The Law

Elder Abuse Results in $2.9 Billion Loss Per 2011 Report

A June 2011 by the MetLife Mature Market Institute (MMMI) reports that older Americans lost $2.9 billion as the result of elder abuse. This is a whopping 12% increase from the previous year. Financial Elder Abuse.jpg

A common practice among banks is to allow older customers to use signature stamps (especially for those clients who find it more difficult to sign their names on forms, etc.)

The MMMI report is a sobering reminder that elder abuse comes in many forms–not only physical and emotional, but also financial. However, if a signature stamp fall in the wrong hands, it can do much more than wreak more than a little havoc to one’s finances. Case in point: Ms. Isenberg.

Ms. Isenberg’s daughter, Liz Sanders, hired a caregiver for her bedridden mother. This caregiver, Ms. Wofford, slowly drained over 3/4 of $1 million from Ms. Isenberg’s accounts. Wofford wrote herself checks and withdrew from Wofford’s life insurance. In addition to racking up tens of thousands of dollars in debt at various department stores, Ms. Wofford treated herself to a Mercedes courtesy of Ms. Isenberg–unbeknownst to Ms. Isenberg and her daughter.

When Liz Sanders found out about how Wofford had victimized Ms. Isenberg, she also learned that restitution was not a reality. However, she was determined to make it less easy for such financial abuse to occur to other elderly Californians. She went to her state senator, Fran Pavley (D-Agoura Hills), and put together California Senate Bill 586, which would have doubled the penalties for elder and dependent adult abuse in California. It added new provisions for the issuing of signature stamps by state-organized banks and credit unions.

The legislation passed easily, backed by the AARP along with other advocates for seniors and the CA Senior Legislature. Yet, Gov. Jerry Brown vetoed the bill last week. His message with the veto was that he did not believe that the bill would prevent fraudulent use of stamps. Brown pointed to another bill that increases penalties for elder abuse embezzlement, forgery, and identity theft as sufficient.

Liz Sanders says she pursued the legislation to find justice for her mother, and also to protect other seniors who might be at risk. The process helped spread the word about this problem throughout California and the United States.

Please heed Sanders’ plight and stay mindful of common signs of financial elder abuse:

  • Unusual financial activity, abnormal purchases, unpaid bills
  • An individual seems neglected physically or his/her home seems neglected
  • An elderly person asks to add a new name to bank accounts or seeks other co-signing arrangements
  • An individaul is granted power of attorney, although the senior may not have known that person for a long period of time
  • Increasing isolation of a senior along with decreasing contact with family members/friends
  • The emergence of a sudden “new best friend,” especially of someone who is much younger than the senior.

Better to err on the side of caution and report any suspicions to local authorities, which often have a division that focuses on assisting seniors.

State of WA: Let's Crack Down On Elder Care Referrals

I applaud an editorial in today’s Seattle Times that urges Gov. Christine Gregoire to sign legislation that will clamp down on so-called “free” referrals for elder care referrals.Gregoire.jpg 

According to a Seattle Times report, providers that assist families by guiding through an array of options for their loved ones can include assisted living or other senior housing that best fits their needs for free. What is often not disclosed is that in return, these providers are paid as much as $3,500 per person by the facilities for providing them with a client.

Legislation sent to Governor Chris Gregoire demands referral companies to follow strict standards, including written disclosures of their commission rates.  

Washington is the first state to pass a comprehensive law to rein in elder-care referral companies, according to research by AARP, a senior organization that supported the bill.

I’m hopeful that Chris Gregoire will perservere with this incredibly important issue and sign the bill. We must impose a minimum set of rules on those who target this vulnerable group of citizens to for a profit. 

Check out this Seattle Times report for more details about the bill.

Tools To Help Find The Best Care for Aging Relatives

On Jan. 1st of this year, nursing homes in California began to post federal ratings on their quality of care.  This is in response to a state law that passed in 2009. 

Visitors, residents, and employees are now able to see how a specific home rates on a five-star scale, according to the U.S. Centers for Medicare and Medicaid Services.  The scale ranges from five stars, which represents “much beyond average” to one star, which represents “much below average.”

For those in Washington State, similar tools are available online at the DSHS site with the Nursing Home Compare tool.  There, you can check out the other options, in addition to finding nursing homes in a particular area of the state.

However, ratings alone are not enough to base your decision about where to place an elderly relative.  Visit and ask questions of the residents, the employees.  Do not rest, until you feel confident that you have found the best option available.  Even once you have made up your mind, always remain vigilant for any signs that your loved one is being cared for in the best manner possible.

New Hope for Adult Family Home Residents

olddude.jpegThe State of Washington, in attempting to address elder neglect and abuse, has improved the training for Adult Family home owners.  In addition, as reported by the Seattle Times, residence and their families will have better access to violation reports.  These are important steps in improving the Adult Family Care system.  Abuse and neglect often goes undetected because residence are unable to report due to their disabling conditions or their fear of retaliation. 
Great steps in improving protection for our seniors.

Certificates of Merit Unconstitutional in Washington

Often times, a legal claim for elder abuse or neglect also involves a claim for violating the standards of medical care.

For instance, failure to properly treat a pressure sore usually involves the elder neglect of simply not treating it, but also the failure to adhere to standards of pressure sore treatment and prevention in the medical community. For the medical side of the claim, a claimant had to jump through hoops in order to sue the wrongful party. This meant that, without the benefit of any discovery, a claimant still had to get a doctor to agree that someone else acted below the standard of care.

The Washington Supreme Court today invalidated the requirement of a certificate of merit. Because the opinion says so much about what justice is, what justice requires, and how we should treat impediments to justice, I have included it after the jump.

I cannot stress how much of a win this is for patients rights.

Medical negligence claims are one of the hardest to prove because it involves judgement of a doctor, often in complex situations.

Many times, if a hospital or doctor knows they screwed up, they will impede your pre-trial discovery, hindering your ability to obtain a certificate of merit. The striking down of the certificate of merit requirement removes this procedural roadblock and allows the case to move forward on an even keel with all other negligence claims. It removes a procedural hurdle that was a bar to so many negligence claims, regardless of whether the provider violated the standard of care. This will allow people to have their day in court — to be heard.

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Guilty Verdict in Kent Assisted Living Rape

Joseph Thurura, A 32-year old former assisted living employee has been found guilty of rape by Judge Richard McDermott in King County Superior Court. The rape occurred while the victim, Jaime – a 45-year-old woman who is blind and mute, was living at Integrated Living Services, an assisted living facility in Kent, Washington.

The Seattle Post-Intelligencer reports:

Unable to identify her assailant, police took DNA samples from 11 men who had been in a position to have sexual contact with the woman. Prosecutors asserted that Thurura proved a 99.99 percent match to DNA recovered from fetal tissue.

McDermott’s ruling means Thurura faces 6 ½ to 8 ½ years in prison. He is scheduled to be sentenced August 14 at the Norm Maleng Regional Justice Center in Kent.

An investigation showed that the facility had done criminal background checks, and the staff was informed as to signs of elder abuse. Unfortunately, the discovery of those signs did not translate into a check for rape until Jaime was found to be pregnant.

If your loved one is in a nursing home, be aware of the signs of abuse. Bruising, scratching, or behavior outside the norm for them could be indicators of a traumatic event. Seeing them early may help to prevent abuse or stop it early on. 

3rd Circuit Recognizes Civil Rights Action for Abuse

It’s rare that I see a blog post or a shift in the law that catches me off guard. Its even rarer that such a thing also reaffirms my belief that we will be able to get these companies to change their ways. Joseph Lamy recently posted about a landmark decision out of the United States Court of Appeals for the Third Circuit. The case, Grammer v. John J. Kane Regional Centers, recognizes that an action for rights abuses was created under the Federal Nursing Home Reform Amendments (FNHRA).

While Grammer‘s recognition of a civil rights action at a circuit level is monumental, the recognition that this is a civil rights action is not new. Turns out the Eastern District of New York decided the same thing last year. 

     For all these reasons, I conclude that plaintiffs are part of the class for whose particular benefit the NHRA was enacted, and that the NHRA creates a federal right that plaintiffs may enforce under § 1983. Accordingly, plaintiffs meet the first Blessing factor, as limited by Gonzaga. Moreover, there does not appear to be any dispute that the statute meets the remaining two Blessing factors-that the statute is not “vague and amorphous” and that it imposes binding obligations on the state. The statute mandates a clearly-defined process to be followed by the state before an individual with mental illness may be admitted to a nursing home and if an individual has a significant change in condition while in the facility. See 42 U.S.C. §§ 1396r(e)(7)(A)(i), (e)(7)(B)(i), (e)(7)(C)(iii); 42 C.F.R. §§ 483.104, 483.106, 483.112, 483.126, 483.128, 483.132. The PASRR regulations are precise, unambiguous, and mandatory.

Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008).

It looks like a framework is starting to emerge for the recognition of § 1983 cases, with recognition in the second and third circuits. 

 

 

About Kevin

Kevin Coluccio was recently named one of the Top 10 Super Lawyers in Washington State. He has long history of successful elder abuse/neglect cases and has a stellar reputation for getting results for his injury clients in serious car crashes, pedestrian accidents, trucking accidents, maritime claims, and asbestos injury cases.