Bogus “Crackdown” on Elder Abuse by California Attorney General Kamala Harris

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 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 Attorney General Kamala Harris to start crackdown on criminal elder abuse in nursing homes, reports Sacramento Bee

The Sacramento Bee reported this month that Attorney General Kamala Harris’ Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) would start aggressively investigating nursing home elder abuse and building criminal cases against administrators and employees in profit-obsessed nursing homes plagued by systemic elder abuse.

The November 3, 2012 “California Attorney General’s Office to Ramp Up Elder-Abuse Investigations,” by Sacramento Bee investigative reporter Marjie Lundstrom, followed up a series of related articles by Ms. Lundstrom in The Bee, including the following:

1. September 18, 2011 “Falsified Patient Records Are Untold Story of California Nursing Home Care”
2. September 19, 2011 “Woman’s Death Raises Questions about Nursing Home Medical Records”
3. March 16, 2012 “Nurses Face Felony Charges in Death of Cameron Park Man’s Wife”
4. April 11, 2012 “Two Nurses Plead Not Guilty in Placerville Elder Abuse Case”
5. November 2, 2012 “Nurse Enters Plea in Elder Abuse Case, Says ‘My Heart Aches’”

Sacramento Bee exposed widespread falsification of nursing home patient records and California attorney general’s failure to prosecute 2008 nursing home death case

In the September 2011 two-part exposé above, Ms. Lundstrom uncovered the widespread falsification of patient records in California nursing homes and the BMFEA’s and California Department of Public Health’s (CDPH) lack of enforcement of California statutes (Penal Code § 471.5, Health and Safety Code § 1424(f)) prohibiting falsified records. Ms. Lundstrom’s exposé also detailed 81-year-old Don Esco’s four-year crusade to try to influence law enforcement agencies, including the BMFEA and El Dorado County district attorney, to criminally prosecute Placerville, California, nursing home El Dorado Care Center. Licensed nurses at El Dorado Care Center, Esco maintained, neglected and caused the premature and painful death of his late wife, Johnnie Esco.

In the March and April 2012 articles on the Esco case, Ms. Lundstrom reported that BMFEA, whose chief of prosecutions is Mark Zahner, had reopened BMFEA’s closed, four-year-old criminal investigation of Johnnie Esco’s death and belatedly filed felony charges against two licensed nurses, Donna Darlene Palmer (CA RN #470050) and Rebecca LeAn Smith (CA LVN #229418). But BMFEA filed no charges against Rocklin, California-based Horizon West Healthcare Inc., which controlled El Dorado Care Center and 26 other nursing homes before selling all of its nursing homes, but not its assisted living facilities, last year to San Marcos, California-based Plum Healthcare Group LLC. The March and April 2012 articles noted that BMFEA had revived the 2008 Esco case only after Ms. Lundstrom’s embarrassing September 2011 exposé on the case and BMFEA’s initial decision not to prosecute Horizon West Healthcare or any El Dorado Care Center employees.

U.S. Department of Justice and Sacramento County Superior Court jury were much more aggressive against Horizon West Healthcare than BMFEA

Although the California attorney general’s office decided not to hold Horizon West Healthcare responsible for Johnnie Esco’s death and alleged falsification of Esco’s patient records, the U.S. Attorney’s Office for the Northern District of California in San Francisco was far more aggressive against Horizon West Healthcare in a Medicare fraud case. According to the U.S. Department of Justice, Horizon West Inc. and its wholly owned subsidiary, Horizon West Healthcare Inc., agreed in 2006 to pay $14.7 million to settle allegations that the companies had violated the False Claims Act by filing false Medicare claims. “The government alleged that the companies falsely inflated the number of nursing hours spent on Medicare patients when reporting their costs to Medicare from 1991 to 1998,” the U.S. Department of Justice said in a September 26, 2006 press release.

A Sacramento County Superior Court jury and judge were also far more tough on Horizon West Healthcare than BMFEA in another nursing home abuse and wrongful death case. In May 2010, a unanimous Sacramento County Superior Court jury hit Auburn, California, nursing home Colonial Healthcare and its parent company, Horizon West Healthcare, with $29.1 million in damages after finding that the nursing home and Horizon West were guilty of elder abuse and “malicious, oppressive, or fraudulent” conduct in the 2005 death of 79-year-old Frances Tanner. Then, in July 2010, Sacramento County Superior Court Judge Roland Candee emphatically denied Horizon West Healthcare’s motion for a new trial and a reduction in punitive damages, explaining that “overwhelming” and “devastatingly powerful” evidence in the May 2010 trial fully justified the jury’s May 2010 verdict and $28 million punitive damage award. (See Sacramento Bee reporter Cynthia Hubert’s May 13, 2010 “Jury Finds Auburn Nursing Home Committed Elder Abuse in Death” and July 14, 2010 “$29 Million Verdict Upheld against Rocklin Nursing Home Firm.”)

Elder Abuse Exposed.com to respond to Sacramento Bee’s report that California attorney general will increase prosecutions of nursing home abuse cases

Many statements in Ms. Lundstrom’s “California Attorney General’s Office to Ramp Up Elder-Abuse Investigations,” in the November 3, 2012 Sacramento Bee, deserve a response. As a result, Elder Abuse Exposed.com will respond to these statements in a series of articles on its blog. In the first article in the series, Elder Abuse Exposed.com today is responding to the following statement in Ms. Lundstrom’s November 3, 2012 article:

Johnnie’s death, he [Johnnie Esco’s widower, Don Esco,] maintained, was a criminal matter — and the state of California agreed [emphasis added].

Mark Zahner, chief elder abuse prosecutor for California attorney general, rejected 2008 nursing home death case before Sacramento Bee exposed case in 2011

The statement that Attorney General Harris’ BMFEA agreed that Johnnie Esco’s death was a criminal matter is offensive to Johnnie and Don Esco, who were victimized, first by Johnnie Esco’s death, and then by BMFEA’s four-year failure to hold any of the perpetrators accountable for their crimes. Elder Abuse Exposed.com would like to clarify and expand on this statement in Ms. Lundstrom’s November 3, 2012 article.

Long before Ms. Lundstrom publicly embarrassed BMFEA and CDPH’s Licensing and Certification Program in her September 2011 two-part exposé, BMFEA’s chief of prosecutions, Mark Zahner, failed to prosecute anyone responsible for Johnnie Esco’s 2008 death. In other words, although Attorney General Harris admitted this year that El Dorado Care Center nurses “Palmer and Smith had been in supervisory positions and had ‘clearly neglected’ their patient, causing her to suffer ‘unjustifiable pain,’” Mark Zahner rejected the Esco case in 2008, allowing the perpetrators to evade justice. Mr. Zahner went easy on the Horizon West Healthcare-controlled El Dorado Care Center and employees in 2008, when there was no intense public scrutiny of his mishandling of Johnnie Esco’s elder abuse and death.

California attorney general’s failure to file criminal charges in 2008 nursing home death case double victimized decedent and tormented widower 

By failing to file criminal charges until March 2012, i.e., only after Ms. Lundstrom’s September 2011 exposé in The Bee, Attorney General Harris’ BMFEA double victimized Johnnie Esco and her soon-to-die widower, Don Esco. BMFEA’s four-year failure to hold anyone accountable for the painful death of his wife of 60 years tormented Don Esco so much that, according to The Bee, he dedicated the last four years of his life to his all-consuming, frustrating “four-year quest . . . to find justice for his late wife.” During his search for justice, Esco “made hundreds of phone calls and personal visits to local, state and federal authorities to get someone held accountable.” Don Esco, who sadly passed away last month, told The Bee last year that his “one purpose in life” was “to do what I can to eliminate the pain and suffering in nursing homes and make sure the guilty parties are punished.” When BMFEA eventually filed felony charges in March 2012 against the two licensed nurses, a very relieved Don Esco told The Bee, “It’s been a quest of mine. It’s all I can think about.”

California attorney general’s office agreed to prosecute 2008 nursing home death case only after Sacramento Bee revealed disturbing truth about AG’s office in 2011

“The state of California agreed” that “Johnnie’s death . . . was a criminal matter” and filed felony charges against the two licensed nurses, but not the wealthy Horizon West Healthcare Inc., only after The Bee publicly embarrassed BMFEA. In other words, Attorney General Harris suddenly experienced her “conversion of conscience,” telling The Bee in March 2012 that “the death of Johnnie Esco is a tragedy that should not have happened” only after the Bee’s September 2011 exposé revealed a disturbing truth about BMFEA. It is a truth that the unsuspecting public would never know by reading BMFEA’s false public relations claims on its website about working “aggressively to protect patients in nursing homes and other long-term care facilities from abuse or neglect.”

Disability Rights California exposed disturbing truth about California attorney general’s Bureau of Medi-Cal Fraud and Elder Abuse in 2010

A 2010 investigation into California law enforcement’s failed and biased elder abuse response and criminal justice system by the federally mandated protection and advocacy agency for the State of California, Disability Rights California (DRC), exposed the disturbing truth about BMFEA. According to DRC’s April 2010 report Victimized Twice: Abuse of Nursing Home Residents, No Criminal Accountability for Perpetrators, BMFEA has a history of failing to prosecute nursing home abuse cases, even when there is overwhelming evidence of criminal conduct. For instance, DRC’s report said that out of 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 investigated all nine cases referred to them, but did not prosecute any of the cases.”

In case BMFEA tries to explain its failure to prosecute by saying that the nine nursing abuse cases it investigated did not rise to the level of criminal elder or dependent adult abuse, which BMFEA often tells double-victimized complainants, DRC’s Victimized Twice has a response. BMFEA rejected all nine cases, 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.”

Elder Abuse Exposed.com to continue response to Sacramento Bee report on California attorney general’s “crackdown” on nursing home abuse

In the coming days and weeks, Elder Abuse Exposed.com will resume its series of articles responding to additional statements in Ms. Lundstrom’s “California Attorney General’s Office to Ramp Up Elder-Abuse Investigations,” in the November 3, 2012 Sacramento Bee. Elder Abuse Exposed.com’s upcoming articles will show that Attorney General Kamala Harris’ new campaign to “crack down” on nursing home elder abuse, heralded by the November 3, 2012 Sacramento Bee, is nothing but a sham and publicity stunt that will not likely lead to Harris’ first-ever criminal prosecution and conviction of a wealthy, politically connected nursing home.

What do you think? Do you think that Attorney General Kamala Harris’ new campaign to crack down on nursing home elder abuse is real or a sham? Please share your thoughts below this article!

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