Feb 222013
 

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California DOJ Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) chief of prosecutions, Mark Zahner, files no criminal charges after Dr. Kathryn Locatell protects nursing home

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 Oct. 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.”

DOJ Special Agent J. Timothy Fives, EMT, who works at the BMFEA office in Burbank, Calif. (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 Sept. 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, veteran 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, EMS expert’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, Calif., 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 Feb. 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 BMFEA 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.

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

  1.  

    Let’s all ask ourself “why” is the state charging small owned facilities for neglect and skilled nursing homes can get away with murder. Is the state trying to close down all small owned facilities? If this woman is being charged with manslaughter, then the state licensing department should be charged along with her! This resident died in 2012, and yet the licensing department let this woman operate her facility for another 6 months or so? If this woman was such a threat to her residents, then why leave the other residents in her care? I want to hear the story of all the other families that had their loved ones in Silvia’s care. What is their opinion? What’s the real truth to this story besides what the papers say? What has this country come down to? What happened to innocent until proven guilty? My opinion is this, the state, the media and the Sac Bee can’t wait to get a story and publish it even if they don’t have the correct information about someone. It’s all about publicity even at the cost of a human being. Let’s not believe everything we hear and only half of what we see! I want to hear the other side of the story!!!

  2.  

    Oh, I’m so glad I found this site. I’ve been wanting to vent for so long on this. Each time I hear or read about how Silvia Cata did not care for Ms. Holzmeister, etc. etc., my stomach turns and my blood boils. Silvia Cata cared for my grandmother for over 4 years, and at that time my grandmother never looked so good. Although she had the early onset of dementia, Silvia always took care to make sure grandma had lotion on her skin, took her outside to smell the flowers and see the other residents walking and socializing. Grandma even gained weight due to Silvia’s nutritious meals. I was there one time and noticed that grandma had a hard time swallowing, so Silvia took the time to puree all of her meals so she could drink them through a straw.

    We (my mom and dad) would visit grandma regularly with my young son and each time we were treated as family. Silvia would offer us drinks, have us sit and visit with grandma and the other residents if they were available. Silvia would always see if her grandsons, who lived close by could come visit to give my son someone to play with while we were visiting grandma. Silvia and her husband John would regularly give us fruit or vegetables from the garden when we left. We always felt welcome, anytime we stopped by. While there, Ms. Holzmeister, the person who recently passed away, always wanted her family to come visit. They were never there when we were visiting, and we’re not sure they ever visited.

    Silvia’s care facility was always spotless. She was always working on cleaning. This was something I always aspired to with a small child, but was always impressed that Silvia could care for the seniors in her care as well as take care of her family as well. Amazing woman!!!

    I could go on and on about how I feel an injustice is being done here due to politics and someone’s aspirations to advance politically, but I think I should stop now.

    My family and other people who were cared for by Silvia herself have written letters to her and her defense, but so far there has been no action. I’m hopeful that all good will prevail.

  3.  

    The Sacramento Bee just reported on March 15, 2013 that the California Department of Justice (DOJ) has offered a plea deal to defendant Silvia Cata. Also, The Bee reported, “Deputy Attorney General Steven Muni warned [Cata’s attorney, Johnny] Griffin [III,] and Cata, who is still in custody, that if a deal isn’t struck at the next court date, the offer would ‘never ever be renewed.’” (See “Plea Deal Offered in Elder-Care Case” by Marjie Lundstrom at http://www.sacbee.com/2013/03/15/5264684/plea-deal-offered-in-elder-care.html.)

    We’ve said that the disparity in Attorney General Kamala Harris’ elder abuse prosecutions is biased against small-fry criminals and spares corporate-owned nursing homes and assisted living facilities.

    When the Silvia Cata story first broke, we were wondering why Ms. Cata was in custody and why Judge Laurel D. 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.

    In then-Attorney General Bill Lockyer’s, not Attorney General Harris’, 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, like Steve Muni and DOJ’s chief elder abuse prosecutor, Mark Zahner, in their offices late at night if the prosecutors had tried to put those corporate defendants in jail.

    We said in our article above that Cata probably couldn’t afford private counsel for a protracted legal battle and may have to plea to some crime to get out of jail. Well, it looks as if we were right!

    But extorting a plea deal from an incarcerated, non-wealthy, small fry is not impressive at all! Prosecuting and convicting the principal wrongdoers and institutional elder abusers (the wealthy, politically connected nursing home corporations) are impressive and require true prosecutorial skills.

    Please ponder the following about the California Department of Justice:

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

    The California DOJ 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.

  4.  

    I have been waiting for a good day to comment, and now it’s finally here! I’m outraged and angry at the system in California! I am an administrator to a facility in Sacramento, and Silvia’s story has made me look at the state in disgust! The state has and is always treating small facilities unfair and inappropriate. When are administrators and owners of RCFEs gonna speak out and stand up for their rights? Or do we as administrators have rights in the state of California? I have so many questions and so little answers on behalf of our judicial system and how they treat people in this country! I believe this case with Silvia is all political. I think ALL facility owners should protest and stand up for their rights against the state and the licensing department! When is the state gonna pay for their mistakes? How many people out there hear what I’m saying????????

    •  

      Thanks for taking the time to comment about this story!

      Please be sure to see our Contact the Media page to let others in the news media know how “this case with Silvia is all political.” Please also tell others you know in your business to leave their comments here and with the listed news media contacts.

  5.  

    Ok, so I’m also an administrator and licensee to my facility and agree with all the comments above!!! I’m so angry at how the state is handling the Cata case! We as owners of small facilities always get mistreated by the state licensing department, and no one takes action. How can we change the laws for administrator rights? I’ve had several LPAs come out and cite my facility for reasons that didn’t make sense! If someone would look up all the facilities in Sacramento and check on all the things a facility was cited for…well….there would be no end. We all get cited all the time. It’s like the state can’t wait to walk into a facility and find something wrong. Ridiculous if you ask me! I’ve seen firsthand how mean and unfair the licensing department treats small facilities. I say it’s time for all the small facilities owners to speak out!

  6.  

    Fully documented information is an excellent way to convince people to move over to your point of view. Thank you for presenting a wonderful point of view in this article.

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