Mark Zahner, CA DOJ’s Chief Elder Abuse Prosecutor, Resigns amid Criticism

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 Los Angeles-area 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, cardiopulmonary 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 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. . . . Whether or not oxygen was administered, or administered timely . . . was immaterial.”

Mark Zahner, chief elder abuse prosecutor for CA AG Kamala Harris’ DOJ, steps down amid criticism of selective enforcement

California’s chief elder abuse prosecutor is leaving office amid sharp criticism that he has selectively enforced criminal elder abuse laws against a small number of vulnerable small-fries while sparing the principal malefactors of systemic elder abuse—the wealthy, politically connected, corporate-owned nursing homes.

According to reliable sources, Deputy Attorney General Mark L. Zahner, who, since at least 2003, has been the chief of prosecutions for the Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA), in the California attorney general’s Department of Justice (DOJ) in Sacramento, is stepping down from his position at the end of this month. Mr. Zahner is reportedly leaving his office to head an association of district attorneys in California.

Patients’ rights advocates have criticized Mark Zahner’s office for failing to prosecute criminal elder abuse

Patient rights’ advocacy organizations have criticized the BMFEA for failing to enforce California’s criminal elder abuse statute (Penal Code § 368) against individuals and especially the wealthy owners of profit-obsessed nursing homes and assisted living facilities that routinely understaff and falsify patient records, predictably leading to institutional elder abuse and death. For example, during Mark Zahner’s position as BMFEA’s chief of prosecutions, the federally mandated protection and advocacy agency for the State of California, Disability Rights California (DRC), issued the April 2010 report Victimized Twice: Abuse of Nursing Home Residents, No Criminal Accountability for Perpetrators. Although Victimized Twice said, “The BMFEA is uniquely situated to assume a leadership role in ensuring the prompt reporting, investigation, and criminal prosecution of abuse in SNFs [skilled nursing facilities,]” DRC’s Victimized Twice revealed:

• “[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 BMFEA].”

• “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.”

• California’s elder abuse response and criminal justice system, of which BMFEA is a primary component, has “biases” and “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.”

• “Criminal investigations [including those by BMFEA] 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.”

• “Prosecutors [including BMFEA prosecutors] are reluctant to bring charges against mandated reporters for failing to report resident abuse as required.”

Mark Zahner is leaving a dismal legacy as California DOJ’s chief elder abuse prosecutor, says Elder Abuse Exposed.com

Elder Abuse Exposed.com has also highlighted the BMFEA’s failure to assume a leadership role in addressing criminal elder abuse in nursing homes and Mark Zahner’s dismal legacy as California’s chief elder abuse prosecutor. For instance, Elder Abuse Exposed.com has pointed out:

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

• During former California attorney general Bill Lockyer’s 2006 exceedingly rare corporate prosecution against Pleasant Care, nobody went to jail. Nobody went probably because the corporate nursing home chain could employ expensive lawyers who could have kept DOJ prosecutors, including Mark Zahner, in their offices late at night if the prosecutors had tried to put those corporate defendants in jail.

• Mark Zahner and the California DOJ have never prosecuted and convicted even one corporate-owned nursing home or assisted living facility for manslaughter under Penal Code § 192(b).

• It stretches the limits of credulity to think that not even one nursing home or assisted living facility in California has committed criminal elder abuse or involuntary manslaughter in the past seven years.

• Mark Zahner’s office has a history of prosecuting relatively few criminal elder abuse cases.

• When Mark Zahner’s office has filed criminal elder abuse charges, he has typically filed against a very limited number of lower-level employees, such as certified nursing assistants (CNAs) and nurses. But Mr. Zahner’s office has been reluctant to file these charges against wealthy, politically connected nursing home operators who create the neglectful conditions that make institutional elder abuse inevitable.

• Mark Zahner’s selective enforcement of criminal elder abuse laws has been blatantly biased against non-wealthy, vulnerable small-fries and has spared the wealthy, politically connected, corporate-owned nursing homes.

• Mark Zahner’s rare criminal elder prosecutions have often followed closely on the heels of embarrassing media coverage exposing the BMFEA’s initial failure to prosecute.

• In March 2012, Mark Zahner’s office reopened a closed criminal investigation and belatedly charged two licensed nurses, Donna Darlene Palmer and Rebecca LeAn Smith, with felony elder abuse. The belated criminal charges by Mr. Zahner’s office took place 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, the BMFEA filed elder abuse charges against only the nurses, but not the nursing home owner, and 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.”

• The BMFEA’s first-ever felony elder abuse and manslaughter case against an elder caregiver was a February 2013 prosecution against Sacramento-area residential care provider Silvia Cata. Ms. Cata is a vulnerable small fry who, unlike the corporate defendants in the 2006 Pleasant Care criminal case, was allegedly subjected to a strong-arm raid at her home by DOJ agents and then incarcerated in the Sacramento County Jail after her bail was set at $300,000.

• Mark Zahner and the BMFEA have relied on BMFEA’s go-to medical consultant, Kathryn Locatell, M.D., 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, such as Sivia Cata.

• But, after J. Timothy Fives, EMT, a highly qualified expert and BMFEA special agent, investigated a video-recorded nursing home death during an emergency, wrote a September 2011 crime report, and recommended prosecution for elder abuse-neglect in the wealthy, politically connected nursing home, Deputy Attorney General Melissa Biederman and Mark Zahner rejected Special Agent Fives’ recommendation.

• After personally requesting that Dr. Kathryn Locatell prepare a separate forensic medical report, Mark Zahner relied on Dr. Locatell’s March 2012 report to support his refusal to prosecute the wealthy, politically connected nursing home.

• Mark Zahner relied on Dr. Kathryn Locatell’s March 2012 medical report on the death of the unfortunate 88-year-old victim, even though the highly implausible conclusion in Dr. Locatell’s report, i.e., no wrongdoing whatsoever by the nursing home staff, contradicts each and every one of the following authoritative sources of the standards of care in emergency situations such as the one the victim was in:

• Expert findings by Special Agent J. Timothy Fives, EMT, who 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) and has been certified by the Peace Officer Standards and Training (POST) Commission to teach first aid and cardiopulmonary resuscitation (CPR) to law enforcement officers. Special Agent Fives concluded in his September 2011 crime report, “The videotape documents a series of gross lapses in patient care that constitute neglect of an elder.”

• Expert findings by a medical doctor who is an assistant clinical professor at the UCLA School of Medicine and a Diplomate of the American Board of Forensic Examiners.

• Expert findings by a medical doctor who is a former associate clinical professor at the UCLA School of Medicine, a current physician specialist at the Los Angeles County Department of Health Services, and a Diplomate of the National Board of Medical Examiners.

• An October 2011 class “B” citation and monetary fine issued to the Los Angeles-area nursing home by the California Department of Public Health’s Licensing and Certification Program.

• 2010 American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care (Circulation. November 2, 2010).

• Abundant California nursing case law about cases similar to the emergency situation that the elder abuse victim was in.

Is Mark Zahner suitable to lead an association of district attorneys in California?

Given Mark Zahner’s appalling record as California’s chief elder prosecutor, e.g., not even one prosecution and conviction of a wealthy, corporate-owned nursing home or assisted living facility for elder abuse under Penal Code § 368 in the past seven years, Elder Abuse Exposed.com maintains that Mr. Zahner may not be suitable to be a leader of an association of district attorneys, who are also responsible for investigating and prosecuting nursing home elder abuse. The ability to lead by example is a prerequisite to being a good, or even great, leader. But as the leader of BMFEA prosecutors throughout California, Mark Zahner has failed to walk the walk, even though he talks the talk. He has failed to do what Disability Rights California said in Victimized Twice about what the BMFEA is “uniquely situated” to do, i.e., “to assume a leadership role in ensuring the prompt reporting, investigation, and criminal prosecution of abuse in SNFs.”

Soon-to-be-published documents will expose how elder abuse victims are “victimized twice”

When Elder Abuse Exposed.com soon publishes source documents regarding Mark Zahner’s reliance on Dr. Kathryn Locatell’s implausible conclusion in her March 2012 medical report while refusing to prosecute the corporate-owned nursing home, the documents will explain why Disability Rights California has said that elder abuse victims are often “victimized twice.” The documents, such as Special Agent Fives’ September 2011 crime report and an expert medical and legal analysis of Dr. Locatell’s March 2012 medical report, will also serve as evidence of the broken nursing home inspection and complaint investigation process that U.S. Senator Charles Grassley (R-Iowa) has decried.

Senator Grassley, a staunch and longtime advocate of abused nursing home residents and government whistleblowers, has said that the nursing home survey and enforcement process is “broken.” Senator Grassley has also said that the survey and enforcement process “has been seriously corrupted” by an intertwined, “unspoken political presence” and “high-level state bureaucrats” and “state lawmakers acting on behalf of facility administrators” who pressure state nursing home inspectors to overlook or systematically downgrade even high-level citations and deficiencies regarding quality of care.

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