Special Reports

Nursing home prosecutions rare

The death of Ruby Ethel Goode in a Marshall County nursing home was one of more than 100 incidents over three years in which nursing homes were cited for violating state regulations. Few of those cases were prosecuted as crimes.

By Beth Musgrave and Valarie Honeycutt Spears

bmusgrave@herald-leader.com, vhoneycutt@herald-leader.com

When Brenda Goode Woitke learned in 2007 that her 93-year-old mother had died in the Calvert City Convalescent Center, she assumed that she had died of natural causes.

But the death of Ruby Ethel Goode — who played the accordion in her church and was a one-woman welcoming committee for her retirement home in Paducah — was far from natural or peaceful.

She was found on the floor with her head stuck between the side rail of the bed and the mattress, her neck unnaturally stretched.

Not only did officials at the Western Kentucky nursing facility fail to tell Woitke how her mother died, but they hid the facts. A nurse told others "not to talk about this to anyone because they would all get in trouble," according to a state citation issued to the nursing home after Goode died.

"There was no evidence the family, the physician, the administrator, or the director of nursing were immediately notified" of how Goode, known as Ethel, died, according to a Type A citation, which is issued by state regulators when there is an immediate threat of death or injury to a nursing home resident.

But when prosecutors reviewed Goode's case, they found no evidence to charge anyone with a crime — even though regulators said the nursing home failed to adequately assess whether Goode should be placed in a bed with side rails. The citation said that might have prevented her death.

A Herald-Leader examination of 107 Type A citations issued over a three-year period by the Kentucky Cabinet for Health and Family Services Office of Inspector General found a number of gaps in the system that mean few nursing home deaths are ever prosecuted as crimes. They include:

■ Police and coroners are rarely notified of nursing home deaths or serious injuries.

■ Although the state sends all of the most serious nursing home regulatory violations to the attorney general's office, that office can only prosecute with the permission of local prosecutors. And local prosecutors say they seldom hear about the cases.

■ The attorney general's office misplaced or never received at least five citations issued by the cabinet from December 2006 through 2009.

The responsibility for criminal prosecutions involving long-term care facilities is spread over several agencies, with no single authority as overseer. That results in confusion and finger pointing among officials who do not want their offices blamed for not protecting the elderly.

The inspector general says it's the attorney general's responsibility to review nursing home citations and determine whether a crime was committed. The attorney general says that the inspector general or Adult Protective Services office — both part of the cabinet — can notify local police or prosecutors when criminal activity is suspected.

The 107 citations involved 18 deaths and 30 hospitalizations. Seven of the type A citations resulted in criminal charges. Eight cases are still open.

Cases where no charges were filed included those at facilities where a man wandered away and froze to death; a patient who was not monitored lost 87 pounds in 19 days and was later hospitalized; and a patient who fell and broke her hip but did not receive medical attention for seven hours.

The examination also found that nursing home employees who are prosecuted seldom serve jail time.

Even though criminal charges are rare, nursing homes are assessed hefty fines as punishment. As of December 2009, nursing homes in Kentucky had paid more than $11.4 million into a state fund for regulatory violations.

No central authority

Much of the problem, experts said, can be attributed to the lack of a central authority to oversee investigations and prosecutions of incidents at nursing homes. (See graphic on Page A1.)

Advocates for the elderly, family members and attorneys say that nursing home deaths and injuries are not often scrutinized as potential crimes because the victims are elderly and often have serious illnesses.

If many of the same things happened to children, there would be a public outrage, said Kathleen Quinn, the director of the National Adult Protective Services Association, a trade group for adult protection workers.

Most nursing home incidents "are not investigated at all," said Dr. Barbara Weakley-Jones, Jefferson County coroner and a former state medical examiner who first noted Kentucky's lack of attention to nursing home deaths in a 1991 study. "Unfortunately some nursing homes try to cover up what happened," she said.

Prosecutors and law enforcement officials say determining criminal intent when someone dies in one of the state's 26,518 nursing facility beds is difficult.

But, Weakley-Jones said the deaths are not scrutinized in the same way they would be if they occurred at a private residence. If someone dies in their home, the coroner is immediately called.

After the 1991 study, Weakley-Jones and other members of the state's chief medical examiner's office urged physicians and coroners to pay more attention to sudden deaths at nursing homes.

But there have been no legislative proposals to change state regulations since then.

"We can't even begin to successfully work on this problem until we can identify all the cracks in our current system," said Jan Scherrer, president of Kentuckians for Nursing Home Reform, a nonprofit that has lobbied to protect nursing home residents.

Challenging cases

Experts say criminal prosecutions in nursing home cases are difficult. Even if it seems clear that a crime was committed, it may not be certain which staff member or members did it. And elderly residents often cannot tell what happened.

"One of the most challenging aspects of elder abuse cases is you don't have a victim who can testify 90 percent of the time," said Chris Russell, a Lexington police detective who specializes in such cases. "You have to rely solely on the evidence."

In response to the Herald-Leader's findings about the limited number of nursing home prosecutions, a nursing home industry trade group would say only that it supports increased training of nursing home staff and current laws regarding abuse and neglect.

"The long-term care profession's first priority is to provide the highest level of quality care possible to residents," said Steve McClain, a spokesman for the Kentucky Association of Health Care Facilities. "The long-term care profession is always concerned about any form of abuse and neglect."

A gaping hole

In Kentucky, the Cabinet for Health and Family Services sends all serious citations to Attorney General Jack Conway's Office, whose Office of Medicaid Fraud and Abuse Control decides whether to prosecute. (Conway has been in office since January 2008.)

But "we have very limited jurisdiction," said Mitchel T. Denham, executive director of the office. "Only the local prosecutors — the commonwealth's and county attorneys — have jurisdiction in abuse cases."

Denham defended the office's record of elder abuse prosecutions, saying that it has prosecuted many cases that don't involve nursing homes. "In fact, very few of the cases we investigate and ultimately prosecute originate as Type A citations," he said.

In addition, the office has also prosecuted nursing home citation cases that are not Type A's.

The office can prosecute cases of abuse and neglect with the permission of the local prosecutor. But it cannot overrule a local prosecutor's decision on whether to seek charges, Denham said.

That means what is a crime in one jurisdiction may not be in another.

Consider the case of Aden Owens, a construction worker who suffered a closed head injury at age 61 when a concrete slab collapsed. He entered Sunrise Manor Healthcare and Rehabilitation in Somerset in 1999. But his family became concerned about bruises he received — 114 injuries of unknown origin over seven years, the family alleged in a civil lawsuit. (The state issued a Type A citation in the case, but did not prosecute.)

Stephen O'Brien III, a Lexington attorney who represents Owens' son Bryan, said Owens' worker's compensation carrier required him to be at Sunrise Manor. The family spent several hours a day at the nursing home and in 2006 placed a hidden camera in his room.

The videotape showed a nursing assistant pulling Owens' hair, twisting his fingers and striking his hands, according to the cabinet's citation.

Another nurse's aide is seen striking him, jerking him by his neck and placing a knee on his chest while changing his diaper.

After Owens fell out of bed, an aide left him on the floor while changing his bed, the videotape shows.

Bryan Owens said he couldn't understand why his father's case wasn't prosecuted, while in another case, three nurse's aides caught on a hidden camera abusing an elderly woman at Madison Manor nursing home near Richmond in 2008 were prosecuted and convicted.

Taped abuse

In the Madison Manor case, one aide was found guilty of abuse after she roughly handled 84-year-old Armeda Thomas. Another was convicted after she ate Thomas' food and said in records that Thomas ate it.

Owens' family went to Pulaski Commonwealth's Attorney Eddy Montgomery with their tapes. But Montgomery said he couldn't get a conviction based on the videos.

"What I saw on the videotape didn't rise to the level of a crime," he said.

One key difference between the cases — Thomas' case received widespread media coverage. Owens' didn't.

The Owens family's civil lawsuit recently was settled for an undisclosed amount. Sunrise Manor also paid a fine to the state for the Type A citation, according to court records.

The state licensing board took away the license of David Pendley, the Sunrise administrator, for five years for failing to contact authorities when aides abused Owens. Pendley was fined $10,000 and will have to complete a training course to get his license back.

Pendley, through his attorney, declined to comment. However, in state documents, he said Owens bruised easily and that he had dealt with the aides who handled Owens roughly.

After Sunrise received a second Type A citation regarding Aden Owens' care, the insurance company paid for the family to care for him at home. He died in January 2009.

Missing citations

Although the procedure of the cabinet's office of inspector general is to send all Type A citations to the attorney general's office, the Herald-Leader found that the attorney general's office never received or misplaced at least five citations from December 2006 through 2009.

The inspector general's office said it has records of sending three of those to the attorney general's office, but officials in the attorney general's office said they had no record of receiving them.

"The remaining two may also have been sent, though the documentation to verify that could not be located," said Vikki Franklin, a spokeswoman for the cabinet.

In a statement, Conway said he was troubled to learn that his office and local authorities did not always receive the information.

In one of the misplaced cases, a female resident suffered a fractured hip at James S. Taylor Memorial Home in Louisville in 2007 because staff members failed to properly maintain and operate a mechanical lift that collapsed and fell on her.

A spokesman for the Jefferson County commonwealth's attorney said the office was never notified of the case.

Another citation that was not sent was that of the Riverview Health Care Center in Prestonsburg. It was cited in 2007 after a male resident targeted nine female residents for sexual abuse. Although staff members found bruising on one woman's inner thigh, witnessed the male resident putting his hand in the pants of another resident and caught him trying to fondle another, the facility administrator chalked it up to "rumors," according to the cabinet's citation.

Missy Allen, administrator of Riverview, said officials there initiated the call to the inspector general's office and the deficiencies cited by the state were quickly corrected.

Floyd Commonwealth's Attorney Brent Turner said he had no record of being notified of the case.

There is no requirement that the inspector general's office notify local law enforcement in cases of abuse and neglect, but it often does in cases where it is clear that a crime has been committed, particularly in sexual assault cases.

If the inspector general decides a case should be referred for criminal investigation, the nursing home's location dictates which law enforcement agency is notified, according to Franklin.

If the nursing home is in a city, the inspector general notifies local police. If it's in a rural area or is state owned, Kentucky State Police are notified, she said. The inspector general typically does not notify prosecutors that a nursing home has placed residents in jeopardy. It is usually left up to police to contact prosecutors.

"The OIG (office of inspector general) also advises providers to contact law enforcement in instances where criminal activity is suspected," said Mary Begley, who has been inspector general since May. The role of the inspector general's office is to determine if there have been any violations of regulations. The office forwards the information to the attorney general's office to determine if there is criminal activity.

"It is also important to note that the majority of Type A citations do not involve criminal activity, but rather issues such as elopement (wandering away) of residents and falls of residents," Begley said.

Many prosecutors said they wanted to be notified when there was a Type A citation, but were not.

"I have been commonwealth's attorney going on 23 years and I don't think I've ever received a case from the OIG," said Allen Trimble, commonwealth's attorney for Whitley and McCreary counties and president of the Commonwealth's Attorney's Association.

Trimble says he typically finds out when a nursing home is cited from media reports.

Franklin Commonwealth's Attorney Larry Cleveland said he, too, does not recall being referred a case from police that started with an inspector general's investigation. But he said he would like to be notified when a nursing home is cited. "I would love to do a nursing home prosecution," Cleveland said.

Conway, in a written statement, said he was disappointed that there appeared to be so many delays in the reporting of citations to the attorney general, as well as to local police and prosecutors.

"It is troubling to learn that in several instances our office and local authorities, who are in the best position to act on these allegations immediately, did not receive this information," Conway said. "I am also concerned that our investigators and police may not be receiving these citations in a timely fashion."

Delayed investigations

In some of the 107 serious cases, it took weeks for the attorney general's office to receive the information from the cabinet.

Denham, of the attorney general's office, said that it's impossible to say how many times that delay, and, in turn, a delay in calling police, affects a prosecution.

Page Ulrey, a prosecutor in King County, Washington, heads one of the leading elder abuse prosecution units in the country.

"We rely on physical evidence," Ulrey said. Delays in reporting "can be the death knell of a criminal case."

Although state regulators are often called immediately, they are not the same as the police, Ulrey said.

State regulators' jobs are different, Ulrey said. "In our jurisdiction, they are there to determine if the facility failed in some way," she said. "They are not looking at these cases in terms of a criminal prosecution."

'Nothing changed'

Nearly three years after her mother's death, Woitke said she still believes that if the police or the coroner had been called, there would have been criminal charges.

Marshall County Coroner Mitchell Lee said that he learned of the case from the media.

Goode's own doctor said that if he had been told about the circumstances of his patient's death he would have contacted the coroner himself, according to state documents.

Woitke said the stress of dealing with her mother's death caused her to have a heart attack.

After a local newspaper reported how her mother had died, she walked into the office of Paducah lawyer Richard Walter and said: "I just want to know what really happened."

The civil lawsuit that was filed as a result has been settled for an undisclosed amount. Through the civil process, Woitke learned that the facility had not thoroughly assessed whether her mother — who had memory problems, was at a high risk of falls and frequently slid to the bottom of her bed — should be left alone with her bed rails up.

"It's not about the money," Woitke said. "The truth of the way my mother died was withheld from me deliberately. I don't want this to happen to another family."

Lynn B. Jones, the administrator at Calvert City Convalescent Center, declined to comment on the Goode case.

Bryan Owens and his family are frustrated that they were not able to seek justice for Aden Owens.

Bryan Owens said he is troubled because the nursing home aides, though they were fired, still haven't been held accountable in court.

"We thought once this came to light, they would make new rules and state laws would change and there would be prosecutions," said Bryan Owens, "but nothing changed."

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