In certain states — Texas and Florida primarily — personal injury lawyers have obtained numerous, substantial recoveries from long term care facilities for substandard treatment of residents. Now criminal prosecutors have joined the issue. The criminalization of abuse and neglect of nursing home residents is becoming increasingly more frequent. Granted, abuse and neglect of the elderly is a serious problem and one that should engage — and enrage — all citizens. On the other hand, caring for residents in a long term care facility is extremely difficult since the residents are usually elderly, often fragile, and frequently immobile.

Maryland's criminal statute for abuse or neglect of vulnerable persons, found at Article 27, § 35D, provides in relevant part as follows:

A caregiver ... or other person who has permanent or temporary care or responsibility for the supervision of a vulnerable adult ...who causes abuse or neglect of a vulnerable adult is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000 or imprisonment for not more than 5 years, or both.

"Abuse" is defined in the statute as follows:

"Abuse" means the sustaining of any physical pain or injury by a vulnerable adult as a result of cruel or inhumane treatment or as a result of a malicious act by a caregiver ...or other person who has permanent or temporary care or custody or responsibility for the supervision of a vulnerable adult ....

"Abuse" includes sexual abuse of a vulnerable adult. It does not include the performance of an accepted medical or behavioral procedure ordered by a health care provider acting within the scope of the health care provider's practice.

The statute defines "neglect" as follows:

"Neglect" means the intentional failure to provide necessary assistance and resources for the physical needs of the vulnerable adult, including food, clothing, toileting, essential medical treatment, shelter, or supervision.

Under the Maryland statute, "neglect" does not include the provision of non-medical remedial care and treatment for the healing of injury or disease, with the consent of the vulnerable adult, recognized by state law instead of medical treatment.

The following indictments and prosecutions demonstrate the range of individuals whom prosecutors are seeking to hold criminally responsible in abuse and neglect cases:

Sun Healthcare Group, Inc. (California) — This civil and criminal case was settled in October 2001. The California Attorney General had pursued civil and criminal charges after a heat wave killed two residents at a facility with no air conditioning or proper ventilation. The individual facility, part of an 80-facility corporation, pled nolo contendere or "no contest" to the criminal charges. State v. Sun Healthcare Group, Inc., No. 418519 (Cal. Super. Ct. Oct. 3, 2001) (settlement agreement).

Guardian Post Acute Services, Inc. (California) — In this case, the grand jury indicted the corporate owner of several nursing home facilities on six felony neglect counts. This investigation was triggered by a complaint after a resident was transferred with maggots and dead tissue around the feeding tube. Counts included allegations relating to the sexual assault of a resident, several patients being left unattended for days or forced to lie in their own feces and urine, and pressure sores which became infected. The California Department of Health had cited over 60 compliance violations in the last three years, including citations for pressure sores. The spokesperson for the indicted owner claims that the facility often saw sicker/frailer patients than other facilities. The spokesperson for the District Attorney's office said that the investigation showed "systemic neglect."

In January 2000, a Santa Clara County criminal grand jury indicted Guardian Post Acute Services again, this time adding two additional felony abuse counts. One of the new counts involved a patient who was not fed or given water for 11 days and died shortly thereafter. The other count involved a patient who had the steel rods placed in his hip during hip replacement surgery "sheared off." This patient also died shortly after the incident cited.

In April 2000, the company pled guilty to six felony counts of criminal neglect. As part of the settlement with Guardian, which operates 16 homes with 1,600 patients in Northern California, the chain would close two of its facilities in San Jose and Los Gatos, California. State v. Guardian Post Acute Services, Inc., No. ____ (Cal. Super. Ct. May 24, 1999) (no contest plea).

Gainesville Health Care Center, Inc. (Florida) — The Florida State's Attorney's Office brought criminal charges against three long term care corporations, three former officials, and the facility's former administrator and former director of nursing, alleging neglect and mistreatment of residents at University Nursing Center in Gainesville, Florida. The incidents giving rise to the criminal charges were four deaths that occurred at the facility. According to the State's Attorney's news release, "the facility submitted large bills to Medicaid in order to maximize profits while doing nothing to improve patient care." Significantly, the facility's management company, Capitol Care Management Co., was charged along with the current owner of the facility and its former operator, Retirement Care Associates. The State's Attorney's Office included a racketeering (RICO) count so that if the government's case is successful, the State can seize the corporations' assets because the defendants "used this business and assets as part of a criminal activity." State v. Gainesville Health Care Center, Inc., No. 99-149 (Fla. 8th Cir. Ct. 1999).

Village of Sandestin (Florida) — The corporation pled guilty in January 1996 to four felony counts of abuse by neglect under the Florida statute. The investigation began with a referral to the Florida Medicaid Fraud Control Unit by Florida Protective Services after a resident was brought to a hospital in very poor condition, e.g., decubitus ulcers, pneumonia, and poor hygiene. The investigation found other patients in similar conditions and attributed the cause to shortage of staff and incompetent staff. State v. Village of Sandestin, No. 94-0440 (Fla. 1st Cir. Ct. 1996).

Raquel Bermisa (Hawaii) — Bermisa, the operator of an adult residential care home, entered a plea of guilty in February 2000 to reckless manslaughter after a patient died as a consequence of sepsis due to decubitus ulcers. The home's operator, by failing to implement the doctor's treatment plan and to seek proper medical attention after she became aware of the elderly resident's condition, caused her death. Bermisa later withdrew her guilty plea and, in January 2001, was sentenced to 20 years in prison after a jury convicted her of manslaughter. In December 2002, the Governor of Hawaii commuted her sentence to four years. People v. Bermisa, No. 1PC00-1-000385 (Haw. Ct. App. Feb. 28, 2000) (information).

Caretenders, Inc. (Kentucky) — An indictment was brought against Caretenders, Inc. (Caretenders), a corporate entity that provided home health care services to adult patients, along with the administrator, a registered nurse, and a licensed practical nurse employed by Caretenders. All defendants were charged with violating KRS 209.990(2), viz., knowingly and willfully neglecting an adult patient of the company while acting as a licensed caretaker of the patient. At trial, the corporate entity was convicted and the individual defendants were acquitted. Caretenders, Inc. v. Commonwealth, 821 S.W. 2d 83 (Ky. 1991).

Caretenders filed an appeal alleging, inter alia, that the verdicts were "repugnant and inconsistent" because the company was convicted notwithstanding the acquittal of its employees. The court held, however, that Caretenders' agents included not only those agents who were indicted and acquitted, but also the live-in aides (who were not indicted) who provided the daily routine care of the adult patient. Caretenders, 821 S.W. 2d at 86. The Supreme Court of Kentucky held that the trial court properly instructed the jury that Caretenders was guilty of violating KRS 209.990(2) "if the jury found beyond a reasonable doubt that Caretenders through its agents, servants or employees, knowingly and willfully neglected" the adult patient. Id. at 87.

Horizon/CMS Healthcare Corp. (Michigan) — The Michigan Attorney General's Office charged the corporation d/b/a Greenery at Howell and five of its employees, including the administrator and the director of nursing, in a 13-count indictment, alleging, inter alia, vulnerable adult abuse, alteration or destruction of medical records and fabrication of misleading or inaccurate patient medical records. The vulnerable adult victims whose care gave rise to the charges included three patients who had died while residing at Greenery at Howell and two patients who had pressure sores, one of whom was bed bound and ventilator dependent. The other patient with pressure sores was a quadriplegic tube feeder on a ventilator.

According to the alteration-of-records allegation, patient records were intentionally destroyed for the purpose of concealing the health care provider's responsibility for the resident's injury, e.g., the former DON allegedly had directed an employee to destroy her progress notes. The "fabrication of medical records" allegation included the falsifying of a resident's progress notes to redact facts concerning an incident in order to protect the facility from liability. People v. Horizon/CMS Healthcare Corp., No. 98-630-FY (Mich. 54-B Jud. Dist. Ct. Feb. 19, 1998).

Mali, Inc. (Michigan) — The Michigan Attorney General's Office charged the corporate owner of a former suburban Detroit nursing home and three of its key administrators with violating the Medicaid False Claims Act and the Altered Medical Records statute. According to the charges, the defendants intentionally made misrepresentations when submitting a plan of correction as part of the recertification process in an effort to keep the facility's Medicaid and Medicare skilled nursing certifications. The facility, Venoy Nursing Center in Wayne, Michigan, was closed by the state in May 1998.

The alleged false statements concerned staff levels, food acceptance records, activities of daily living sheets, and a therapy logbook. The Altered Medical Records statute allegedly was violated when three of the defendants instructed the nursing staff to complete the food acceptance records and daily activity sheets with inaccurate information. People v. Mali, Inc., Nos. 99-0664 - 99-0667 (Mich. 36th Jud. Dist. Ct. Mar. 11, 1999).

Boone Retirement Center, Inc. (Missouri) — In this case, both the home and its administrator were convicted (convictions affirmed on appeal) of knowingly neglecting a nursing home resident by failing to provide "services, items or supplies." The two patients at issue had Stage II decubitus ulcers. The evidence at trial showed that (1) the administrator had actual knowledge of the decubitus ulcers; (2) staff members complained about inadequate staff to turn patients and provide snacks and that the administrator said to keep the staffing levels at the state minimum; (3) the administrator had refused to order a special pressure-relieving bed for a patient because it was too expensive even though the treating doctor had ordered it; and (5) the administrator attended meetings or received reports about the two patients' problems and needs and ignored them.

The nursing home was found guilty under a theory of corporate criminal liability, i.e., if "the conduct constituting the offense is engaged in, authorized ...or knowingly tolerated by the board of directors or by a high managerial agent [here, the administrator] acting within the scope of his employment and on behalf of the corporation," then the corporation is guilty as well. State v. Boone Retirement Center, Inc., 26 S.W.3d 265 (Mo. Ct. App. 2000).

Barbara Peoples (Missouri) — Peoples, the DON at Latham Care Center, was convicted of six counts of knowingly neglecting a nursing facility resident who had vomited 17 times during the 42 hours preceding his death. It was undisputed that Peoples had been apprised of the resident's severe vomiting at least six times and had failed to notify a physician. According to the State's expert and the medical examiner, both of whom testified at trial, Peoples was negligent in failing to notify a physician.

The court of appeals reversed Peoples' convictions, finding that the State had proved a case of common law negligence, i.e., malpractice. The court found that the criminal neglect statute requires more than ordinary negligence. In order to criminalize such activity, the law "required that the defendant act knowingly and, more importantly ...that the defendant's neglect presents a substantial probability of death or serious bodily harm." Because the State did not present an expert who could testify that Peoples' failure to notify a doctor of the resident's condition presented a substantial probability of death or serious bodily harm, the State failed to prove each and every element of its case. The evidence was insufficient to support the convictions. State v. Peoples, 962 S.W.2d 921 (Mo. Ct. App. 1998).

Nevada Cares, Inc. (Nevada) — In March 1999, the Nevada Attorney General's office charged the former owner and the former administrator of a nursing home in Carson City with two counts of elder neglect. The charges stemmed from the treatment of a 78-year-old female patient, who allegedly failed to receive appropriate medical care for her developing decubitus ulcers and who developed a fungus-like mold on her mouth and dentures as a result of the alleged neglect. The defendants were ordered to face trial on September 2, 1999. State v. Nevada Cares, Inc. (Nev. Carson City Just. Ct. Mar. 31, 1999).

Patsy "Pat" Thomason (Oklahoma) — Defendant Thomason was the Regional Director of the Tutera Group, the managing entity of Western Hills Health Care Center. She was charged with caretaker neglect with respect to a one-month period after a 91-year-old patient was discovered in his room with a broken leg. The resident was transported to a hospital where a full cast was placed on his leg. After he was returned to the nursing home, urine got into the cast and created a bad odor. Several employees reported the foul odor to the charge nurses, but no action was taken. One month later, the resident was having trouble breathing and was taken to the hospital. At the hospital, the cast was removed, exposing what had become an open fracture with bone protruding through the skin. He was diagnosed with various infections and died one month later, though the cause of death is not clear. The trial court dismissed the counts against her, but the court of appeals reversed the trial court and reinstated the charges. State v. Thomason, 33 P.3d 930 (Okla. Crim. App. 2001).

Homes for Independent Living, Inc. (Wisconsin) — In this case, the corporation was charged in January 2002 under a theory of corporate criminal liability with felony counts of abuse. The charges were based on the actions of the corporation's employee who had pled guilty to a charge of felony abuse in the death of a resident who had drowned in whirlpool bath where he was left unattended. In addition, the employee said that there was inadequate staff to care for all of the patients on her shift. State v. Homes for Independent Living, Inc., No. 02-CF-64 (Wis. Cir. Ct. Aug. 20, 2002) (charges dismissed).

Rocky Lemon (Texas) — The owner of a nursing home pled guilty to a misdemeanor of "Deadly Conduct" after being indicted on a felony charge of injury to an elderly person. The resident had been found suffering from severe bedsores and general neglect. The defendant/owner was fined and given community supervision for two years. He also was prohibited from obtaining a nursing home license for two years. Texas v. Rocky Lemon (Tex. 109th Dist. Ct. Oct. 29, 2001).