Vol. 77, No. 8, August
2004
Seeking Justice in Death's Waiting Room:
Barriers to Effectively Prosecuting Crime in Long-term Care
Facilities
Although Wisconsin law shows a robust legislative resolve to combat
the abuse of elderly patients and residents in long-term care
facilities, the reality is that there are many barriers to eliminating
abuse and prosecuting the abusers. Police, prosecutors, and policy
makers all need to understand the nature of elder abuse in order to
protect a growing population of vulnerable individuals.
Sidebars:
by William E. Hanrahan
Lillian sat hunched over in her wheelchair. Her voice was faint; her
energy had been almost completely depleted from our brief conversation.
Laboring over each of her words, she fought an unending battle with her
slipping upper plate. In mid-sentence, she paused and, with a quizzical
expression, apologized for losing her train of thought. She then
mustered enough strength to reach out and place her trembling hand on
mine. As her bony fingers, covered with paper-thin skin, gave my hand a
slight squeeze, she assured me, "Don't worry, I don't embarrass easily
... after all, look where I'm sitting ... right here in death's waiting
room!" Then, raising her head for the first time, she looked me in the
eyes and flashed an impish grin, stopping only to reinsert her false
teeth.
Lillian was a crime victim. At age 83, she was a resident of a
200-bed nursing home and had suffered severe neglect, resulting in
malnutrition, bedsores, and broken bones. At this crime scene, however,
there were no police officers, chalk outlines on the floor, or forensic
technicians. In fact, the opportunity to gather any physical evidence
had been lost forever. The only things that remained possible were a
review of medical records and this attempted investigative interview.
The interview, although warmly received, did not yield any information
useful to the prosecution. As with so many other elderly victims,
Lillian was unable to recall any of the details of her victimization.
And, like many of the victims of institutional elder abuse, Lillian was
shut off from the outside world and had been unable to report her
maltreatment to the authorities. She suffered in silence for weeks until
finally, upon her hospitalization, emergency room staff called the
police.
Lillian is a typical member of a unique class of particularly
vulnerable crime victims: the frail elderly living in substandard
long-term care facilities. The term "substandard," as used herein, is
not a concept defined by law; rather, it connotes the type of facility
most likely to be seen by prosecutors of elder abuse. Common features of
a substandard facility include a consistently low staff to patient
ratio, high employee turnover, increased dependence on temporary
workers, an incompetent or absentee administrator, and a history of
regulatory violations. The reality for residents of such a facility is
that life becomes a daily struggle to maintain a mere shred of dignity;
their medical, nutritional, and hygiene needs are routinely neglected,
their privacy is lost, and their emotional wellness is compromised.
Most people would be outraged by the inhumane treatment of Lillian
and others who must call a substandard facility home. Sadly, to those
who prosecute crimes of abuse and neglect in this state's facilities,
Lillian's story represents an all-too-familiar scenario. Moreover, to
the criminal prosecutors of this state, the unspoken truth is that,
tragically, crimes of institutional elder abuse are unlikely to ever
reach the criminal courts.
Although Wisconsin law shows a robust legislative resolve to combat
the abuse of recipients of health care services, the growing phenomenon
of elder abuse will continue to present numerous formidable challenges
to police, prosecutors, and policy makers.1
Abuse Tolerated
Perhaps at the most basic level, current barriers to effective
prosecution may be said to originate from a tacit, societal acceptance
of the substandard care of the elderly.2 It
is axiomatic to prosecutors that, almost invariably, cases involving the
intentional abuse of a patient occur when only the perpetrator
and victim are present. By contrast, cases involving the
neglect of a patient by health care staff appear to occur more
often in the presence of other staff members. In a substandard facility,
workers frequently do not even recognize inadequate care as aberrant,
because the informal, negligent practices have, de facto, supplanted the
facility's formal, written procedures. For a prosecutor of institutional
elder abuse, the quest for justice often begins only when the
consequences of abuse become subject to the scrutiny of an outsider.
This outsider is often a new employee, a visitor to the nursing home, or
emergency personnel.
Unreported and Underreported
Unlike other statutory schemes designed to protect vulnerable
populations, the elder abuse reporting statute in Wisconsin does not
mandate reporting.3 Thus, even when
outsiders witness the abuse of a frail, demented, noncommunicative elder
in the course of their profession, they are not required to report that
crime to law enforcement authorities.4
The Wisconsin Administrative Code, however, requires nursing homes in
which suspected abuse has occurred to conduct an internal investigation
and self-report the incidents of suspected abuse.5 Yet, in a substandard facility, rarely does such
mandatory corporate introspection actually identify any significant
systemic deficiencies that may have resulted in the abusive or
neglectful incident. Rather, a finding of abuse or neglect, if made at
all, generally affixes blame to the lowest paid, least educated, and,
thus, most expendable employee, often a certified nursing
assistant.6
Untimely Involvement of Law Enforcement
When a facility does self-report, as required, the complaint is filed
with the Wisconsin Department of Health and Family Services (DHFS), not
with the police. If criminal investigators are notified at all,
notification typically occurs after the internal investigation, the
preliminary finding of abuse, and the self-report to the DHFS.
Invariably, that passage of time results in the loss and destruction of
important evidence. After a homicide that was recently investigated, for
example, the blood-stained sheets, essential to a determination of the
cause of death, were taken from the hospital bed and discarded by
housekeeping staff. In some suspected nursing home homicides, the
decedents' bodies had been removed from the facility and embalmed,
buried, or cremated before criminal investigators arrived. Similarly,
after a recent sexual assault, potential DNA evidence was lost when the
victim's pajamas were sent to the facility's laundry.
Interestingly, however, in none of these cases was there any evidence
to suggest that staff had conspired to obstruct a criminal investigation
by intentionally destroying evidence. Rather, it appeared, quite simply,
that a pragmatic nursing home administrator, ever mindful of the costs
associated with the now-vacant bed, was simply attempting to ready the
room for the next occupant.
An Unfamiliar Beat for Police
The early intervention of a police agency is almost essential to an
effective prosecution. Police detectives often are well-trained in
criminal procedure, the processing of a crime scene, and the forensic
interview. Police traditionally, however, have not had primary
responsibility for investigating nursing home crimes. Because police may
lack consistent exposure to and have little specialized training in
nursing home crimes, they often may correctly identify the essence of
the criminal wrongdoing but fail to recognize that an actual crime had
been committed.
For example, paramedics accompanied by police officers rescued a
frail elder who was found hanging by one leg, while tied with shoelaces
to his wheelchair. The investigator concluded that, although the manner
by which this elder was restrained was patently dangerous and obviously
inhumane, "it did not appear that any criminal conduct was involved."
The investigator, in closing his investigation, actually deferred to the
judgment of the very professionals who should have been considered
suspects, suggesting that "This matter is best handled internally within
the facility."
Similarly, in another facility, a male stranger had been found in the
room of a noncommunicative, incompetent elderly patient. The patient's
nightgown and diaper had been thrown on the floor of the room and the
man was observed having sexual contact with the patient. The police
supervisor on the scene correctly concluded that sexual contact occurred
yet determined that it was "consensual," and thus the complaint was
deemed "baseless."7
"Intentional Neglect"
In nursing homes, intentional neglect (an acceptable oxymoron in the
legal lexicon) generally involves a low-level caregiver who fails to
follow established procedure, resulting in injury to a resident. Often,
this caregiver, upon realizing the magnitude of the failure, will
attempt to conceal the injury and, in the process, exacerbate the
consequences of that injury, thereby increasing the patient's suffering.
The caregiver's apparent belief, which, in fact, may be well-founded, is
that the injury, when discovered, will be treated without any inquiry,
or at least with no conclusive finding as to its true origin.
Malnutrition, Dehydration, and Bed Sores
Along that same continuum of culpability, there exists a more
insidious but equally devastating type of nursing home crime, whereby
the decreasing quality of care in certain facilities has been found to
gradually increase the incidence of patient suffering.8 This is especially true among a growing segment of
the nursing home population that is particularly frail and in need of
palliative care.9 These patients often lack
mobility, due to a stroke or other such impairment. They may experience
difficulty ingesting food due to a swallowing disorder or have a
decreased desire to eat resulting from depression or because of missing
teeth or improperly fitting dental appliances.10
These at-risk patients depend on staff for personal assistance at
every meal. What they receive in a substandard facility, however, is a
wheelchair ride to the dining room, a plate of food placed in front of
them, 15 minutes to attempt to eat, and then a ride back to their rooms.
The logistics of feeding all residents within a designated time seems to
confound and overwhelm the staff, even though the exact same battle is
fought on a daily basis. Under these circumstances, the loss of body
weight and body mass is as inevitable as the increased level of
mortality among these elders.11
A nonambulatory patient may lie in bed or be propped up in a
wheelchair all day in the substandard facility. As the motionless
patient waits for assistance, often for hours, in urine-soaked clothing,
skin begins to break down, eventually resulting in gaping wounds in the
flesh (decubitis ulcers). The minimum expectation of care for such
patients is that nursing staff will provide repositioning every two
hours, that the skin will be kept clean and dry, and that wounds, should
they develop, will be effectively treated.12
The Assignment of Blame
The supreme challenge to prosecutors in charging such cases of
criminal neglect is to ascertain where the greatest degree of criminal
culpability lies. Obviously, in random cases of intentional misconduct,
primary culpability resides with the perpetrator. Dehydration,
malnutrition, and decubitis ulcers are not, however, the result of a
singular act or omission. Rather, these conditions develop over time and
often in the presence of numerous health care professionals. From the
nursing assistant who ignores the nurse call light and patients' pleas
for assistance, to the administrator who disregards patient acuity
levels and who views the minimum staffing formula of regulators as an
optional goal rather than as a requirement, all staff who have had
contact with this patient may bear some degree of responsibility for the
consequences of their poor judgment or indifference.13
In State v. Serebin,14 then
Milwaukee County Assistant District Attorney Charles Schudson engaged in
a struggle to locate the epicenter of criminal culpability in a
substandard facility. At the conclusion of a painstakingly thorough
investigation, Schudson chose to charge the administrator, Stephen
Serebin. In the course of trial, the jury learned of numerous internal
memos, including one from the director of nursing to Serebin, that left
no reasonable doubt as to where criminal responsibility should properly
reside:
"[I]f we did not have adequate staff we would have less time to walk
our patients, we would not be able to feed them promptly, we would not
be able to toilet them promptly. More patients would have to remain in
bed ... consequently our patients would be subjected to the possibility
of getting more skin breakdowns [sic], more contractures, and ... bed
sores or decubiti."15
At that time it was believed the Serebin decision would be
the shot heard throughout the nursing home industry.16 In fact, in many ways, the industry did hear the
Serebin message loud and clear. Unfortunately, what
administrators of substandard nursing homes seemed to have learned from
Serebin was to more effectively isolate themselves from the
feedback of the care providers, thus providing a layer of plausible
deniability between themselves and the criminal tortfeasors. It also
appears, at least anecdotally, that Serebin promoted a
risk-conscious system of charting, wherein employee observations of
inadequate care - if documented at all - are kept in an indecipherable
format in charts that are hidden from view of investigators.
Since the Serebin decision, the once-resolute message of
general deterrence has been diluted; the promise of enhanced
accountability has dissipated; and the type of evidentiary paper trail
followed by Schudson appears to have been swept away in the tailwinds of
the Serebin controversy.
Options Available to the Prosecution
In the attempt to break down the walls protecting unscrupulous
nursing home operations, the prosecution is armed with both a ball peen
and a sledge hammer. The ball peen hammer is directed at the bricks and
mortar protecting the transgressing individual, while the sledge may be
used to completely dismantle the corrupt organization.
In Wisconsin, a corporation - like an individual - may be charged
with a crime.17 Since the corporation, as a
fictional individual, must necessarily act through its agents, courts
have found that agents who are acting within the scope of their
employment may subject the corporate principal to criminal
penalties.18 In the criminal courts, the
corporation is not exempt from responsibility for the actions of agents
even when the agent acts in excess of the authority granted by the
corporation or even when the conduct is expressly prohibited by the
corporation.19 Thus, a nursing home that
tolerates the de facto, daily neglect of residents will not find shelter
in corporate mission statements, written policies, or treatment
protocols purporting to promote high standards of care.
For nursing home enterprises that accept public funds through the
Medicaid program the stakes are even higher. Section 49.49 of the
Wisconsin Statutes provides that when a health care provider bills the
government for health care services, the provider must have actually
provided those services.20 Thus, when a
nursing home admits an indigent elder, and the public is paying the
bill, a reasonable expectation arises that the elder will not just be
warehoused but actually will be cared for in a manner consistent with
industry standards. The failure to meet those basic standards
constitutes Medicaid fraud, potentially subjecting both those
individuals acting in their individual capacity and those acting within
the scope of their agency and the corporation alike to severe criminal
penalties. Further, if it can be proved that a pattern of such
fraudulent practices exists within a nursing home enterprise, the
anti-racketeering prohibitions of the Wisconsin Organized Crime Control
Act provide comprehensive criminal and civil remedies to the
prosecution.21
Profound Collateral Consequences
Notwithstanding all of these tough-sounding options, in choosing to
swing the sledge hammer of justice prosecutors would be well-advised to
consider more than just the criminal code before springing into action.
In a case of criminal neglect in which the only clear villain appears to
be a corporation, the value of a swift criminal justice response can be
completely negated if the full ramifications of such action are not
adequately anticipated.
Currently, under federal law, conviction of a corporation that
provides care for Medicaid patients will result in mandatory exclusion
of the corporation from this federally funded program.22 Although on the surface it appears to make
considerable sense to exclude thieves from future opportunities to
steal, the consequences of this exclusion are felt by the very
individuals that this provision purports to protect. Even more
significant to the residents of a nursing home, the facility is not just
a provider of medical services but a place they call home, regardless of
how dysfunctional and potentially dangerous it may be. The forced
relocation of frail, elderly residents is often a frightening,
disorienting, and isolating experience. And for many elders, such a move
at this precarious stage of life likely would be their last. Transfer
trauma has been significantly correlated in this population with an
increased hastening of the onset of death.23
Current Trend: Decentralization
|
Hanrahan
|
William E. Hanrahan,
Hamline 1988, is an assistant attorney general and the head of the
Wisconsin Department of Justice Medicaid Fraud Control Unit. He also is
an adjunct faculty member of the Marquette University College of
Professional Studies and the Edgewood College Department of Sociology,
where he teaches classes in criminal law and procedure. The views
expressed herein are solely those of the author.
The elderly population in Wisconsin is expected to drastically
increase in the coming years.24 At the same
time, if the current trend continues, fewer of these aging baby boomers
will live in nursing homes.25 Instead, it
appears that care increasingly will be provided in the home and in
smaller scale facilities. These smaller facilities are thought to be
more consumer-friendly, because they more closely resemble a warm and
comfortable home environment than an institution. Gone are the long,
cold, linoleum hallways, fluorescent lights, and the smell of urine. In
are the tapestries, dried flower arrangements, and baskets of
cinnamon-scented potpourri.
The move to community-based facilities is attractive not just to
consumers. The stampede into these facilities also has been embraced by
public and private insurers, because the costs associated with placement
in such facilities represent a significant savings compared to the cost
of care in a conventional institutional setting.26 To the elder abuse prosecutor, however, this
budget-balancing, "Norman Rockwellesque" vision represents an ominous
confluence of a variety of significant elder abuse risk factors. The
practice of having under-trained, uncertified, low-paid staff working
alone with up to six residents on the overnight shift does indeed save
dollars, yet these are some of the same factors that have been shown to
result in a dramatic reduction in the quality of care.27 Not only is the presence of outsiders reduced in
these facilities, but this continued movement toward decentralization
undoubtedly will stretch regulators' limited investigative resources
nearly to the breaking point, resulting in a marked decrease in
oversight.28
The Future
As the elderly population begins to swell, it will be essential for
law enforcement to rededicate scarce resources to combat the likely rise
in cases of abuse and neglect. The creation of training programs, the
establishment of specialized investigative and prosecutorial units, and
the development of court procedures to accommodate the needs of those
who suffer the infirmities of aging are likely to become some of the
fundamental components of any enhanced law enforcement response.
As more Wisconsin residents join the ranks of an increasingly vocal
senior citizenry, they will demand protection from providers of
substandard health care services, whether at home, in a nursing home, or
in a community-based facility. As a result, future policy-makers, in
their good faith attempts to contain the rising costs of long-term care,
will be forced to reevaluate the efficacy of an increased reliance on
self-reporting as a substitute for regulation. The obvious nexus between
the reduction of oversight in long-term care facilities and the
increased suffering of residents can no longer be ignored.29
Finally, it will be incumbent on the health care industry itself to
bring its considerable aggregate power to bear on its minority of
members that tarnish the industry's reputation by demonstrating a
callous indifference to human suffering by exploiting the
defenseless.
Until such time, Wisconsin prosecutors will endeavor to fight the
good fight and, while never losing sight of the ends of justice in each
case, through their efforts promote the development of a more
compassionate, humane, and responsible approach to the provision of
long-term care in Wisconsin.
Endnotes
1Wis. Stat. section 940.295
provides sweeping prohibitions against virtually every conceivable type
of neglect and abuse occurring in almost all health care facilities,
including in private homes.
2Nursing Home Complaints (GAO/HEHS
-99-80, March 22, 1999).
3See Wis. Stat. §
46.90.
4Except for wounds reasonably
believed to be the result of criminal conduct under Wis. Stat. section
146.995.
5Wis. Admin. Code § HFS
13.05.
6For a general discussion of the
status of certified nursing assistants, see Erin Hatton and Laura
Dresser, Caring About Caregivers: Reducing Turnover of Frontline Health
Care Workers in South Central Wisconsin, Oct. 2003.
7"Consent" defined, Wis. Stat.
§ 940.225(4); contrast with Wis. Stat. § 940.225(2)(c) and
940.225(2)(g).
8Morris, Jones, Morris, Fries,
Proximity to Death, a Modeling Tool for Use in Nursing Homes.
9Id.
10American Dietetic Association,
Combating Malnutrition in Nursing Homes - Testimony Before the Senate
Special Committee on Aging, July 27, 1988; National Policy and Resource
Center on Nutrition and Aging, Reducing Malnutrition and Dehydration in
Nursing Homes, Oct. 1, 1999 - Sept. 30, 2000.
11American Dietetic Association,
Combating Malnutrition in Nursing Homes - Testimony Before the Senate
Special Committee on Aging, July 27, 1988; National Policy and Resource
Center on Nutrition and Aging, Reducing Malnutrition and Dehydration in
Nursing Homes, Oct. 1, 1999 - Sept. 30, 2000.
12Treatment of Pressure Ulcers
Clinical Practice Guidelines, U.S. Dept. of Health & Human Services
Agency for Health Care Policy & Research, Publication #95-0652,
December 1994.
13Robert Pear, Nine Out of
Ten Nursing Homes Lack Adequate Staff, N.Y. Times (Feb. 18,
2003).
14119 Wis. 2d 837, 350 N.W.2d 65
(1984).
15Id. at 855.
16John W. Pray, State v.
Serebin: Causation and the Criminal Liability of Nursing Home
Administrators, 1986 Wis. L. Rev. 339.
17State v. Vulcan Last
Inc., 194 Wis. 636, 217 N.W. 412 (1928).
18Id.; State v.
Steenberg Homes Inc., 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App.
1998).
19State v. Vulcan Last
Inc., 194 Wis. 636, 217 N.W. 412 (1928); Wis. J.I. Crim. 420.
20Wis. Stat. § 49.49(1).
21Wis. Stat. §§ 946.80
- .88.
2242 U.S.C. ch. 7.
23Jennifer L. Williamson, The
Siren Song of the Elderly: Florida's Nursing Homes and the Dark Side of
Chapter 400, Am. J. L. & Med. (1999).
24U.S. Bureau of the Census,
Wisconsin's Population Projections: 1995 to 2025.
25Administration on Aging, A
Profile of Older Americans: 2002, Table 30A.
26Associated Press, U.S.
Oversight of Medicaid Criticized, N.Y. Times (July 8, 2003).
27Id.
28Id.
29Claims that increased Medicaid
reimbursement, rather than increased oversight, results in better care
lack empirical support. The New Math of Old Age: Why the Nursing
Home Industry's Cries of Poverty Don't Add Up, U.S. News &
World Report (Sept. 30, 2002).
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