Jul 312013
 

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 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 BMFEA Special Agent J. Timothy Fives’ 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.”

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-fry defendants 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 an 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 Investigations Unit 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 noted Deputy District Attorney Paul Greenwood, who leads the San Diego District Attorney’s Office’s Elder Abuse Prosecution 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 then-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-fry defendants 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, Calif.
  • However, the BMFEA filed elder abuse charges only against the nurses, but not the nursing home owner, and only after The Sacramento Bee’s embarrassing September 2011 exposé on the Esco case, the widespread falsification of patient records in California nursing homes, and the case’s rejection by the BMFEA and El Dorado County district attorney.
  • 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 highly qualified expert and BMFEA Special Agent J. Timothy Fives, EMT, 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.
  • 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 BMFEA 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 in which the elder abuse victim was.

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 that 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 quality-of-care deficiencies.


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  15 Responses to “Mark Zahner, CA DOJ’s Chief Elder Abuse Prosecutor, Resigns amid Criticism”

  1.  

    Wow is all I can say to what I’ve read! I’m shocked that the state can get away with all these cases! My question is has Locatell ever been investigated? How do we as the people stand up for our rights? And what can we do on behalf of all these people that have been charged with these convictions and yet not been proven guilty? I’m still in shock at how the state is handling these charges!

    I say start a protest outside the capitol. Enough is enough!!!!!

  2.  

    PROSECUTING ELDER ABUSE… THAT’S NOT WHAT THEY DO!!!

    SAME GOES FOR THE L.A. COUNTY DISTRICT ATTORNEY’S OFFICE

    ELDER ABUSE, WHO DIDN’T I TELL?!
    http://benamarine.blogspot.com/2010/11/commitment-to-daddy.html

    •  

      Thanks for your comment and link to your interesting website and detailed elder abuse case.

      Elder Abuse Exposed.com agrees with you about the Los Angeles County District Attorney’s Office and its appalling record as an elder abuse prosecutor.

      As Elder Abuse Exposed.com said in the July 31, 2013 article above, California DOJ Special Agent J. Timothy 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.” Special Agent Fives then urged his supervisors to prosecute the wealthy, politically connected nursing home for elder abuse-neglect under Penal Code § 368.

      But as one would expect after reading Disability Rights California’s April 2010 report Victimized Twice: Abuse of Nursing Home Residents, No Criminal Accountability for Perpetrators, the Elder Abuse Section of the Los Angeles County District Attorney’s Office refused to prosecute the same video-recorded elder abuse leading to death. On behalf of Los Angeles County DA Steve Cooley, Deputy DA Gina T. Satriano, of the Elder Abuse Section, said in a March 2011 letter:

      “Because of budgetary concerns, however, the Elder Abuse Section of the District Attorney’s Office lacks original jurisdiction in such matters. In other words, we lack the ability to independently investigate cases. The proper course of action if you believe a crime has been committed is for you to refer these matters to the law enforcement agency having jurisdiction over the area where the alleged crimes occurred for investigation.”

  3.  

    This website is a goldmine of information demonstrating how elder abuse is covered up, evidence suppressed, how local police shut down state and federal investigations, and the ways law enforcement cooperates with wealthy abusers in making elder abuse complaints of financial embezzlement and real estate fraud go away.

    This is my story. Actual documents and photos shown on these pages:

    http://three-taps-for-olga-elder-abuse-usa.blogspot.com/2013/02/a-true-account-of-institutional-elder.html

    http://three-taps-for-olga-elder-abuse-usa.blogspot.com/

    Denial, Delay, Silence!!!

  4.  

    I’m happy to see that FINALLY Mark Zahner has stepped down.

    I’ve asked him to investigate why Sun Healthcare Group Inc wasn’t properly prosecuted after abuses were reported in 2003 in their Newport Beach “Sunbridge” nursing home where 5 patients died from understaffing, broken equipment, and simple neglect. Fecal impaction, gangrene, malfunctioning of two separate suction machines that killed a patient, and MRSA spread.

    The Dept. of Health issued citations for deaths, and Sun was under a 2001 injunction not to repeat the deaths they caused in 2000. Yet the DOJ-BMFEA, under Claude Vanderwold, entered into a settlement in 2005 which prevented them from prosecuting for these crimes.

    When I requested Mr. Zahner investigate why the DOJ-BMFEA did not pursue Sun for these crimes, I was ignored. Sun paid a $2.5 M fine for crimes in other facilities but not the Newport Beach one.

    Why? I’ve never gotten an answer. I therefore believe this is corruption.

  5.  

    This exposé does not shock me after spending three years seeking justice for my mom, who was exploited by a family member. Prior to finding out my mom was left penniless by the perpetrators, I spent the prior five years writing, calling, and reporting to various mandated reporters that my mom would be exploited by and was being exploited by these relatives.

    A credit card agency finally exposed what was happening and reported it to adult protective services. I was so naive thinking that APS would refer the case to law enforcement and the perpetrators would be arrested under California Penal Code 368, grand larceny, and mail and Internet fraud statutes. Heck, the Orange County Sheriff’s Department Economic Crimes Detail had NEVER heard of CPC 368.

    I read about the Financial Abuse Specialist Team (FAST) in my county. I called and spoke with the head of the team, a lawyer. She was so enthusiastic that a family member came forward because so many were reluctant to report abuse. She told me she wanted me to be “the face and voice of elder exploitation” for our county. I thought, WOW, I’m going to have the support of this agency and be able to get restitution for my mom. Funny thing, she dropped the ball and became uninterested after getting my hopes up for my mom, who was about to be evicted from her assisted living facility, a well-known chain that also dropped the ball in not reporting elder exploitation.

    This pattern of rejection and dismissive attitude continued for months on end. People with government agencies would listen to my mom’s plight and tell me they would call someone who could help me and get back to me.

    The list of agencies, including Legal Aid (so rude), recommended elder law attorneys on the Alzheimer’s list of legal referrals, law centers at local colleges, the National Center on Elder Abuse, Consumer Financial Protection Bureau, the DA in my county, the Maryland DA, (they approved taking the case because the perps lived in MD, but the DA refused it and sent it back to CA),the Consumer Affairs Bureau, FAST, Victim’s Compensation Fund, and DOJ. No one would do anything to help my mom.

    The end result for my mom has been being exploited well into the high six figures, evicted from a nice ALF, having to be hospitalized multiple times because of being moved into a not-so-nice board and care, no dementia care, a loss of her human rights, and being dismissed by apathetic and inept agencies and law enforcement.

    Elder exploitation is a crime of opportunity with no consequences for the perpetrators. Why isn’t there more outrage? Can the FAST teams tell the public how many cases they hear and refer to the DA? Kamala Harris made elder abuse and exploitation a part of her platform.

    What is going on with these agencies and law enforcement? Who is holding them accountable? All talk, no action.

    Peggy Osborn, in the Office of the California Attorney General, who is responsible for the development of the DOJ Elder and Dependent Program, talked to my colleague. She claimed to be horrified about our stories of exploitation and apathetic responses and asked for details of what we have been through. Stories were sent, and we never heard from her again. She has not responded to any of my colleague’s follow-up emails.

    Resources are not there for victims of elder exploitation. My mom was financially raped by her own son. It’s a heinous betrayal of trust, but to be victimized over and over again by the legal system is further abuse.

  6.  

    By the way, the Long Beach FAST in Southern California recently won a district attorney commendation at a recent ceremony for elevating the profile of elder abuse and elder abuse survivors in the community.

    They had a big luncheon and write-up in the Orange County Register. I can’t get an answer as to what they did to be recognized by the DA. I’m curious since my mom was never RECOGNIZED as a victim of elder financial abuse.

    And, my colleague, a mandated reporter, called APS and spoke to the head of the FAST team in OC about her suspicions her relative was exploiting her aunt. This relative had already exploited her mother-in-law, leaving her destitute. Law enforcement refused taking a report and her mother-in-law is now on public assistance at our expense. She wrote and called every agency she could, only to be dismissed.

    Two victims of elder exploitation in OC were not celebrating at that luncheon.

  7.  

    Mark Zahner is not the only state employee who intentionally blocks criminal elder abuse cases. Gary Duke, attorney, and Angelique Scott of the California Department of Consumer Affairs, also intentionally, selectively choose small-fry fiduciaries to punish, and with the help of complaint analysts Jane Valdez and Cynthia Parry, sparing the principal malefactors of systemic elder abuse, by self-dealing California licensed private fiduciaries.

  8.  

    The new guy is Joe Chavez. This guy has a history of covering up sexual abuse to further his career.

    You may know that a woman employee of the Sacramento Metro Fire District was sexually abused by other employees and that Metro hushed her up with a $550,000 quick settlement in 2007. I have some follow-up that you might be interested in.

    The case was not referred to law enforcement because that would have been detrimental to Metro. A then Sacramento County deputy district attorney named Joseph Chavez helped keep it from going to law enforcement by telling Metro there was no case and that they need not refer reports to law enforcement. Chavez did this without reading any reports. This gave Metro a fig leaf to avoid doing the right thing and having people held accountable for sexual assault. The D.A.’s office rightly condemned Chavez for his irresponsible actions. Chavez was rewarded when Metro hired him at a much higher salary than is offered at the D.A.’s office.

    Fast forward a few years, and Chavez is forced to leave Metro (misconduct). The only place he can get a job is at the California A.G. Office’s Bureau of Medi-Cal Fraud & Elder Abuse as a criminal prosecutor (his best friend Mark Zahner, chief of prosecutions, got him in).

    Two weeks ago, BMFEA named Joseph Chavez as Mark Zahner’s replacement. So this protector of abusers is now the new chief of prosecutions for the whole BMFEA. His job is to protect vulnerable seniors and disabled people, but how can he do that given his lack of morals? Chavez.

    You might want to ask the head of the criminal division about this–Dane Gillette. dane.gillette@doj.ca.gov

  9.  

    If you want to read the news story about Mr. Chavez covering up things, just Google “Metro Fire Settles Sex Case,” and you will find the 2007 news account at the firefighter news website 4-5-07.

  10.  

    I knew Mark when we were both in high school. I visited him while he was in college also. I knew his parents very well, and he knew mine. I was over at his house constantly and considered him a good, close friend. He was a good and decent person who would help anyone. I think what may be happening is “politics.” Too bad. Politics spares no one no matter how righteous they may be.

    •  

      I’m with Greg–I also knew Mark quite well in college. A genuinely caring person, highly intelligent, willing to go the extra mile. I can only imagine that there is a lot more to this story, and I would bet money that there are circumstances beyond his control that prevented Mr. Zahner from prosecuting every case mentioned above.

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