Escondido case could lead to nursing home workers being held criminally liable

By: TERI FIGUEROA - Staff Writer | Saturday, March 26, 2005 9:51 PM PST ∞

ESCONDIDO ---- An Escondido case winding its way through the local courts could make it a crime for individual nursing home workers to neglect their patients under a law that historically has applied to nursing homes but not to employees.

It's a criminal case that people who work, live or have loved ones in nursing homes may want to watch, one that could represent a change in the way prosecutors use the law to hold someone accountable when nursing care gets skipped.

It's been more than a year since 12 former caregivers were arrested on criminal charges that they neglected a patient at SunBridge Care & Rehabilitation for Escondido-East, the nursing home where they worked. Prosecutors say that the workers neglected the now-82-year-old woman in a number of areas, including failing to turn or reposition her enough and/or to give her enough water.

The case could have profound implications for nursing home workers who tend to the thousands of California nursing home residents by changing sheets and bedpans, by giving patients water and turning them to avoid bedsores.

The criminal case at hand boils down to a battle over who is responsible when a nursing home caregiver neglects part or all of their duties.

In recent years, nursing homes have been held responsible for patient neglect.

Prosecutors in the Escondido case want to broaden the scope of the law to encompass individual nursing home workers ---- meaning that a caregiver's failure to perform certain tasks could land them in criminal court.

The chief prosecutor in the attorney general's elder abuse division said the government wants not only to prosecute the 12 Escondido workers, but also to get the word out that caregivers will be more closely watched.

"The main purpose is to bring them to justice," Collin Wong-Martinusen, director of the attorney general's office's Bureau of Medi-Cal Fraud and Elder Abuse, said of the decision to prosecute the 12 workers.

He also said the case should "send a loud message to the tens of thousands of caregivers in this state."

"The loud, reverberating message we want to send to the caregivers in California is that if they fail (to provide adequate care), we want them to know that accountability is awaiting them just around the corner," he said.

Benjamin Gluck, an attorney for one of the 12 accused workers, said the attorney general's office is crossing a line with some of the criminal charges, that the prosecutors should be going after nursing homes, not low-level caregivers.

"The theory of the law is to try to put the pressure on the people who can fix things," Gluck said. "(Individual caregivers) can't fix anything."

Gluck characterizes the Escondido case as a "novel" application of state law. Wong-Martinusen of the attorney general's office called it "historic."

Holding someone accountable

The attorney general's office began prosecuting nursing home facilities in 1999, after Bill Lockyer became the state's chief prosecutor.

The office has gone after facilities across the state. Some of the nursing homes have been found criminally liable for neglect, and ended up getting sold to new owners.

The local case, however, marks one of the first times that the attorney general's office is using the same state laws it uses to prosecute nursing homes to charge individual nursing home caregivers for failing to fulfill patient responsibilities.

If prosecutors are successful, it could mean that nursing home caregivers who repeatedly, systematically, neglect their duties ---- for example, those who don't provide the required medications to patients, don't give them the correct amount of water or who don't reposition them as often as they should ---- are taking a chance that criminal charges could be filed against them.

The defense attorneys for the 12 accused workers argue that the law was not meant to be applied to individuals, only to facilities.

The local case

Wong-Martinusen said criminal neglect is essentially the "systemic failure of caregivers ---- individual or corporate ---- to fulfill their patient stewardship responsibilities."

Neglect is "not isolated mistakes, but a chronic pattern of negligence," he said.

In the local case, the family of the female patient at the center of the accusations gave permission for investigators to put a hidden camera in her room during a six-day span in October 2003.

The accusations are based on footage from the tape.

Court documents filed by prosecutors offer a glimpse at the details of the alleged neglect, including allegations that some of the licensed vocational nurses failed to give the patient any of the medicinal eyedrops she required.

Also, many of the accused certified nurses assistants failed to turn or reposition the patient during some of their eight-hour shifts, according to the documents. Others turned her only a percentage of the time. The patient was supposed to have been turned every two hours to prevent bedsores.

"Were they so far beyond the pale that they should be criminally liable?" defense attorney Gluck said. He points out that the defendants cared for the woman, brushing her hair and changing linens and diapers.

Five of the defendants were licensed vocational nurses, the other seven were certified nurses assistants. At the time of the alleged crimes, all 12 were caregivers at a nursing home that until recently was known as SunBridge. The facility has since been sold to another nursing home operator.

The current charges that the 12 face ---- all of them are misdemeanors ---- include one count each of elder neglect and falsifying medical records, and two charges each that they failed to follow state nursing-home regulations.

The charges of failing to follow regulations are the charges are those that Gluck calls "absurd" to bring against individual caregivers. And, at this point, those charges are at the center of a legal skirmish.

Trial on hold for now

The local case has been in and out of court since January 2004. The 12 have all pleaded not guilty.

The pleas came just last month, after attorneys for the 12 failed to convince Judge Harry Elias that the statutes the prosecutors were using did not apply to their clients.

The defendants quickly took their case to an appeals court, and won a delay in the criminal proceedings until the appellate court sorts out just who the law is geared at, be it individual workers or skilled nursing facilities.

Prosecutors have until about mid-April to file their response with the appellate court, which will hear arguments on the matter May 20.

The California Association of Health Facilities stepped into the fray this month, sending to the appellate court a letter that sides with the caregivers.

The statewide group argued in the letter that the Escondido case "severely threatens the due process and liberty of tens of thousands of employees of California nursing facilities."

In the letter, the organization notes that turnover at nursing facilities is higher than 66 percent a year, and that skilled caregivers are in short supply.

Elias' decision to let the charges against the 12 workers stand, the organization argues, "only threatens to exacerbate" the problem.

"The nursing homes are saying 'We have enough trouble getting people. If (judges) let this mean what the government wants it to mean, no one will ever come to work," Gluck said.

Certified nurses assistants, or CNAs as they are commonly known, make a starting wage of about $8.50 an hour in Southern California, said Ari Yampolsky, a researcher with the Service Employees International Union. The organization represents about 14,000 nursing home workers, including caregivers, across the state.

The union wants prosecutors to blame the nursing homes, not the caregivers, Yampolsky said.

"What we have found is that the problems in nursing homes with both abuse and neglect tend to stem from systemic issues such as short staffing. It's the name of the game," Yampolsky said.

Contact staff writer Teri Figueroa at (760) 740-3517 or tfigueroa@nctimes.com.