California Attorney General Kamala Harris’ Failure to Protect Elder Abuse Victims in Nursing Homes


 California Attorney General Kamala Harris fails to prosecute elder abuse against nursing homes

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)

California law enforcement’s and prosecutors’ reluctance to earnestly investigate and prosecute criminal elder abuse, especially in wealthy, politically connected nursing homes

Elder Abuse exposes to the light of day the following disturbing secrets about many California law enforcement agencies and prosecutors:

    • “[Nursing home abuse] cases that make it into the criminal justice system are not rigorously investigated or prosecuted [by the local district attorney or the Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA), which is part of Attorney General Kamala Harris’ California Department of Justice (DOJ)].”
    • “The BMFEA investigated all nine cases referred to them, but did not prosecute any of the cases,” which were from a total of 12 nursing home abuse cases that DRC’s elder abuse investigators examined for Victimized Twice and that involved misdemeanor and felony assault, battery, sexual battery, sexual assault, and rape.
    • “BMFEA took days before initiating an investigation into an abuse referral and, ultimately did not file charges in any of the [nine] cases that it investigated,” even though Deputy District Attorney Paul Greenwood, who leads San Diego County’s exemplary elder abuse unit, and geriatrician and elder abuse expert Diana Koin, M.D., who both “reviewed facility and DPH investigation records,” confirmed that all nine cases “involved dependent adult or elder abuse and . . . were indicative of criminal conduct.”
    • “Criminal investigations are not thorough and often produce insufficient evidence for criminal prosecution.”
    • “Crimes against nursing home residents are less likely to be reported, investigated, and prosecuted than crimes against individuals living in the community.”
    • Crimes against nursing home residents “are often treated as licensing or administrative matters and not as crimes.”
    • The elder abuse response and criminal justice system “has failed,” even though “laws are seemingly in place to protect victims and to ensure that incidents are promptly reported and investigated and that prosecutors have the necessary tools to pursue assailants who prey on this vulnerable population.”
    • “Prosecutors are reluctant to bring charges against mandated reporters for failing to report resident abuse as required.”
  • The reluctance of law enforcement officers even to take an elder abuse complaint report. “The problem is when law enforcement try to enforce, their reaction is that it’s a civil matter—not something we get involved in,” said Paul Greenwood in California Watch’s March 11, 2011 “Lawmakers Push for Elder Abuse Reform,” by Deia de Brito. Greenwood also said that when law enforcement officers refuse to take a report of criminal elder abuse, the reporting party “gives up.”
  • The reluctance of Attorney General Kamala Harris’ Bureau of Medi-Cal Fraud and Elder Abuse to prosecute criminal elder abuse and deaths in wealthy, politically connected nursing homes. Eleven years after California elder abuse expert Dr. Kathryn Locatell testified before Senator Charles Grassley’s (R-Iowa) Senate Special Committee on Aging that “the Elder Abuse Unit of the California State Attorney General’s Office . . . has never prosecuted a single case of elder abuse occurring in nursing homes,” the California Second District Court of Appeal made the following observations in People v. Medlin (2009) 178 Cal.App.4th 1092:
    • “There are no reported [appellate] decisions describing criminally negligent medical procedures that violated [California’s criminal elder abuse statute, Penal Code] section 368.”
    • “Criminal convictions for violation of section 368 most commonly involve non-professional caregivers neglecting or abusing family members [i.e., not wealthy, politically connected nursing homes].”
  • California Department of Justice data showing that California’s former attorney general and current governor, Jerry Brown, has undermined and nullified budget increases to the Bureau of Medi-Cal Fraud and Elder Abuse in recent years. Despite increased funding, “civil and criminal elder abuse prosecutions fell about one-third,” according to California Watch’s August 21, 2010 “Prosecutions of Elder Abuse Cases Decline under Jerry Brown.”
  • DOJ BMFEA deputy attorneys general and high-level officials who adamantly refuse to file criminal charges against wealthy, politically connected nursing home owners and nursing staff, even when confronted with overwhelming, incontrovertible in-room video evidence proving beyond a reasonable doubt a patient’s death during elder abuse and willful falsification of patient records.
  • DOJ BMFEA deputy attorneys general and high-level officials who infrequently reopen closed criminal elder abuse investigations and file criminal charges against nursing home employees, but not their wealthy, politically connected employers, only after influential news reporters expose DOJ BMFEA’s unjustifiable failure to initially file charges in those cases. See, for example:
    • The Sacramento Bee’s March 16, 2012 “Nurses Face Felony Charges in Death of Cameron Park Man’s Wife,” by Ms. Lundstrom, which explained that BMFEA reopened its 2008 criminal investigation of Johnnie Esco’s death and filed felony charges against two licensed nurses, but not the nursing home, only after the Bee’s embarrassing two-part series and “the four-year quest of [81-year-old] Don Esco to find justice for his late wife,” during which he “made hundreds of phone calls and personal visits to local, state and federal authorities to get someone held accountable.”
  • DOJ BMFEA high-level prosecutors who disregard investigation reports by honest, conscientious BMFEA special agents and highly qualified medical experts substantiating criminal elder abuse in nursing homes and recommending criminal prosecution.
  • DOJ BMFEA high-level prosecutors who solicit fraudulent, flagrantly biased medical reports from dishonest experts for hire to try to whitewash and undermine overwhelming evidence of criminal elder abuse in nursing homes.
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