or that separate form) is optional. Don’t sign that provision and you will not be bound by it. We think you ought to go further, in fact. Cross out the arbitration portion. Write “no” next to it. Make it clear that you didn’t just forget to sign, but that you specifically refuse the offer of binding arbitration.

Should you have a lawyer review your nursing home contract before you sign? Yes. Here’s an important benefit: it buys you time, to consider the significance and effect of your signature. Tell the facility that you’ll get the agreement back to them as quickly as you can get with your lawyer and review it.

What you really want, of course, is not to have a claim against the nursing facility at all. In other words, you want your family member’s care to be excellent, and to have no adverse outcome. To that end, keep close tabs on the care at the facility. Challenge staffing levels, care decisions, diagnoses and accommodations made by the facility. You want the caretakers (and, in fact, the facility itself) to view you as a concerned advocate, and not an angry and dissatisfied irritant — but you want to maintain your level of concern and oversight.

Good luck. It is really difficult to have a family member in the nursing facility. It is more difficult for them; help them as ably as you can.

Reporting Abuse, Neglect or Exploitation of Vulnerable Adults

DECEMBER 23, 2013 VOLUME 20 NUMBER 48

As people live longer and the elderly population increases, so does the likelihood of abuse, neglect and exploitation of vulnerable adults. Lawyers, accountants, doctors, nurses, caretakers, bankers — indeed, any professional — faces a growing probability that at some point they will be confronted with the issue of whether to report suspected abuse, neglect or exploitation. For lawyers, especially, the ethical requirement that client confidences be maintained can complicate the problem.

There were over 1,600 allegations of abuse, neglect or exploitation of vulnerable adults reported in Pima County, Arizona (the Tucson area) last year. Surprisingly, fewer than 1% of these were reported by legal professionals. Arizona law imposes an affirmative duty on attorneys to report suspected exploitation of a vulnerable adult to the authorities. Arizona Revised Statutes § 46-454(b) requires any attorney who is responsible for preparing the tax records of a vulnerable adult, or responsible for any “action concerning the use or preservation of the vulnerable adult’s property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that exploitation of the adult’s property has occurred or that abuse or neglect of the adult has occurred shall immediately report or cause reports to be made …”

Keep in mind that an individual does not have to be “elderly” to be a vulnerable adult. Any adult who is unable to protect himself or herself from abuse, neglect or exploitation by others because of a physical or mental impairment is a vulnerable adult. The definition of vulnerable adult is broad and so are the types of abuse and exploitation that the statute is intended to cover. Financial exploitation of vulnerable adults occurs with alarming frequency and in many cases goes unreported because the victim may not be aware of the ways in which he or she is being exploited.

Reports of suspected abuse can be made to the City Police, County Sheriff or (statewide) Adult Protective Services. The Pima County Public Fiduciary also handles cases of suspected financial exploitation. Even if suspected abuse is later found to be unsubstantiated, there are no penalties for good faith reporting. Any attorney who makes a report in good faith is likely to have some civil and/or criminal immunity from liability. You can make a report anonymously, however, the law requires that the report be made immediately, otherwise you may be found guilty of a class 1 misdemeanor.

So, you may be reading this and thinking: “how can I uphold my duty of confidentiality to my client if I suspect that he or she may be a victim of abuse, neglect or exploitation?” How is it possible to balance this ethical duty when reporting of suspected abuse is mandatory? In Arizona, you will not breach your duty of confidentiality if you reveal only information to the extent you believe is necessary to comply with a law that requires the disclosure of such information.

Arizona’s version of the ethical rules governing lawyers provides specific guidance to attorneys in cases where an attorney believes that his or her client of diminished capacity is at “risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest.” In these specific cases, an attorney may take “reasonably necessary protective action,” including consulting with individuals or entities who may be able to protect a client with diminished capacity.  In taking any protective action, among other considerations, an attorney may be guided by the client’s best interests or the wishes and values of the client.

Pima County (and Arizona) is home to a growing number of seniors and vulnerable adults. As we consider the ways our practices can build a healthy community, we must remember the duty of advocacy we owe our clients. If you suspect a case of abuse is occurring and feel unsure about your duty to report, then reach out to one of our colleagues who specialize in professional responsibility or call the Arizona State Bar Ethics Hotline.

What about lawyers practicing in other jurisdictions? State laws vary — many states have mandatory reporting requirements but quite a few of them either do not extend to, or specifically exempt, lawyers from coverage. The ethical rules permitting disclosure when the client is at risk, however, have been adopted in substantially similar form in almost every state.

What about other professionals? Arizona’s mandatory reporting law is very clear: doctors and other medical providers are covered as to reporting abuse, neglect and exploitation, and accountants and tax preparers are covered as to reporting exploitation. Other states vary, with some focusing on medical providers and others on social workers and government officials. If you work with seniors and/or adults with diminished capacity, you should check into your state laws regarding mandatory reporting of abuse, neglect and/or exploitation.

Physical Limitations Can Lead to “Vulnerable Adult” Finding

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.

What is the Value of a Senior’s Life?

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.

Two California Cases Illustrate Types of Elder Abuse, Neglect

SEPTEMBER 30, 2002 VOLUME 10, NUMBER 13

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.

Nurse’s Aide Disciplined Based On Deceased Patient’s Affidavit

JULY 8, 2002 VOLUME 10, NUMBER 1

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.

Family Charges Physician With Neglect In Supervision Of Care

JULY 17, 2000 VOLUME 8, NUMBER 3

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.

Professionals Must Report Abuse Of Vulnerable Adults

MAY 15, 2000 VOLUME 7, NUMBER 46

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.

Adult Home Operator Pleads Guilty In Death Of Resident

MARCH 27, 2000 VOLUME 7, NUMBER 39

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.

©2017 Fleming & Curti, PLC