Elder Abuse

Criminal charges for elder abuse in a nursing home may arise from instances that involve a disgruntled family member, issuance of citation by the Department of Public Health, disgruntled former employee, and/or transferring a patient to the acute care hospital.  Intervention by an experienced defense attorney is necessary in the early stages as to prevent a criminal and civil filing.   

A disgruntled family member may embellish the facts and circumstances as they are not pleased with a nursing staff member or the resident’s roommate.  Most often times when a family member wants to file a lawsuit for elder abuse, a Plaintiff’s attorney is behind the scenes encouraging the family member to allege abuse, neglect, or injury of unknown origin to the Department of Public Health, Ombudsman, local police department, and/or the California Attorney General’s Office as to support their claim for a civil lawsuit. Cross-reporting amongst agencies will trigger multiple investigations by numerous governmental agencies which later can be subpoenaed and used by the Plaintiff’s attorney in a civil action.  The Plaintiff’s attorney will be using the government resources at no cost to him or his client to investigate the case and build up the case for a civil lawsuit which has a much lower burden of proof then a criminal case.  If the case results in a deficiency, citation, or even criminal charges, the plaintiff’s attorney will attempt to use that information for the benefit of going after the provider in the civil case.  


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The Department of Public Health has regulatory authority to investigate allegations and issue deficiency statements, B-Citations, A-Citations, or AA-Citations.  These statements of deficient conduct are available to the public and become a road map for prosecution by the Attorney General’s office as well as a road map for a Plaintiff’s lawyer looking to go after deep pockets.  Other instances that trigger the Department of Public Health arise from a disgruntled employee that is terminated who makes allegations attempting to get back at the facility.  Another instance that triggers a criminal investigation is when the patient is transferred to the acute hospital and the acute hospital points the finger at the nursing home.  Generally speaking, when the statement of deficient conduct involves allegations of dehydration, bed sores, sepsis, UTI, weight loss, under staffing, or restraints, these require immediate intervention by an experienced defense attorney in order to investigate the facts and circumstances and prevent a criminal filing.  Attorney Arthur Khachatourians and his defense team at the Khachatourians Law Group have the experience in defending nursing homes and residential care facilities when challenged with criminal and civil exposure.    

Some common examples of criminal prosecution in Residential Care Facilities for the Elder are the following:


Community Care Licensing claims the Resident was neglected because the provider failed to transfer the resident to a higher level of care such as a skilled nursing home. Patient is transferred to the acute hospital and the acute hospital alleges that the pressure ulcers on the patient were a product of neglect.



Licensing claims the Residential Care Facility lacked of sufficient staffing and failed to provide the necessary care and services to maintain the quality of life for the resident.  


Caregiver groped an elderly resident’s breast, upper thighs and vaginal area against the resident’s will.  Resident sustained bruising. Provider or supervisor prosecuted for failing to report elder abuse.

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Resident was taken to the acute hospital and the social worker at the hospital completes an SOC341 Form alleging that the resident suffered from major dehydration and severe sepsis resulting in death.


Definition of an Elder and Dependent Adult










Elder


An elder is a person residing in California who is age 65 or older.

Dependent Adult

A dependent person is a person who is between the age of 18 and 64 and has physical or mental impairments that substantially restrict his or her ability to carry out normal activities or to protect his or her rights. This definition includes, but is not limited to, those who have developmental disabilities or whose physical or mental abilities have significantly diminished because of age.  










Elder Abuse or Dependent Adult Abuse Charges and Penal Code 368(b)(1) and Penal Code 368(c)


The elder abuse statutes in California primarily fall in two categories:  Penal Code 368(b)(1) and Penal Code(c).  Elder abuse charges filed under California Penal Code section 368c are a misdemeanor. The punishment can be anywhere from a fine to imprisonment in county jail not to exceed one year.  



Penal Code 368(b)(1)is a wobbler, which means the case can be filed as either a felony or a misdemeanor.  What differentiates the statutes, is Penal Code 368(b)(1) required great bodily injury or likely to produce great bodily injury.  In California, the punishment for Penal Code 368(b)(1) can be anywhere from a fine up to $6000 or imprisonment in county jail for up to a year or imprisonment in state prison for two, three, or four years.


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If the victim suffered great bodily injury, then there is an enhancement of three years if the victim is under 70 years of age, five years if the victim is 70 years of age or older.  If the government alleges that the conduct was the proximate cause of the victims death, the punishment has an additional term of 5 years in state prison if the victim is under 70 years of age and seven years if the victim is 70 years or older.




When the defendant is charged with either elder abuse or dependent adult abuse pursuant to either California Penal Code section 368c as a misdemeanor or under California Penal Code section 368(b)(1) as a felony, the People have the burden to prove their case beyond a reasonable doubt. 

There are four instances where a person may face criminal charges for elder abuse in California:

First where the People allege that the Defendant willfully inflicted unjustifiable physical pain or mental suffering on the elder or dependent adult;

Second where the People allege that the Defendant allowed someone else who the defendant was supervising and controlling to inflict unjustifiable physical pain or mental suffering;

Third where the People allege the defendant was having care or custody of the elder or dependent adult and the defendant willfully cause or permitted that person or health to be injured;

Lastly, where the People allege the defendant having care or custody of the elder or dependent adult willfully caused or permitted that person to be placed in a situation where the person’s health was endangered.  In this fourth category the People also need to prove that the defendant had a legal duty to supervise and control the conduct of the person who caused or inflicted unjustifiable physical pain or mental suffering but failed to supervise or control that conduct and the defendant was criminally negligent when (he/she) caused or permitted the elder to suffer, get inured, or be endangered. Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

He or she acts in a reckless way that creates a high risk of death or great bodily harm; and

A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

Abuse of Elder or Dependent Adult Likely to Produce Great Bodily Harm or Death (California Penal Code § 368(b)(1))

If the defendant is charged with a felony elder abuse pursuant to Penal Code section 368(b)(1), in addition to the allegations stated above, the People must also show that the defendant inflicted suffering on  the elder or dependent adult or caused or permitted  the elder or dependent adult to suffer, be injured,  be endangered under circumstances or conditions likely to produce great bodily harm or death.  

Great Bodily Injury in Elder Abuse Case in California

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.  An elder or a dependent adult does not need to actually suffer great bodily harm. But if an elder or a dependent adult does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense.

Some Defenses:

Justified Care Plan/Physician Orders

If the physical pain or mental suffering was part of diagnosis or treatment, then it was not inflicted unjustifiably.  It is only unjustifiable physical pain or mental suffering when the pain or suffering is not reasonably necessary or is excessive under the circumstances. For example, a licensed staff may need to retrain a patient who is has epilepsy and is having seizures or the least restrictive measures were used when applying the restraints as to prevent a patient from injury.  Physician orders may justify the discomfort along with the care plan and the interdisciplinary teams notes.  The mere fact that the patient suffered physical pain does not mean that the care giver abused the patient.  

Cognitive Diagnosis (Alzheimer’s/Dementia)

Sometimes, patient who suffer from severe mental illnesses such as Dementia or Alzheimer’s may recollect events that happened in the past and may accuse a staff member of an incident believing it happened in the present.  Witness credibility and corroboration of witness statements is important.  In one instance, Mr. Khachatourians was able to dismiss a felony elder abuse charge filed against a wound care treatment nurse, by showing his client was on vacation at the time the patient alleged the occurrence coupled with the patient’s diagnosis.  

Not Legal Duty to the Elder

The person had no legal duty to the elder.  Note that a person who does not have care or custody of an elder/a dependent adult may still have a legal duty to supervise and control the conduct of a third person who can inflict abuse on the elder/dependent adult if the person has a special relationship with the third person. A special relationship is created, for example, when (1) a person takes charge of a third person whom he/she knows or should know is likely to cause bodily harm to others if not controlled, and (2) the person has the ability to control the third person’s conduct.


Proper Supervision/ Conduct Outside the Course and Scope of Employment

In instances where the Director of Nurses or the Administrator is jointly prosecuted with a low level nurse or CNA, the supervisor may have the defense that the conduct of the low level nurse was outside of the course and scope of employment.  In other words, there may be an instance where the Director of Nurses exercise the upmost caution, control, and supervision, and the low level employee willfully inflicted pain or suffering upon the elder and dependent adult outside the course and scope of employment.  

Falsification for Hidden Agenda

Witness may lie or have a hidden agenda in obtaining a criminal prosecution in order to help them in the civil case against the facility.  

The act was not willful

Someone commits an act willfully when he or she does it willingly or on purpose. If the act was not willful or it was not criminal negligence, it is not elder abuse.  Criminal negligence requires more than just mere negligence or mistake. A person acts with criminal negligence when his conduct is reckless and creates a high risk of death or great bodily harm; and a reasonable person would have known that acting in that way would create such a risk. In these instances, having a medical expert will be very useful to assist in rejecting the case.

Not a Pressure Sore or Unavoidable

The wound was not a pressure ulcer, but a Kennedy Ulcer Or the pressure ulcer was unavoidable.  




Successful Results in Criminal Elder Cases

Rejection

Felony Rape at an Residential Care Facility for the Elder. Criminal charges filed with the District Attorney’s Office for Rape of a Dependent Adult.  Mr. Khachatourians and his investigative team were able to swiftly investigate the allegations and provide additional information to the Los Angeles District Attorney’s office to successfully reject the case for insufficiency of evidence. Mr. Khachatourians prevented the Administrator and the Licensed Nurse from being prosecuted for Felony Elder Abuse pursuant to Penal Code 368(b)(1) and prevent rape charges from being filed against a caretaker pursuant to Penal Code 289.

Not Guilty by Jury


Murder Charges filed at Major Hospital – Reduced to Voluntary Manslaughter, NOT GUILTY on all counts (Involuntary and Voluntary Manslaughter) by Jury. Client obtained an acquittal on all counts. Mr. Khachatourians ensured his client return back to work.

Not Guilty by Jury

9 counts of Falsifying Medical Records, Forgery, Obstructing a Police Officer charges were filed against 2 CNAs. Mr. Khachatourians along with his co-counsel, Anthony Brooklier, obtained not guilty verdicts on all counts.  

Rejection

A Residential Care Facility for the Elder was under investigation for Manslaughter and Elder Abuse of a patient who passed away in the patio.  Mr. Khachatourians was the lead counsel responsible in representing the employees under investigation by the local sheriff’s department, attorney general’s office, and licensing.  Mr. Khachatourians prevented criminal charges from being filed against his clients.

Dismissal

CNA at a SNF accused of battery. Mr. Khachatourians obtained a dismissal prior to trial.

Not Guilty by Jury

9 counts of Falsifying Medical Records, Forgery, Obstructing a Police Officer charges were filed against 2 CNAs. Mr. Khachatourians along with his co-counsel, Anthony Brooklier, obtained not guilty verdicts on all counts.  

Dismissal before Trial

Elder Abuse charges against a Nurse for Dehydration, Sepsis, Lack of Supervision, Pressure Sores allegedly resulting in Death. Mr. Khachatourians obtained a dismissal of the case against his client prior to trial.



Evidence of Uncharged Abuse of Elder or Dependent Person

Uncharged criminal acts may come in the underlining criminal case to prove that the person had a propensity to harm elders or dependent adults.  There is a specific jury instruction that allows the prosecution to introduce evidence of uncharged acts of the defendant making prior statement of deficient conduct in a nursing home relevant.  The jury instruction states as follows:

The People presented evidence that the defendant committed abuse of an elder/a dependent person that was not charged in this case.  Abuse of an elder or a dependent person means physical abuse, sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or the act by a care custodian of not providing goods or services that are necessary to avoid physical harm or mental suffering, or other treatment that results in physical harm or pain or mental suffering.

You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged abuse of an elder or a dependent person. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

If the People have not met this burden of proof, you must disregard this evidence entirely.

If you decide that the defendant committed the uncharged abuse of an elder/a dependent person, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit abuse of an elder/a dependent person, and based on that decision, also conclude that the defendant was likely to commit and did commit the offense involving abuse of elder or dependent person, as charged here. If you conclude that the defendant committed the uncharged abuse of an elder/a dependent person, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the offenses involving abuse of elder or dependent person. The People must still prove each alleged charge beyond a reasonable doubt.

Criminal and Civil Defense Consultation

If you or your facility is under investigation by the Department of Justice Bureau of Fraud and Elder Abuse, Department of Public Health, or the local law enforcement, call Attorney Arthur Khachatourians for immediate defense plan of action.  When an investigation is launched by multiple governmental agency this may lead to multiple inconsistent statements and subject your employees and your facility to criminal prosecution, regulatory sanctions, and a civil action.  Intervention by an experienced defense attorney is necessary in the early stages to prevent a criminal and civil filing.