Deficiencies in assisted living homes to be addressed

This is an update to a previous blog post.

In response to a three-part series by The San Diego Union Tribune, lawmakers have pledged to take action and ramp up efforts so the area’s assisted living home do not fall short.

The findings from the investigation, which was done by the U-T in conjunction with the CHCF Center for Health Reporting at USC, shocked legislators. It showed that people accused of abuse and neglect are rarely prosecuted, and the maximum fines are staggeringly low.

It is inexcusable that people who abuse and neglect those that they are supposed to be caring for are not being properly prosecuted. Thankfully it has now been brought to the attention of lawmakers. This can pave the way for stronger legislation and action to protect those who are being harmed.

Elder abuse is rarely investigated

Elder abuse and sexual assault are rarely investigated at assisted living homes in California.

There are about 12,000 complaints each year, but members of law enforcement have referred only 82 to state prosecutors as cases since 2002.

This raises serious issues concerning the integrity of the Department of Social Services and their regulatory system. At the same time, there have been examples of administrators that operate and staff that work at these senior care facilities who have not served the public well. These may be isolated cases, but it strains credulity there are not sufficient safeguards employed to prevent the number and frequency of injuries and tragedies.

 

Officials warn about lottery scam

A new lottery scam that targets the elderly is offering millions but instead gives nothing.

A San Diego couple lost about $30,000 to the scheme, which used an official San Diego County seal on a letter, and a photocopy of a check for $2.5 million made out to the couple. The letter told them that to get the money, they first had to pay taxes on the prize, which they did, also revealing their bank account information and Social Security numbers to the scammers, who then took everything.

It is unfortunate that these scammers are trying to take advantage of the elderly and of veterans. This sad story is a good reminder to be very skeptical and not to send money and personal information to people without first ensuring that your information will be safe and that things are legitimate.

 

Sacramento caregiver arrested in death of 88-year-old

Commentary by Sam Spital, Criminal Defense, Personal Injury, Professional & Occupational Licensing Attorney:

“On February 13, 2013, the Modesto Bee newspaper and electronic edition published an article in which Silvia Cata, the 52 year old owner of a long-term nursing care facility, Super Home Care, in Sacramento, was arrested for multiple criminal charges, including involuntary manslaughter and felony elder abuse against Georgia Holzmeister, an 88 year old patient who was suffering from Dementia that died as a result of reckless disregard of the basic duties in caring for patients. It was revealed that the victim suffered from blackened, Stage IV pressure sores on her buttocks causing sepsis, which is a life-threatening condition that occurs when any part of one’s body develops a toxic and severe response to bacteria or other germs. These are more commonly called pressure sores that form when patients are allowed to lie in one position for extended periods of time or simply not given the proper attention that requires their body to be frequently rotated while confined to bed.

It is an elementary principal of nursing care that patients should not be permitted to lie in bed for any extended length of time without being taken out of bed, taken to the bathroom, use walkers or wheelchairs if not ambulatory,  and of course receive regular care and attention. Unfortunately, some long term care facilities operate on a very low budget due to the nominal reimbursement from Medicare and Medi-Cal; yet, this is inexcusable and the Administrators and nursing personnel have an ethical, moral and legal responsibility to place the patient above the financial remuneration they may receive. If it is not possible to make a profit and do the right thing for their patients, the facility should close its operations. In this case, the California Department of Social Services (DSS) ordered an involuntary closure pursuant to an interim suspension order according to the article.

A Deputy Attorney General will be prosecuting the case for the California Bureau of Medi-Cal Fraud, and the defendant faces up to 12 years in state prison. The author of the article did not provide any details or information regarding the number and licensure of employees of the facility, the census of the facility in question, prior employment or business history of the defendant nor indicate whether contact was made with defense lawyers that handle such cases. It appears this is the first manslaughter criminal case in California that has been filed against an owner of a nursing facility. The case has been reported in countless print and electronic media due to the gravity of the situation.

The following link: http://www.cdph.ca.gov/certlic/occupations/Documents/NursingHomeAdministratorAct.pdf provides a detailed outline and summary of the Nursing Home Administrator Act and the rules and regulations that govern Administrators. No Nursing Home Administrator license or Certified Nurse Assistant license could be found by my law firm in searching the online data for Sylvia Cata, the defendant in this criminal case.  A search of the BRN and BVNPT websites also failed to show an LVN or RN license issued to Ms. Cata.

Family members will likely file a wrongful death lawsuit against the long term care facility as well as the owner, and any of the employees and personnel who were negligent and caused the deadly injuries in the case at hand. This may also include the attending physician, nurses, and anyone that may have billed Medi-Cal and Medicare (such as a physical therapist, podiatrist, occupational therapist, etc. if any of these health care providers were in attendance on one or more days in the period of time leading up to the death of Ms. Holzmeister).

Defense counsel will need to perform a thorough and exhaustive investigation including conferring with the employees of the facility; patients and family members; pharmacists and doctors; utilize forensic experts to develop a defense; and in launching an offense seek to establish compelling mitigating facts and circumstances.”

–Sam Spital

 

California Attorney General Kamala D. Harris Announces Nurse Sentenced to 3 Years in Prison for “Convenience Drugging” Elder Patients

Commentary by San Diego Criminal Defense and California Professional License & Statewide Administrative Law Attorney Sam Spital:

“On January 9, 2013, the Sierra Sun Times, a local newspaper in Mariposa County, California, reported Gwen Hughes pled nolo contendere and was sentenced to three years in state prison for one count of felony elder abuse with a special allegation that the abuse contributed to the victim’s death. The article revealed the former licensed Registered Nurse ordered the administration of psychotropic medications to 23 elderly residents under care and treatment for Alzheimer’s or dementia at a skilled nursing facility who were noisy, complained &/or were argumentative as well as prone to wandering, to control and quiet them for the convenience of the staff and not for therapeutic reasons and/or prescribed by a medical doctor. According to the news article, the drugs accelerated the death of 3 patients, and all of the specific residents in question experienced an adverse physical reaction.

For a copy of the the Court Order previously suspending her license, you can click the following link:http://rn.ca.gov/public/rn260423.pdf The online license history of the former RN reveals she also allowed her license to expire (see: http://www2.dca.ca.gov/pls/wllpub/WLLQRYNA$LCEV2.QueryView?P_LICENSE_NUMBER=260423&P_LTE_ID=828) The article also noted the Medical Director of the facility, Dr. Hoshang Pormir, failed to conduct examinations and monitor the reaction to medications and as a result was placed on probation by the Court, required to make restitution in the civil lawsuits that were pending and to perform 300 hours of voluntary service.

Nothing was reported concerning any interview or dialogue with the nurse or physician, their prior employment and social history, mitigation and’/or remorse, if any. Since there are many factors considered in the sentencing of a defendant, these elements are critical to the analysis by a criminal court judge. Crimes are generally punished according to the seriousness of the offense. As a criminal defense lawyer as well as in administrative law matters, I argue in favor of mitigation, using some or all of the following elements: (1) a client’s prior criminal record; (2) her age; (3) her work history; (4) her social and family history, including use of drugs and/or alcohol; (5) her religious history; (6) whether a weapon was used in the offense. Clearly, the circumstances surrounding a crime may be of interest, however the defendant’s personal history can be persuasive as well as significant factors of rehabilitation and remorse.”

–Sam Spital

Twin brothers accused of scamming local sports fans (Sam Spital)

COMMENTARY BY SAM SPITAL, SAN DIEGO CRIMINAL ATTORNEY:

“KFMB Channel 8 CBS online news contains an article written on December 19, 2012 in which two 62 year old brothers were accused of conspiracy to commit mail and wire fraud. The story revealed a similar scam and their conviction in 1990 for group tours that were never provided to high school and middle school students, which resulted in the sentences of 27 to 30 years in state prison and restitution of over one-quarter million dollars. If convicted in the current criminal case, the twins each face up to 20 years in state prison as well as fines of at least $250,000.

Lacking even a scintilla of evidence of remorse, rehabilitation and extenuating facts and circumstances, the reporter went to the home of the two brothers, but no one came to or answered the door. A neighbor reported the brothers were friendly and took care of their elderly mother. The defense will likely assert the defendants did not have sufficient business experience, among other things, to follow elementary principles of accounting and maintain all funds received in a trust account, pay for costs and expenses as incurred or bills were received, and to employ sufficient and experienced employees in order to deliver on their contracts as well as to promise only what they were certain they could achieve.”

 

82-Year-Old Pleads Guilty to Manslaughter (Sam Spital)

Commentary by CRIMINAL DEFENSE LAWYER SAM SPITAL AND ASSOCIATES:

“In the Tuesday NBC Channel 7 online edition of the news it was reported on December 11, 2012 that an 82 year old woman pled guilty to Voluntary Manslaughter in connection with the shooting death of her long- time 57 year old friend who in a home they shared in San Diego from time to time were roommates. No motivation, mitigation, explanation or further information was reported, nor did the author of the article interview the Criminal Defense Attorney. In order for the sentencing hearing to have some value for the defendant, it is hoped the defense will look to these factors to present arguments and evidence on behalf of the real life tragedy.”

Man suspected of escaping police custody, beating elderly woman with handcuffs – Good Samaritan runs suspect down, police say (Sam Spital)

COMMENTARY BY CRIMINAL DEFENSE and PERSONAL INJURY LAWYER SAM SPITAL:

“ABC Channel 10 News on November 27, 2012 posted online their account of a suspect who had been arrested in the evening hours during the past weekend for burglary of an automobile and escaped before being completely handcuffed and placed in the SDPD cruiser; and who the following morning came across a 71 year old woman he violently attacked and beat on her head with the handcuffs, one of which was still attached to his wrist. An onlooker standing nearby ran to the aid of the innocent and unsuspecting victim. The suspect ran off but was eventually caught by the Good Samaritan. No other facts were posted in regards to the original crime, and the article was devoid of any other information as to the underlying reason and/or motivation for the vicious attack. Hence, it is unclear if the suspect will be charged with attempted murder, aggravated battery, assault with intent to commit great bodily harm, elder abuse, etc.

This scenario also raises a serious question as to whether the police officer making the arrest took appropriate measures to prevent the escape of a suspect being taken into custody. Further, whether the police used adequate means in the following search of an offender, having reason to know he might be a serious danger to others. The SDPD is in the process of examining the facts and the procedures used in the within case. Clearly, a review of protocols is in order.

In addition, there is the exposure the police face in a civil lawsuit by the elderly woman whose life was placed in jeopardy as a result of possible police negligence. There are immunities that governmental entities have and, therefore, a personal injury lawyer who might be retained in such a case would have to examine all of the possibilities as well as to determine if any theory of liability exists under the facts that would provide an exception and allow for liability for the damages she sustained. The initial claim against the police would have to be filed within six months of the incident.”

–Sam Spital

 

Trial ordered for man accused of killing mother, mutilating body, over financial support (Sam Spital)

Commentary by Sam Spital, San Diego Criminal Defense Lawyer:

“On November 19, 2012, a 31 year old son used a baseball bat, hammer or other blunt object to inflict 75 wounds in the beating death of his 60 year old mother who resided in the  North County community of Solana Beach as reported by the CBS Channel 8 online news. Now that the Preliminary Hearing in the San Diego Superior Court was concluded, the son will stand trial for the crime of murder for financial gain and murder with special circumstances (torture), which took place the day after his mother went to Los Angeles where he lived to buy a car for him but thereafter refused to continue providing financial support. It was also reported the defendant cut up parts of her body and placed them in a refrigerator.

The Defense Attorney argued her client was schizophrenic and insane, but the Judge refused to find a nexus between the defendant’s mental illness and the murder. Some will argue the mutilation and brutal killing by a son of his mother deserves no mercy, while others will point to the failure of our mental health system to provide safe guards to prevent this horrific murder.

The writer did not indicate whether previous warning signs or symptoms had ever led to a 72 hour hold in a psychiatric hospital or previous treatment for the defendant’s very serious mental disorder. However, Defense Counsel did identify an email the son wrote to his mother in which he said ’It’s no joke mom, I’m insane,’ and she then said to the Court “this is just crazy.’ It is clear that society has a far greater part to play in educating the public to take responsibility, intervene, and utilize the psychiatric treatment facilities in place &/or seek care through the County Mental Health Services. Perhaps not every criminal offense associated with mental illness can be prevented, but certainly there is help that is available and can be provided to those that suffer these disorders, and support to their families as well.”

 

Tennis referee arrested in bludgeoning death of elderly husband in Los Angeles (SAM SPITAL)

“Any time there is a suspicious death or homicide, the law enforcement will first look to the most recent person known to be in contact with the decedent and/or a spouse as the likely perpetrator. Nonetheless, one should not rush to judgment and/or infer an improper motive until all of the facts and circumstances are presented.”

Sam Spital, Criminal Defense Lawyer