Mountain Democrat file, 2012

Don Esco is sworn in Aug. 2 in El Dorado Superior Court to testify about his wife Johnnie's care in a Placerville nursing home. Esco died Oct. 8, more than four years after his wife's death.

California attorney general's office to ramp up elder-abuse investigations

Published: Saturday, Nov. 3, 2012 - 11:00 pm | Page 1A
Last Modified: Tuesday, Nov. 19, 2013 - 7:36 pm

Until he died last month at age 82, Don Esco of Cameron Park had his own way of measuring the passage of time: by the years, months and days since the death of his wife, Johnnie, after a short stay at a Placerville nursing home.

It was never enough, he always said, to settle a civil lawsuit with the El Dorado Care Center in Placerville, which he blamed for his 77-year-old wife's death in March 2008. No, he said, it was never about the money.

Johnnie's death, he maintained, was a criminal matter – and the state of California agreed.

On Thursday – four years, seven months and 24 days after Johnnie Esco died – one of two nurses charged with felony elder abuse in connection with her death pleaded no contest to the charge. Rebecca LeAn Smith, 39, also agreed to cooperate with prosecutors in the ongoing criminal case against her former nursing supervisor, Donna Darlene Palmer.

While Don Esco did not live long enough to witness Thursday's development in El Dorado Superior Court, his persistence has made its mark in California.

As the Esco case moves forward – and another high-profile prosecution of nursing home staff continues in Kern County – representatives of Attorney General Kamala D. Harris told The Bee that the state will begin aggressively building more criminal cases statewide.

Harris' office is forming three specialized teams – one in Sacramento, two in Southern California – to pursue criminal charges against nursing home administrators and employees where deep, systemic problems are suspected.

"Elder abuse is a particularly tragic crime because it targets a beloved population – our aunts and uncles, our parents – at what can be a vulnerable time in their lives," said Harris in a prepared statement, referring to these crimes as "serious and often hidden."

"We know abuse of our elders is becoming more pervasive, so we must become more resolute in our protection of them."

Perils of prosecution

In California and elsewhere, criminal prosecutions of nursing home workers or their employers have been rare, with allegations of abuse or neglect frequently handled in the civil courts.

Harris' move could potentially reverse a steady decline in recent years in the state's criminal actions involving elder abuse. In the past decade, criminal elder-abuse complaints filed by California's attorney general dropped from 112 in fiscal 2002-03 to 60 in 2011-12, state figures show.

Under Harris' plan, each of the three teams will have an attorney, a nurse and an auditor – plus support from a medical person with a specialty in geriatrics. The teams will develop criminal cases of "systemic abuse" in facilities where patients' daily activities are overseen, according to Mark Zahner, chief of prosecutions for the AG's Bureau of Medi-Cal Fraud and Elder Abuse.

Zahner stressed prosecutors aren't looking for isolated incidents where a low-level employee trips up on the job.

"People make mistakes, people are human beings," he said. "We're really after the bad apples out there who are more concerned with how many boats and yachts and mansions they have rather than caring for the people who are in their facilities.

"We're out for the people who put profit ahead of the care that they're giving," he said.

But some are skeptical that the attorney general's office will deliver – particularly in prosecuting corporate owners. Lesley Ann Clement, the Sacramento attorney who sued Horizon West on behalf of the Esco family, said she was stunned the state did not go after the chain's owners.

"The question is why? Why did these things happen?" said Clement, who specializes in nursing home cases. "The answer is, there's not enough staff, and that happens at the corporate level."

When asked why Horizon West management was not criminally charged, AG spokesman Lynda Gledhill said investigators determined that the corporate owners were "very cooperative and took immediate action when the situation came to light."

Zahner and other state officials acknowledge that criminal cases will not be easy. Elder-abuse prosecutions are expensive and labor-intensive, they say. Voluminous medical records must be examined, and expert testimony gathered.

Investigators frequently find that medical records are incomplete, and death certificates are signed by the same people who are under investigation. Key witnesses often are feeble or already dead. Many defendants come well-represented legally, with a team of experienced attorneys bankrolled by a corporation.

And then there are the most fundamental questions: Can the state prove beyond a reasonable doubt that an administrator or worker intended to harm the patient? And who, out of the patient's many caregivers, should be singled out for prosecution?

"When you're in a nursing home, where you have all these different shifts and different people taking over care at different times – who did what when is one of the problems (for prosecutors,)" said Prescott Cole, senior staff attorney for the San Francisco-based California Advocates for Nursing Home Reform.

While local district attorneys also can file criminal charges in nursing home cases, most in California do not, said Cole. That leaves the task largely to the attorney general's office, which frequently is "outgunned" in court by deep corporate pockets within the nursing home industry, he said.

Avoiding death sentences

Mark Reagan, attorney for the California Association of Health Facilities, said that industry support for the attorney general's initiative "depends on how well they handle prosecutorial discretion."

With so much at stake for workers and corporate owners – an entire chain of nursing homes could be forced out of business with a single conviction – state prosecutors must sort out which cases should be handled administratively, civilly or criminally, Reagan said.

"This organization certainly believes there is no place for abuse and neglect in long-term care," he said.

However, he said, if a nursing home owner is convicted criminally of elder abuse – even if it's an isolated act – the law requires that the facility be excluded from receiving Medicare or Medicaid funding. "It's a real death sentence," he said.

In the Esco case, the attorney general contended that Palmer and Smith provided "substandard" care and failed to adequately supervise staff, contributing to Johnnie Esco's deterioration and death. Both nurses helped oversee the woman's 13 days of care at the El Dorado Care Center in Placerville, a skilled nursing facility owned at the time by Horizon West Healthcare Inc. of Rocklin. Last year, Horizon West Healthcare Inc. sold its 27 nursing homes, including the El Dorado Care Center, to a San Marcos-based chain. The Placerville facility since has been renamed.

Smith, who lives in Louisiana, told The Bee she negotiated a plea because she was raised to take responsibility for her actions. She said she believed that Johnnie Esco's care could have been better and that she is deeply sorry.

"I wish there would have been more that was done at the time," she said tearfully after court Thursday. "My heart aches."

Palmer's attorney, Patrick K. Hanly, said he was surprised by Smith's plea because there is "no evidence" to support the charges against the nurses. Hanly has portrayed the attorney general's office in court as grandstanding, filing charges only after the case was detailed in The Bee.

The AG's office reopened its criminal investigation last year after The Bee chronicled the Escos' story in a series exploring the problem of falsified records in nursing homes. The Esco family's civil lawsuit alleged that Johnnie's medical chart was sloppy, showed evidence of being altered and failed to accurately reflect her condition.

Don Esco, who enlisted in the Army Air Corps at age 15, will be buried this month alongside his beloved wife at Arlington National Cemetery. They had been married for nearly 61 years.

So concerned were prosecutors about Don Esco's failing health that he was called to testify in August to preserve his memories for the record.

He died Oct. 8 in Sacramento.

"I've got one purpose in life," he told The Bee last year, "and that's to do what I can to eliminate the pain and suffering in nursing homes and make sure the guilty parties are punished."

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Marjie Lundstrom



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