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: The online license history of the former RN reveals she also allowed her license to expire (see:$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

Alleged Abusive Caregiver has Troubled Past (Sam Spital)

“NBC News and the Union Tribune reported that a Registered Nurse performing as a caregiver was arrested on multiple criminal charges for physical abuse of a 23 year old patient who is severely autistic. According to a Complaint filed by the District Attorney, the defendant is charged with several counts of willful cruelty to a dependent adult. The RN and his   co-defendant in this case are each being held in County Jail on $1 million bail.Even though the parents trusted the nurse for about two years, they became concerned about two months ago for their fear of serious mistreatment and exploitation of their son when they observed signs of abuse and then installed a video surveillance camera in their home. The tape recorded hundreds of beatings, slaps, kicks, pushing, eye-poking and punching the victim’s head during the parent’s absence over a recent three week period of time.

The parents were interviewed and stated they initially went online at the Board of Registered Nursing web site to find out if there had been any disciplinary action against the RN, and found none before employing him. A current review of the BRN web site reflects the suspect has been licensed since 1983 as an RN and has no prior Board case:$LCEV2.QueryView?P_LICENSE_NUMBER=361686&P_LTE_ID=828.  However, this is understandable in that when a nurse seeks to renew a license during the last couple of years, the form only inquires of criminal convictions during the preceding two (2) years.

The UT detailed a criminal history of the nurse dating back to 1969 and which the mother acknowledged she was told by the caretaker he was innocent (it is unclear how much he told the parents, although it appears he was acquitted of second-degree murder of a 13 month old infant who died from a skull fracture while the Defendant was baby-sitting; and there was a 11-1 in favor of conviction, but the jury deadlocked and a mistrial was declared by the Court). The mother acknowledged she was also told about another case in 2002 that stemmed from several felony counts of animal abuse and neglect in which the defendant pled guilty to one criminal misdemeanor charge and was placed on probation, which she also noted the Defendant told her he took “good care” of his dogs.

Those with severe autism will act out and outbursts and physical aggression are constant and extremely common. These individuals struggle with rigidity and transitions. One could argue caregivers and parents should both be mandated for respite care, continuing education, self-care and psychological testing of the prospective caregiver to help a parent to evaluate how he/she will deal with aggressive behavior. While the focus is often on the individual with autism, there is a definite need for more education for both the parents and caregivers since they are continually under extreme and cumulative stress and often do not use acceptable and appropriate support systems or remedial protocols. Also, requiring limited work hours and frequent breaks can help diffuse the anxiety and strain in dealing with a severely autistic individual. It appears all of the current focus is on early intervention for children and how to parent a child with autism (behavioral interventions, speech intervention, emotional-regulation intervention). There are required courses on how to use behavioral strategies for the child that parents need to take when they are a Regional Center client. However, there are no required classes for both caregivers and parents on self-care, taking frequent and much needed breaks, self-talk, managing depression, managing grief, dealing with constant outbursts and repeated physical aggression, and loss of expectations of a typical child. There is only brief mention about seeking out support groups and offering resources, but there are far too few continuing education courses and workshops that specifically deal with caretakers and parents regarding much needed practices and protocols.

I have handled countless cases and represented both Registered and Vocational Nurses in California who also have had criminal records and then face a denial of licensure, or suspension and revocation of an existing license. In a limited few of these cases there are defenses that can be asserted since the conviction is conclusive. In the vast majority of criminal and administrative law cases, however, the focus I often select is on sentencing and this is where expert testimony and other compelling evidence is propounded to establish mitigation. As both a San Diego criminal defense lawyer and a California Administrative Law attorney, I underscore the extent to which the purposes of a court and Board in exacting a sanction have been and are fulfilled, as follows: (1) to impose a reasonable and appropriate punishment to deter the offender and future individuals from unlawful conduct; (2) retribution, or to penalize the offender so as not to repeat the misconduct; (3) to protect the health and safety of the public from illegal behavior; and (4) rehabilitation, or to get the offender to have remorse and recognition of wrongdoing so that he will not engage in any criminality again.”

Sam Spital, Criminal Defense Lawyer

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