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

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The California Department of Public Health’s (CDPH) Licensing and Certification Program—hardly an aggressive watchdog of wealthy, politically connected nursing homes—issued a class “B” citation and monetary fine in October 2011 to a nursing home that negligently failed to administer oxygen to a fainting patient at a flow rate required by physician orders and the patient’s care plan. At that time, the unfortunate, 88-year-old victim suffered rapidly declining oxygen saturation levels, respiratory arrest, and unexpected death. In its citation, CDPH said, “The above violation had a direct relationship to the health, safety and security of Patient 1.” Despite CDPH’s findings, tantamount to obvious elder neglect, the California Department of Justice’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) chief of prosecutions, Mark Zahner, based his decision to file no criminal charges in the case, not on the assigned BMFEA special agent’s expert opinion, but instead on the different opinion of BMFEA medical consultant Kathryn L. Locatell, M.D. Dr. Locatell shockingly said, “There were no breaches of any applicable standards of care in the events leading to Mr. [patient’s name deleted] death. I see no indication of neglect whatsoever. . . . [W]hether or not oxygen was administered, or administered timely . . . was immaterial.”

Kathryn Locatell wrote DOJ-requested “medical report” contradicting DOJ special agent’s recommendation to prosecute elder neglect in wealthy, politically connected nursing home

But an elder abuse case that BMFEA’s chief of prosecutions, Mark Zahner, personally rejected in 2012 reveals that Dr. Kathryn Locatell prepared a forensic medical report for Mr. Zahner that supported the Justice Department’s refusal to prosecute a wealthy, politically connected nursing home owner and that contradicted the earlier findings and recommendations of a BMFEA special agent and highly qualified expert. The case that Mark Zahner rejected, even though the elder abuse was captured on video, involved a wealthy, politically connected nursing home in the Los Angeles-area that negligently failed to comply with an elderly patient’s care plan and physician orders to prevent the patient from suffering syncope (a fainting episode). Then when the patient fainted and required emergency resuscitation, licensed nurses abandoned the dying patient for prolonged periods and negligently failed to follow the patient’s care plan, physician orders, accepted nursing practice, and standard emergency procedures. As a result, the unfortunate, 88-year-old victim suffered rapidly declining oxygen saturation levels, hypoxia, cyanosis, cardiopulmonary arrest, and death.

State nursing home inspectors, DOJ special agent, EMS expert found nursing home neglect during elderly patient’s emergency and death

The California Department of Public Health’s (CDPH) Licensing and Certification Program—hardly an aggressive watchdog of wealthy, politically connected nursing homes—issued a class “B” citation and monetary fine in October 2011 to the nursing home for negligently failing to administer oxygen to the fainting patient at a flow rate required by physician orders and the patient’s care plan. In its citation, CDPH said, “The above violation had a direct relationship to the health, safety and security of Patient 1.”

Special Agent J. Timothy Fives, EMT, who works at DOJ’s BMFEA office in Burbank, California (phone: 818-556-2903), thoroughly investigated the case, interviewing nursing home staff and carefully reviewing the video recordings and patient records. Mr. Fives then submitted a persuasive and well-documented crime report on September 30, 2011, enumerating the nursing staff’s glaring violations of the standard of care and recommending that the Justice Department prosecute for elder abuse-neglect (Penal Code § 368). “The videotape documents a series of gross lapses in patient care that constitute neglect of an elder,” Special Agent Fives stated in his crime report.

DOJ BMFEA special agent who recommended criminal elder abuse prosecution is highly qualified emergency medical services expert 

It is important to note that although Special Agent Fives is not a physician, he is arguably far more qualified than most physicians, including Dr. Kathryn Locatell, in the area of emergency medical services (EMS) to make comments, findings, and prosecution recommendations regarding the standard of care for first responders during a code blue requiring cardiopulmonary resuscitation (CPR). First, Special Agent Fives has been a licensed emergency medical technician (EMT) for more than 30 years, including extensive experience as a medical crewperson on emergency rescue aircraft. Second, Special Agent Fives has been certified by the Peace Officer Standards and Training (POST) Commission to teach first aid and CPR to law enforcement officers. Finally, Special Agent Fives has extensive experience as a director of an emergency medical services department (UCLA Medstar) at a leading metropolitan medical and trauma center (UCLA Medical Center).

The California Department of Justice has acknowledged Special Agent Fives’ expertise regarding the standard of care for the delivery of emergency services during a code blue. The Justice Department publicly commended Special Agent Fives at a ceremony in 2012 for his excellent service and EMS expertise. In addition, BMFEA’s chief of prosecutions, Mark Zahner, said in a March 26, 2012 email to the private attorney representing the deceased victim’s family, “I appreciate the fact that you have relied in no small part on Mr. Five’s [sic] opinion regarding the delivery of emergency services to [patient’s name deleted]. . . . [W]e all understand the depth of Mr. Five’s [sic] background in this area.”

Dep. AG Melissa Biederman rejected DOJ BMFEA special agent’s recommendation to prosecute elder neglect in wealthy, politically connected nursing home

But despite Special Agent Fives’ outstanding qualifications, compelling and evidence-based report, and his strong recommendation to prosecute under Penal Code § 368 for elder abuse-neglect, Mark Zahner’s assistant at the Bureau of Medi-Cal Fraud and Elder Abuse in Burbank, California, Deputy Attorney General Melissa Biederman, flat out refused to prosecute. When the attorney representing the victim’s family complained to Mr. Zahner that Melissa Biederman’s refusal to prosecute was inconsistent with Special Agent Fives’ crime report and recommendation, Mr. Zahner took the somewhat unusual step of soliciting another report from his go-to “medical consultant,” Dr. Kathryn Locatell, instead of initiating a prosecution.

Kathryn Locatell wrote Mark Zahner-requested “medical report” contradicting CDPH citation, DOJ special agent’s crime report, nursing case law, CPR standards

Dr. Locatell, who is not an EMS expert but is, according to Mark Zahner’s March 26, 2012 email, “an expert in geriatric medicine,” then prepared a March 16, 2012 forensic medical report for Mr. Zahner. Dr. Locatell’s report contains factual allegations that the video recordings and the nurses’ admissions to CDPH investigators prove are false. Dr. Locatell’s report also makes medical assertions that flout California nursing case law, accepted nursing practice, standards for CPR during a code blue, and medical science which widely holds that the type of fainting episode during which the patient died could have been prevented. Despite the flagrant violations highlighted by CDPH’s class “B” citation, which the nursing home did not appeal, and highlighted by Special Agent Fives’ crime report, Dr. Kathryn Locatell told Mr. Zahner the following in her March 16, 2012 report:

There were no breaches of any applicable standards of care in the events leading to Mr. [patient’s name deleted] death. I see no indication of neglect whatsoever. . . . [W]hether or not oxygen was administered, or administered timely, or whether ventilation with a bag-valve device was faulty, was immaterial.

DOJ’s chief elder abuse prosecutor, Mark Zahner, relied on Dr. Locatell’s “report” to reject DOJ BMFEA special agent’s recommendation to prosecute nursing home neglect

Relying on Dr. Kathryn Locatell, who is not an EMS expert, to make opinions regarding the standard of care for first responders during a code blue requiring CPR, Mark Zahner said in his March 26, 2012 email that he was rejecting the recommendation of Special Agent J. Timothy Fives, EMT, a veteran EMS expert, to file criminal charges. “I have determined that the Department of Justice will not be filing a criminal complaint in the matter. . . . I am convinced that it is not possible to file a criminal case in this matter,” Mr. Zahner said in his email.

Responding to Kamala Harris’ bogus “crackdown” on nursing home abuse, Elder Abuse Exposed.com exposes facts about Harris, BMFEA, Mark Zahner, Kathryn Locatell

In light of her February 15, 2013 press release, Attorney General Harris wants the public to know that her Department of Justice and the chief of prosecutions for the BMFEA in Sacramento, Mark Zahner, are now prosecuting Silvia Cata, the small-fry easy picking in the DOJ’s first-ever elder abuse and manslaughter prosecution against a victim’s caregiver. But Elder Abuse Exposed.com wants to publicly expose the following troubling facts regarding Attorney General Harris, DOJ’s BMFEA, Mark Zahner, and Dr. Kathryn Locatell:

• Mark Zahner refused in 2011 and 2012 to follow Special Agent Fives’ recommendation to prosecute under Penal Code § 368 for elder abuse-neglect in a wealthy, politically connected nursing home.

• In the past almost seven years, while Mark Zahner has been BMFEA’s chief of prosecutions, Mr. Zahner and BMFEA have still not prosecuted and convicted even one corporate-owned nursing home operator or chain under Penal Code § 368 for elder abuse.

• The California Department of Justice’s BMFEA has never prosecuted and convicted even one corporate-owned nursing home operator or chain under Penal Code § 192(b) for manslaughter.

• Since Kamala Harris became attorney general in 2011, she has still not prosecuted and convicted even one corporate-owned nursing home operator or chain under Penal Code § 368 for elder abuse or under Penal Code § 192(b) for manslaughter.

• Long before Dr. Kathryn Locatell took a position in the Department of Justice in Sacramento as BMFEA’s go-to “medical consultant,” she was an outspoken advocate for the disabled elderly in California nursing homes and a vocal critic of the DOJ’s BMFEA. For instance, in testimony before U.S. Senator Charles Grassley’s U.S. Senate Special Committee on Aging hearing “Betrayal: The Quality of Care in California Nursing Homes” on July 27, 1998, Dr. Locatell said:

Lack of oversight and enforcement on the part of the regulators. When there is little or no attempt by regulatory agencies to evaluate and enforce compliance with State and Federal law, it is not surprising that nursing facilities continue to provide inadequate and inhumane care. . . .

I filed an Elder Abuse Report with the county Ombudsman’s Office, as well as a complaint with the state Department of Health Services. In spite of numerous attempts to speak with a nurse evaluator, I never received a returned phone call. The Ombudsman’s office was unable to substantiate the complaint because the patient had died before the representative visited the facility, about one week after the incident. I later discovered that the facility had been issued a Class “B” citation for the use of illegal wrist restraint as a result of my complaint. The Elder Abuse Unit of the California State Attorney General’s Office investigated the complaint, but has not yet filed criminal charges. It is my understanding that this unit has never prosecuted a single case of elder abuse occurring in nursing homes. [Emphasis added.]

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