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Civil Lawsuits Necessary to Prevent Abuse and Neglect in Nursing Homes

By Craig Baillie / November 13, 2017

Part one of a five-part Star Tribune story delves into the abuse and neglect that is all too prevalent in nursing homes and assisted living facilities. “Last year alone, the Minnesota Department of Health received 25,226 allegations of neglect, physical abuse, unexplained serious injuries, and thefts in state-licensed homes for the elderly.” The enormity and severity of the problem cannot be overstated– incredible numbers of vulnerable adults are exposed to significant risk of injury and harm. Unfortunately, our current oversight and regulatory systems are either unable or unwilling to act as a bulwark to the growing crisis.

The article reveals that 97% of the allegations of abuse and neglect are never investigated. In Minnesota, we have a state-wide reporting system where individuals (known as mandated reporters) are required to report suspected abuse and neglect of vulnerable adults. Vulnerable adults and their families are also able to report, but this can be complicated for many reasons. The vulnerable adult might not be able to advocate for themselves, or the family doesn’t know that the resource exists.

The problem is that even if a report gets made, the chance that anything will come from is insignificant. As a result, there is little incentive for nursing homes and assisted living facilities to clean up their act—there is little fear of reprisal. This is especially true if the resident is unable to advocate for themselves, or if the family is unable to regularly advocate on behalf of their loved ones. In other words, if the abuse and neglect can just be swept under the rug and no one goes punished, then there is no strong incentive to make decisions to protect resident welfare.

Equally troubling is that when the facilities are investigated, the investigations are often slow and ineffective. The story quoted Nancy Fitzsimmons, a professor at Minnesota State University, Mankato, that “It’s painful to think about how many of these criminals are getting off the hook because we’re sending these cases down an administrative black hole.” The fact that a crime could be committed against a vulnerable adult, yet the case would not be successful because of an “administrative black hole” is unacceptable.

The immediate impact of this on our community is substantial.  It is our experience investigations can drag on for months and years after the statutory deadline for completing the investigation has passed. The government entity conducting the investigation will often send a stock letter informing the family that the investigation is delayed without further explanation. These families are often desperate to find out what happened to their loved one, but are then forced to wait for the government entity to get around to their case. Once the report is finally received, too often it misses critical evidence and simply fails to conduct comprehensive analysis of what happened and why it happened. Unfortunately, the article reflects that it this kind of experience with our state oversight entities is commonplace:

“Families of victims are furious. They complain that the state will not tell them what investigators have discovered about their cases. Sometimes, they say, the state does not even notify them that an investigation is underway. Some families also have found that when they report their concerns directly to the facility’s owner or other residents, their loved ones have been threatened with immediate eviction.”

The assistant health commissioner who is involved in the assisted living and nursing home oversight, stated that the “situation is no longer tenable.” The Deputy Health Commissioner, testified before lawmakers that “Our current staff is really cracking under the pressure of our current caseload.” As of right now, our state regulatory entities are unable to handle the abuse and neglect crisis. As we know, the numbers of elderly adults needed assistance in either nursing homes or assisted living families continues to rise. As these numbers rise, at the current trajectory the instances of abuse and neglect will continue to increase dramatically as well.

The criminal justice system is not currently equipped to handle these cases. Amy Sweasy, an excellent Hennepin County prosecutor, stated that “We are putting up with a level of criminality in senior facilities that would be unthinkable in any other setting.” It isn’t that the criminal justice system does not want to prosecute these cases; rather, the cases never make it into the criminal justice system: “Some of these cases would be a prosecutor’s layup, but they never get to our desk.” Equally problematic is that the criminal justice system has higher levels of proof that make it difficult to conduct investigations into the conduct of the owners and operators of nursing homes. That means that the criminal justice system focuses on the criminal actors themselves rather than on the decision-making that allowed those criminal actors access to vulnerable adults in the first place.

One such story that demonstrates the total breakdown of our enforcement system involves a vulnerable adult by the e name of Jean Krause. According to the article,

“Jean Krause was found curled up in a fetal position, naked below her waist, in her bed at the Heritage House assisted-living complex in Pequot Lakes, court records show. Just a few feet away, a male caregiver, David DeLong, who was 59, stood sweating and breathing heavily, with his jeans and underwear at his knees, according to an eyewitness account described in a criminal complaint. When a female aide spotted DeLong, he began awkwardly trying to pull up his pants and underwear, the witness recalled. Supervisors at Heritage House waited nearly two hours after the assault before calling police, and only did so after sending DeLong home for the night, according to the police and a criminal complaint.”

The subsequent incompetence and lack of concern is striking. After the rape was discovered, the family was not notified. It was not until after Ms. Krause had passed away from unrelated causes that her son was made aware that she was a victim of sexual assault.

Under Minnesota law; however, the family could not hire a lawyer to investigate what happened to their mother because of a law called the “abatement law.” In Minnesota, when someone dies, their family is unable to bring a lawsuit regarding injuries that they suffered unless those injuries caused their death. Minnesota along with Kansas are the only two states in the country that have such a law. The situation involving Ms. Krause highlights how this law promotes injustice, especially in the case of vulnerable adults. If someone rapes an elderly adult and then that adult dies from unrelated reasons, there can be no civil lawsuit. Certainly, a criminal lawsuit can proceed that might placed the wrongdoer in jail. However, the family has no ability to investigate to see whether the operators of the nursing home could have prevented the conduct yet failed to implement proper policies, training, or background checks. In other words, the wrongdoer themselves might be able to be punished, but the facility that possibly allowed the sexual assault to occur may go completely unpunished simply because the victim passed away.

Civil lawsuits allow families and society as a hole to hold assisted living facilities and nursing homes accountable when their actions cause injuries to their residents. In a civil lawsuit, parties are able to subpoena documents and to ask questions under oath These civil lawsuits are litigated in open court and the record can be public. This means that civil lawsuits can be effective tools to hold facilities accountable and to deter future conduct.

The problem of course is that our current law permits conduct to go unpunished if the victim passes away before the lawsuit can be completed. The effects of this are particularly pernicious in the vulnerable adult context as the victims are often elderly. In this context, the abatement law runs contrary to the public policy of Minnesota, which is to “protect adults who, because of physical or mental disability or dependency, on institutional services, are particularly vulnerable to maltreatment.” The legislature needs to act and repeal this barrier to bringing justice to vulnerable adults who have been abused, neglected, and sexually assaulted in nursing homes and assisted living facilities.

The Kosieradzki Smith Law Firm represents victims and families who suffer from abuse and neglect in assisted living facilities and nursing homes. Every day we fight for vulnerable adults who have been injured. We are members of a national group dedicated to bringing justice for vulnerable adults and their families. Our attorneys recently presented at a full-day national seminar regarding failure to care litigation. If you or a loved one has suffered from abuse or neglect at a nursing home or in an assisted living facility, please call us for a free consultation to see whether we can fight for you: 763-746-7800. We all need to continue speaking up against the continued maltreatment of our most vulnerable members of society.