Two Shocking Cases of Elder Abuse in Northern California

Two serious cases of elder abuse made headlines in the San Francisco Bay Area this past week. One involved the deliberate smothering of a patient by a caregiver in a South San Francisco nursing home, and the other involved financial elder abuse by a caregiver who stole money from patients. It is unfortunate that the very people who are charged with the care of elders are the same people who are abusing them. Elders are extremely vulnerable, and these incidences of abuse are not isolated occurrences. According to the Los Angeles Examiner, one out of 20 elders in California will be a victim of neglect or physical, financial, or psychological abuse this year.

Nursing Home Assistant Intentionally Smothers Patient

On March 22, Maximo Hong Fajardo Jr., a 37 year old certified nursing home assistant, intentionally smothered 87 year-old Barbara McIver with a pillow, in full view of other patients and staff. Ms. McIver was a patient at the Convalescent Center Mission Street in Daly City, south of San Francisco. Fajardo fled the care facility, carjacking a car and crashing it in his attempt to flee. He is currently held on $10 million bail.

Nursing Home Administrator Accused of Financial Elder Abuse

Across the San Francisco Bay in Berkeley, California, Concepcion "Connie" Pinco Giron, former assistant administrator of the Elmwood Nursing and Rehabilitation Center, is accused of telling her supervisors that a patient at the home, Carnell Williams, was being transferred to another care facility. In fact, Giron moved Williams into her own home, and proceeded to cash Williams’ pension and social security checks. Giron is also accused of opening bank accounts at Citibank for five other patients and transferring money from those accounts into her own account. She wrote checks to herself from the patients’ accounts and used their ATM cards.

Giron has been charged with kidnapping to commit another crime, false imprisonment, elder abuse, and six counts of theft from elder or dependent adults by a caretaker. She is currently being held in lieu of $365,000 bail.

Thanks for reading my blog. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. If you or a loved one has been the victim of abuse, negligence, or neglect by a nursing home, contact an attorney to find out your legal rights and options. You can also contact me to discuss your matter confidentially.

New Report Reveals Defects in California’s Ombudsman Program

A report prepared for the California Senate Rules Committee and released November 3, 2009 reveals disturbing problems in California’s Ombudsmen Program, which is tasked with being Californians’ eyes and ears in nursing homes throughout the state. The report, titled California’s Elder Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and Duties, was requested by the Senate Committee on Aging and Long-Term Care and can be read in its entirety here.

According to the report, many cases of nursing home abuse and neglect are likely going unnoticed in California. About a year ago, the ombudsman program budget was cut by nearly half. Additionally, the report finds that ombudsmen have their hands tied in many cases and find themselves unable to report abuse and neglect that they know is occurring.

Conflicting Duties

California’s ombudsmen were originally intended to be a watchdog presence in nursing homes, advocating for elderly people and making regular unannounced visits to nursing homes throughout the state. But their role has changed. They have become responsible for handling investigations of abuse and neglect inside nursing homes, and this aspect of their work conflicts with their original role, which involved collaborating with nursing homes and acting as a liaison between residents and management. Additionally, investigations are complex and time-consuming, so most ombudsmen no longer have time to make regular nursing home visits, establish any sort of regular presence, or provide advocacy services.

Budget Cuts

Time has been made even more precious by last year’s major state budget cut, which left the ombudsman program with about half of the budget it previously had. As a result, ombudsmen now do not have sufficient time to handle investigations for all the allegations of abuse they learn about. The report found that, since the budget cut, ombudsmen are forwarding 44 percent fewer complaints to outside agencies for enforcement.

The report also revealed that in many areas, as a result of the lack of funding, volunteers are being relied upon to handle investigations of abuse and neglect. Serious questions remain as to whether relying on volunteers to handle a complex law enforcement related task is ethical or beneficial.

Confidentiality Laws

Beyond the conflicting duties and lack of funding, the report finds that ombudsmen have their hands tied when they try to pursue alleged abuse in many cases. Ombudsmen must forward legitimate complaints to outside agencies that can prosecute crimes and enforce laws that protect the elderly. But federal law prohibits them from forwarding a complaint without a release of identity from the person who made the complaint. Of course, many individuals making complaints refuse to release their names because they fear retaliation. The report found that three quarters of people who made complaints refused to release their identities.

Additionally, California is currently reviewing its interpretation of federal law as requiring that witnesses and alleged abuse perpetrators consent to allowing the ombudsmen forward a complaint to an outside agency.

Experienced elder care lawyers

If you believe that you or a loved one has been a victim of elder abuse or neglect, contact The Law Offices of James R. Gillen for a confidential consultation.

Use of Chemical Restraints in Nursing Homes

Recently, three residents died at a skilled nursing facility operated by the Kern Valley Healthcare District. The skilled nursing center has 74 beds and provides 24-hour nursing care. According to a criminal complaint filed by the California Attorney General’s Office against three high-level managers of the facility, the three residents who died, and about 20 other residents, were administered psychotropic drugs for staff convenience by the center’s one-time medical director, the former nursing director, and the former chief pharmacist.

All three individuals have been charged with elder abuse. It is alleged that the nursing director tried to drug almost all of the facility's patients, with the exception of the most compliant residents, and the medical director is alleged to have permitted the nursing director’s orders for medication. The chief pharmacist claimed that she complied with the medication requests because the nursing director had experience working at psychiatric hospitals.

In this case, the individuals used psychotropic drugs, such as Zyprexa, Depakote, and Risperdal, as a means of chemically restraining these nursing home victims. Chemical restraints are defined as the use of psychoactive drugs to treat behavioral symptoms, instead of offering proper care. The residents who were improperly given these drugs suffered multiple side effects, including severe weight loss, slurred speech, loss of cognition, tremors, and psychosis.

One of the residents who had died due to the improper administration of these drugs, was Fannie May Brinkley, who was in her nineties, most likely would have lived for another year or two. She died as a result of the anti-seizure drug Depakote she was forced to take, and neglect of the nursing staff.

The three individuals who administered these drugs are all facing criminal charges, including administering shots by force and without consent, and charges of assault with a deadly weapon. There are also strict federal laws that prohibit this type of behavior by nursing staff.

Federal Law Prohibiting Use of Chemical Restraints

The Nursing Home Patients Bill of Rights (NHPBR) is a federal law that delineates the kind of care nursing home patients, residing in nursing homes that receive Medicare or Medicaid, must abide by. The NHPBR states under 42 Code of Federal Regulations 483.13, subsection (a) that nursing center residents have “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.”

The NHPBR has provisions that mandate facility caregivers to provide an environment that promotes the resident’s quality of life. It also has provisions requiring facilities to have sufficient nursing staff to maintain the highest possible physical and psychosocial well-being of each resident. Additionally, there is a provision regulating pharmacists. Under 42 CFR 483.60, pharmacists must record all drugs that are ordered and a licensed pharmacist must review the resident’s drug regimen at least once a month. If there are any discrepancies, the pharmacist has to report such discrepancies to the attending physician or director of nursing.

The improper use of both chemical and physical restraints against nursing home residents is both unethical and criminally prohibited. They should only be used when a doctor has deemed them as necessary for providing the resident proper care. If someone you know and care about has been improperly restrained and injury has resulted, contact an elder abuse lawyer immediately.