Elder Abuse Investigations: Coming Soon to a Care Center Near You

The California State Attorney General, Kamala D. Harris, has plans to “aggressively” pursue and build more criminal cases against nursing homes as reported in The Sacramento Bee.

Much of the article is discussed within the backdrop of Don Esco’s story. Mr. Esco recently died at the age of 82. The article describes how he measured the passage of time over the last couple of years by exactly how much time had passed since his wife’s death in 2008. Johnnie Esco, Mr. Esco’s wife of 61 years, spent just 13 days at a care center in Placerville before dying. Mr. Esco was convinced that it was a criminal matter, the state concurred and four years, seven months and 24 days after Mrs. Esco’s death one of the nurses charged in connection with the death pleaded no contest to the charge of felony elder abuse. Mr. Esco did not live long enough to see this development in the case, but his “persistence has made its mark on California” states the article.

Investigating and proving instances of elder abuse presents multiple challenges which requires more than the expertise of a single investigator. Attorney General Harris is forming specialized teams to investigate and pursue situations that potentially merit criminal charges. The three teams, two in Southern California and one in Sacramento, will consist of an attorney, a nurse, and an auditor. Each team will also be supported by a “medical person with a specialty in geriatrics” according to Harris’ office.

Mark Zahner, chief of prosecutions for the Attorney General’s Bureau of Medi-Cal Fraud and Elder Abuse, acknowledges the myriad of challenges the teams face in pursuing criminal charges. These cases are oftentimes labor-intensive with voluminous medical records to examine. Expert testimony is needed to back up or refute procedures, treatments, or medication overseen by staff members involved in these investigations. Zahner goes on to describe that incomplete medical records create issues, especially since the records are, in many cases, completely controlled by the individuals under investigation. Potential witnesses of abuse include other patients who themselves might suffer from mental disability thus bringing their credibility into question. The “fundamental” issue investigators face is whether or not the state can prove beyond a reasonable doubt that an individual intended to harm a patient. Plus, there are usually multiple caregivers involved so it is difficult to choose which one to single out. It could be very hard to prove which particular caregiver was on call at a particular time when so many caregivers were in and out of a patient’s room.

The final hurdle to overcome in these investigations, Zahner’s office points out, does not involve burden of proof issues or procedural issues. It is much simpler. Many of the care facilities are owned by large corporations with deep financial pockets and teams of powerful attorneys. Investigators must face more experienced attorneys who make the process much more complicated and expensive for the Attorney General’s office.

The investigators must also exercise prosecutorial discretion. They are not focusing on isolated incidents or situations where mistakes were made by lower level employees, but instead on situations where “systemic problems” of elder abuse or neglect are suspected. Zahner says they are focusing on people who cut corners and costs to the detriment of the patients in order to make more money. The Attorney General’s office is receiving mixed results from groups on both sides of the investigations. Mark Reagan, attorney for the California Association of Health Facilities, says that his association’s support of the attorney general’s initiative depends on the prosecutorial discretion as mentioned earlier. It is obvious that everyone opposes elder abuse and neglect, but there are stiff penalties for criminal convictions so the investigators need to ensure that they are going after the truly guilty parties. According to Reagan, the law requires that a facility be excluded from receiving Medicare or Medicaid funding if the owner is convicted of just a single act of criminal elder abuse. One isolated incident, if criminally prosecuted, could result in what Reagan refers to as the “death sentence.” It is important for the Attorney General’s office to use its resources to stop the systemic offenders who operate in a manner that virtually assures neglect. Overzealous prosecution could lead to facilities shutting down or increased costs to the patients; both undesired results.

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