Articles Posted in Elder Abuse

Last month I wrote about the problems plaguing Portland’s Unity Center for Behavioral Health.  According to The Oregonian, serious reports of neglect and abuse began to emerge almost as soon as the facility opened in 2017. In short order there was evidence of at least 16 incidents that ought to have been reported to police but were not. Now, only a few weeks later, the center is in the news again, with the paper reporting that its director has stepped down. “Legacy Health, which operates Unity, gave no explanation for her departure… although she will stay on as an advisory member of the Unity Board of Managers.”

As the paper outlines, “within the first month of opening, Unity staff reported instances of neglect and abuse within the facility. A federal and state investigation, started in spring 2018, eventually found that staff were poorly trained and underworked.” This, at what was routinely described as one of the state’s premier mental health facilities.

This incident raises serious questions about Oregon’s regulation and oversight of health care facilities. I have been covering the issue in this blog for several years and, more importantly, it has been the subject of some excellent investigative reporting by a number of Oregon media outlets. It is worth asking, however, why these issues never seem to go away. The mandatory reporting obligations of almost all staff members and even many of the people simply passing through a facility like Unity (medical or law enforcement professionals who might visit, for example) ought to offer strong protection for patients but, clearly, they do not (see links below for more information on mandatory reporting as well as the numbers to call to report abuse and neglect). This is where Oregon’s civil and criminal laws enter the picture. They are designed to prevent abuse in nursing homes, mental care centers and similar facilities.

This week The Oregonian carried the extraordinary story of a man who “was arraigned on 34 charges for allegedly recording colleagues at the Banana Republic Factory Store” on NE Cascades Parkway near the Portland airport. The 34-year-old allegedly placed hidden cameras in the women’s restroom at the store and recorded video of dozens of partially naked women, including children.

What is especially shocking is the revelation that the man had faced similar allegations at his previous job as a pharmacist with Kaiser Permanente. Last month the suspect “was arraigned on 71 similar charges for allegedly recording 51 men and women using the unisex bathrooms and changing rooms at the Kaiser Permanente facility” on Portland’s Northeast 138thAvenue. The man was fired after another employee “found a camera” in one of the bathrooms.

The article notes that some of the employees from the Banana Republic store are considering a civil suit. Two areas bear particularly close examination. First, there is the question of whether the Banana Republic store did everything it could to prevent this man, or anyone else, from invading employees’ privacy by installing secret cameras in the restroom. We need to know more about the nature of the cameras, where they were positioned, how they operated and how long they were in place. Most importantly, we need to consider what the store could have done to prevent this and other forms of employee misconduct. The U.S. Department of Labor’s website on workplace health and safety (see link below) lays out the standards all employers are expected to uphold. Difficult questions clearly need to be asked about how the store managed to get itself into this position in the first place.

An investigation by The Oregonian has revealed that the state agency charged with fighting the abuse of senior citizens and the disabled has been hiding thousands of cases of neglect. The revelation calls into question Oregon’s entire approach to elder abuse and neglect and is a yet another reminder of the important watchdog role that both the media and our courts must always play in society.

According to the newspaper “the Department of Human Services operates a website that is supposed to help consumers identify safe havens for their aging loved ones, including those suffering from Alzheimer’s and other debilitating illnesses. But an investigation… found that officials have excluded nearly 8000 substantiated claims of substandard care from the state’s website.” The Oregonian reports that its investigation was based on examinations of state records that are not available online, and therefore harder for the general public to access and assess. It notes that “more than 60 percent of the substantiated complaints against care centers in Oregon since 2005 can’t be found on the state’s website.”

The Oregonian’s report emphasizes that all of the complaints excluded by the state and uncovered by this investigation had been verified by state employees. The question, in other words, was not whether the abuse occurred but whether Oregon was willing to acknowledge it.

Following up on a story I first wrote about last fall, a former nursing home assistant accused of repeated sexual assaults on his elderly patients will be going to jail for 25 years, according to The Oregonian. The newspaper reports that the man, who has been held in the Washington County jail since his arrest last September, pled guilty to two of the 28 sex crime charges against him.

The newspaper reports that the plea agreement is “global” – meaning that the defendant “won’t be indicted on the Multnomah County allegations” that have been made against him. After his initial arrest which focused on the alleged abuse of seven patients at Providence St. Vincent Medical Center five more people came forward with accounts of being abused by the same man while he was working at the West Hills Health and Rehabilitation Center in Portland between 2014 and 2016.

While it is satisfying to see some measure of justice done in this case, it has to be noted that the criminal plea agreement does not answer all of the serious legal issues this case raises. Under ORS 678.725 nursing home employees have a duty to report inappropriate conduct on the part of colleagues.

At a moment when presidential politics have led to a national discussion about sexual assault last week’s news of a plea deal in an especially shocking case in Forest Grove was eye-catching. According to a report in The Oregonian the owner of a retirement home in that community received a two-day jail sentence and five years of probation after pleading “guilty in Washington County Court to 11 counts of third-degree sex abuse and one count of attempted third-degree sex abuse. More than two dozen other charges, including first-degree sex abuse, second-degree sex abuse, third-degree sex abuse and first-degree burglary were dropped as part of the plea deal.”

According to the newspaper the accused, a 73-year-old man, routinely groped women under his care and used his position as the home’s owner to press himself on his female employees. The victims ranged in age from their 30s to their 80s. The newspaper adds that the plea agreement was reached with the cooperation of the victims. “Nearly all the women said they wanted to avoid a trial, which would be a lengthy and humiliating process for them,” the newspaper notes, quoting a Washington County District Attorney’s Office spokesperson.

Two legal points stand out here, one shocking and the other offering some relief. The first is the negotiation of the charges down from first-degree sexual assault to third-degree. This is a significant difference. First-Degree sexual assault (ORS 163.427) is a Class B felony, meaning that each count could lead to up to ten years in prison and a $250,000 fine. Third-degree sexual abuse (ORS 163.415) is a Class A misdemeanor, which makes the maximum fine $6250 and the maximum jail time one year. Without wanting to second-guess a criminal prosecution decision that reportedly involved input from the victims, it has to be said that a mere two days in jail and, reportedly, no fine, seems like far less than prosecutors might have gone for, even under the reduced charges.

The announcement last week that the federal government will bar most nursing homes and other care facilities from forcing clients to sign care contracts requiring them to settle disputes in arbitration is an enormous victory for ordinary Americans – one that deserved more attention than it received in both the national and local media.

As the New York Times noted: “With its decision, the Centers for Medicare and Medicaid Services, an agency under (the Department of) Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country: their day in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term health care facilities in more than two decades.” Because virtually every nursing home and care facility in the country receives funds from either Medicare or Medicaid (and often from both) the rule is, effectively, universal. The rule change was essential to curb the spread of arbitration since a 2015 Supreme Court ruling (DIRECTV v Imburgia) which not only held that arbitration clauses are legal but also threw out state-level bans on the practice.

Obviously a federal law banning forced arbitration clauses can’t be passed in Washington’s present polarized political climate, but with last week’s decision the federal government effectively used the leverage that comes from being the largest single player in our healthcare system to put citizens ahead of corporate profits. The new federal rules effectively overturn the Court ruling in the area of nursing homes and related services.

The decision by Portland police to charge a 34-year-old nursing assistant with the rape of an 87-year-old nursing home patient is drawing new attention to sexual assault issues in Oregon nursing homes, hospitals and other facilities that care for the elderly.

According to a recent article in The Oregonian, a Portland man “is charged with first-degree rape and first-degree unlawful sexual penetration. He… is being held in the Washington County jail with bail set at $250,000.” The paper adds that the alleged rape was not the first time the suspect had been brought to the attention of police: they received a complaint about him back in June in reference to the assault of a 94-year-old woman at the same facility “but couldn’t substantiate it at the time.” Now, the paper reports, quoting the Washington County Sheriff’s office, the accused could also face charges in that case. Law enforcement authorities tell the paper they believe other victims may also come forward.

The arrested man “was licensed as a certified nursing assistant in February 2015 and has no history of discipline. He graduated from the Caregiver Training Institute in October last year, according to records,” The Oregonian reports.

Following up a story I wrote about earlier this month, the Associated Press reports that Washington State officials “are revoking the operating license of a Washington retirement facility after an 88-year-old woman froze to death in its courtyard earlier this month.”

In the weeks since the incident new details have emerged regarding this tragedy, none of which reflect well on the retirement home and care center and all of which reinforce the idea that what happened may qualify, legally speaking, as a wrongful death under Washington law. This terrible state of affairs is made worse by the emotional harm to the victim’s family the retirement home reportedly caused by issuing misleading information to them in the hours after the woman’s body was discovered (the family was initially told only that she died of a heart attack and the role of exposure in her death was not mentioned, according to the reports cited in my earlier post).

We now know, according to AP, that the victim’s body “was found in an enclosed, open-air courtyard after staff missed a required hourly bed check at midnight. The news agency cites officials from the Washington State Department of Social and Health Services saying that “staff mistakes and ineffective security measures… are to blame” for the death. With its license now revoked the center “can continue to care for its current 57 residents while an appeal takes place, but it can’t accept new patients,” AP reports. It adds: “officials said some safety hazards remained uncorrected three days after” the woman died.

The death of an 88-year-old Longview woman last week has raised Washington wrongful death questions and serves as a tragic reminder of the high level of responsibility we rightly expect when placing loved ones in a professional care facility.

According to the (Longview) Daily News, the elderly woman “froze to death in the outdoor courtyard of her Alzheimer’s care center.” The paper quotes the woman’s daughter saying that the doors to the facility’s courtyard were unlocked late at night, despite the obvious danger this posed to patients. Washington State’s Department of Health and Human Services is reported to be investigating the incident.

The paper reports that a spokesperson for the facility “could not comment on policies… regarding access to the enclosed courtyard at night or in cold weather.” It is notable, however, that the victim’s daughter says her mother “had fallen out in the courtyard twice before and also was known to move around a lot at night.” Equally troubling are claims that the family was initially led about the cause of the woman’s death – being told she died of a heart attack without her exposure to the cold weather being mentioned.

A California nursing home has been ordered to pay the largest fines allowed under state law following the death of a patient. For us here in Oregon this nursing home neglect and abuse case, though it comes from out-of-state, serves as a powerful reminder of the important role courts and regulators play in keeping watch over those charged with helping vulnerable seniors.

According to a report in the Orange County Register the case stems from the death of 93-year-old Donald Bodkin, who, the paper reports, “died in September from an undetected ruptured intestinal ulcer and infection.” Bodkin was not a long-time resident of the home but, rather, had checked in only a few weeks earlier for a temporary stay while recovering from hip surgery.

The paper reports that the state believes the home did not assess Bodkin’s condition properly, failed to tell his doctor once the symptoms became obvious and ignored warnings from both family members and an occupational therapist “that he was lethargic and in pain.” The nursing home has expressed regret for Bodkin’s death but said in a statement that it does not believe the actions of any of its staff “caused or contributed to this unfortunate event.”

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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