CA AG Elder Abuse “Crackdown” Hits Small Fry, Not Nursing Home Owners

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In March 2012, Attorney General Kamala Harris, the chief law enforcement officer for the people of California, and her Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) reopened a closed criminal investigation and belatedly charged two licensed nurses, Donna Darlene Palmer and Rebecca LeAn Smith, with felony elder abuse four years after the March 2008 death of a 77-year-old woman, Johnnie Esco, in nursing home El Dorado Care Center in Placerville, California. However, Attorney General Harris and BMFEA, which is headed by its director, Mark Geiger, and its chief of prosecutions, Mark Zahner, filed elder abuse charges against the nurses, but not the nursing home, only after the Sacramento Bee’s embarrassing September 2011 exposé on the the Esco case, on the widespread falsification of patient records in California nursing homes, and on the case’s rejection by the BMFEA and El Dorado County district attorney. The Sacramento Bee’s March 16, 2012 “Nurses Face Felony Charges in Death of Cameron Park Man’s Wife,” by Marjie Lundstrom, chronicled the four-year crusade of the victim’s 81-year-old widower, Don Esco, who “made hundreds of phone calls and personal visits to local, state and federal authorities to get someone held accountable.” (Photo (right) credit: Office of Attorney General)

Attorney General Kamala Harris filed felony elder abuse and manslaughter charges against Sacramento elder caregiver

Attorney General Kamala D. Harris’ Department of Justice (DOJ) filed felony elder abuse and involuntary manslaughter charges last week against the owner of a Sacramento, California, elder care home, alleging that an 88-year-old resident died last year from severely infected, neglected bed sores, The Sacramento Bee reported. (See the February 12, 2013 “Sacramento Elder-Care Facility Operator Faces Manslaughter Charge” and the February 13, 2013 “Sacramento Caregiver Arrested in Death of 88-Year-Old,” by Sacramento Bee investigative reporter Marjie Lundstrom.)

According to a felony arrest warrant issued on February 11, 2013, by Sacramento County Superior Court Judge Laurel D. White, DOJ’s law enforcement division is charging 52-year-old Silvia Cata—the owner of residential care facility Super Home Care, at 341 Bowman Avenue in Sacramento, California—with violations of Penal Code § 368(b)(1) and Penal Code § 192(b). (See Special Agent Tina Khang’s February 11, 2013 31-page declaration in support of the arrest warrant.) Penal Code § 368(b)(1) refers to “willfully caus[ing] or permit[ting] elder/dependent adult abuse,” and Penal Code § 192(b) refers to “involuntary manslaughter – non vehicular,” the warrant states. Judge White set Cata’s bail at $300,000.

In lieu of bail, Cata was in custody at the Sacramento County Jail, The Bee said.

Elder abuse expert says disparity in AG Harris’ elder abuse prosecutions is biased against small-fry criminals, spares corporate-owned nursing homes

Elder Abuse Exposed.com member Marc B. Hankin, a Beverly Hills attorney who drafted California’s Elder Abuse and Dependent Civil Protection Act, wonders why Ms. Cata was in custody and why Judge White set bail so high. “In our legal system, law enforcement officers don’t have the authority to incarcerate a criminal suspect until a jury has convicted the person in a court of law and unless the person is a flight risk. Incarceration severely hampers a defendant’s ability to work effectively with his or her lawyer and prove innocence,” Hankin said. “In DOJ’s 2001 and 2006 exceedingly rare corporate prosecutions against Sun Healthcare Group and Pleasant Care, respectively, nobody went to jail because these large nursing home chains could employ expensive lawyers who could have kept DOJ prosecutors in their offices late at night if the prosecutors had tried to put those corporate defendants in jail. It appears from the Bee’s articles that Cata probably can’t afford private counsel for a protracted legal battle and may have to rely on a grotesquely overloaded public defender and plea to some crime to get out of jail.”

Elderly victim died from sepsis due to neglected bed sores, says Justice Department’s go-to medical consultant, Dr. Kathryn Locatell

In support of the arrest warrant, the Justice Department said the elderly victim, Georgia Holzmeister, who had lived at Cata’s elder care home since 2007, suffered great bodily injury and died on June 23, 2012, of sepsis (a severe, systemic infection that can lead to organ failure and death) due to necrotic, stage IV pressure ulcers on the victim’s buttocks. DOJ also said that Holzmeister, who suffered from dementia, died only as a result of her caregiver’s (Cata’s) “deliberate and complete reckless disregard for performing the essential duties.”

The DOJ based its decision to prosecute Cata partly on the review of Holzmeister’s medical records by DOJ’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) medical consultant and geriatrician Kathryn L. Locatell, M.D., according to court documents filed by DOJ. Dr. Locatell, who works for BMFEA’s Operation Guardians program (email), which sometimes does surprise inspections of neglectful nursing homes, found that Holzmeister’s neglected pressure sores “must have been present for weeks, if not longer” and caused the victim’s sepsis and death, The Bee reported in its February 13, 2013 article.

Deputy Attorney General Steve Muni, who has worked for the BMFEA in Sacramento since about August 2003, believes that Attorney General Harris’ criminal prosecution of Silvia Cata is “the first time the [California] Department of Justice has pursued a manslaughter case against a caregiver in connection with an elderly resident’s death,” The Bee said.

DOJ’s first-ever manslaughter case against elder caregiver follows AG Harris’ plan last year to crack down on elder abuse

After pointing out Governor Jerry Brown’s dismal record as an elder abuse prosecutor while he was California attorney general from 2007 to 2011, the Bee’s articles last week on the Cata prosecution referred to Attorney General Harris’ announcement in November 2012 that she would start cracking down on criminal elder abuse in nursing homes. The Bee covered Harris’ announcement in Marjie Lundstrom’s November 3, 2012 “California Attorney General’s Office to Ramp Up Elder-Abuse Investigations,” which said Harris was planning to aggressively investigate nursing home abuse and build criminal cases against administrators and employees in profit-obsessed nursing homes plagued by systemic elder abuse.

AG Harris’ bogus elder abuse “crackdown” is sham, publicity stunt, says Elder Abuse Exposed.com

Elder Abuse Exposed.com responded to Ms. Lundstrom’s November 3, 2012 article on its blog in the November 19, 2012 “Bogus ‘Crackdown’ on Elder Abuse by California Attorney General Kamala Harris.” In its November 19, 2012 article, Elder Abuse Exposed.com said, “Kamala Harris’ new campaign to ‘crack down’ on nursing home elder abuse, heralded by the Nov. 3, 2012 Sacramento Bee, is nothing but a sham and publicity stunt that will not likely lead to Harris’ first-ever criminal prosecution and conviction of a wealthy, politically connected nursing home.”

Elder Abuse Exposed.com’s statement about Attorney General Harris’ announcement is turning out to be true. Just like California’s previous attorney general, Governor Jerry Brown, Attorney General Harris has an equally dismal record as an elder abuse prosecutor and has also never prosecuted and convicted even one nursing home chain or owner for elder abuse.

AG Kamala Harris files elder abuse charges against “low-hanging fruit,” not wealthy nursing home owners

In fact, Kamala Harris has a history of filing criminal elder abuse charges against a very limited number of lower-level employees, but not wealthy, politically connected nursing home owners, but usually after media coverage of the initial failure to prosecute embarrasses the attorney general. For instance, in March 2012, Kamala Harris’ BMFEA reopened a closed criminal investigation and belatedly charged two licensed nurses, Donna Darlene Palmer and Rebecca LeAn Smith, with felony elder abuse four years after the March 2008 death of a 77-year-old woman, Johnnie Esco, in nursing home El Dorado Care Center in Placerville, California. However, Harris’ BMFEA, which is headed by its director, Mark Geiger, and its chief of prosecutions, Mark L. Zahner, filed elder abuse charges against the nurses, but not the nursing home owner, only after the Sacramento Bee’s embarrassing September 2011 exposé on the Esco case, on the widespread falsification of patient records in California nursing homes, and on the case’s rejection by the BMFEA and El Dorado County district attorney. The Sacramento Bee’s March 16, 2012 “Nurses Face Felony Charges in Death of Cameron Park Man’s Wife,” by Marjie Lundstrom, chronicled the four-year crusade of the victim’s 81-year-old widower, Don Esco, who “made hundreds of phone calls and personal visits to local, state and federal authorities to get someone held accountable.”

Defendant in AG Kamala Harris’ first-ever manslaughter case against elder caregiver is vulnerable small fry

Although Attorney General Harris proudly announced in a February 15, 2013 press release that she “charged a Sacramento-area residential care provider with manslaughter for negligence that directly led to a patient’s death,” a review of her and DOJ’s very first elder abuse and manslaughter prosecution against a victim’s caregiver reveals that Kamala Harris is continuing her predictable pattern of enforcing criminal elder abuse laws against only a very small number of non-wealthy, vulnerable small fries. In the Justice Department’s case against Silvia Cata, The Bee revealed the following about the defendant:

• Silvia Cata owns, not a large nursing home or nursing home chain, but instead a small single-family house serving as a mom-and-pop-operated residential care facility for the elderly (RCFE).

• According to Trulia.com, Silvia Cata’s elder care home is only 1,516 square feet.

• Silvia Cata, her husband, and her daughter are the elder care home’s only providers.

• Although Silvia Cata has a license to provide care to a maximum of six residents, Cata told investigators she usually takes care of only two to three residents at a time.

• Silvia Cata was still in custody at the Sacramento County Jail in lieu of $300,000 bail.

DOJ relies on its medical consultant, Dr. Kathryn Locatell, to write reports justifying criminal prosecutions against non-wealthy easy pickings

The Justice Department’s case against its easy picking, Silvia Cata, also reveals that the Bureau of Medi-Cal Fraud and Elder Abuse is continuing to rely on its go-to medical consultant, Dr. Kathryn Locatell, to review elder abuse victims’ medical records and then prepare forensic medical reports supporting those limited instances when the DOJ decides, for whatever reason, to file criminal charges against a small-fry perpetrator. For instance, in the DOJ’s case against Silvia Cata, DOJ may have decided to prosecute Cata because she is not a wealthy, politically connected corporation with an army of defense attorneys and because Kamala Harris presumably believes what she said about Cata in an email to The Bee. According to the Bee’s February 13, 2013 article, Harris’ email said that “the owner of this facility was trusted with the care of vulnerable patients and she abused that trust in a shocking way” and that “our state’s most vulnerable citizens deserve and need our protection.” Accordingly, the DOJ relied on Dr. Locatell to review Georgia Holzmeister’s medical records and prepare a forensic medical report stating that Silvia Cata’s criminal negligence caused the victim’s pressure sores that were present for some weeks and caused the victim’s deadly sepsis.

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