Nursing Home Nightmare: Sexual Abuse in Care Facilities

Written By Christopher Dolan and Cristina Garcia

This week’s question comes from David K. in San Francisco:

My older sister, Lucy, is forty-one years old and suffers from physical and mental impairments. She uses a wheelchair and has trouble communicating. A couple of years ago, my parents and I made the tough decision to place her in a nursing home, as my parents could no longer care for her. We researched the facility, and it appeared to be a well-equipped facility for my sister’s needs. I would visit my sister on the weekends. I observed a male resident who seemed friendly and often engaged in conversation with Lucy during my visits. At the time, I thought it was nice for Lucy to have a friend in the facility. However, this all changed during one of my visits when I found this male resident in her room. They were by themselves, and he was lying in bed with her, which I found completely inappropriate. I immediately asked him to leave. I then spoke to one of the nurses and notified her of the incident. She apologized and assured me it wouldn’t happen again. Lucy’s nurse also stated that this male resident had exhibited inappropriate sexual behavior to other female residents. When I heard this, I was utterly disgusted. I have seen news stories about health providers who have sexually or physically abused residents. However, I am not sure what to do in this situation as the person abusing Lucy was another resident. Can the facility be held accountable for the other resident’s behavior, as they previously knew about his sexual tendencies?

David, it is terrible that you and your family had to go through this experience. As you mentioned, many news stories discuss physical or sexual abuse by health providers. However, it is the nursing home’s responsibility to ensure the safety of all residents, not only from health providers but also from other residents. 

Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), codified as Welfare and Institutions Code Section 15600 et sec. A “Dependent Adult” is defined as “any person between the ages of 18 and 64 who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or who physical or mental abilities have diminished because of age.” Cal. Welf. & Inst. Code § 15610.23(a). The law further defines “dependent adult” to include any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility. Cal. Welf. & Inst. Code § 15610.23(b). 

Based on the information you have provided, it appears that Lucy is a dependent adult who relied on the nursing home staff to protect her from harm. Under Cal. Welf. & Inst. Code Section 15610.57, “Neglect” includes the “failure to protect from health and safety hazards.”

Furthermore, “Abuse” is defined as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.”  The nursing facility was negligent in the care of Lucy because they failed to protect her from health and safety hazards. Despite having knowledge that the male resident had sexual tendencies, the facility did not properly monitor the resident and allowed him to continue interacting with female residents without supervision. In addition, the facility’s conduct would fall under “abuse” as defined by the EADACPA because a reasonable person in a like position would not allow the male resident to interact with Lucy without supervision and should not have allowed them to be alone in her room. Once the facility became aware of the sexual tendencies of the male resident, they should have taken precautionary measures, including monitoring his behavior and whereabouts to ensure he was not left alone with other residents he could harm.

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What you need to know about hate crimes in the Bay Area

Written By: Christopher B. Dolan and Mari Bandoma Callado

This week’s question comes from Lin S. in Oakland who asks: 

Q: It’s been devastating to hear about the increase in anti-Asian hate incidents and violence against the Asian American and Pacific Islander community, including attacks on the elderly and the recent mass shooting in Atlanta. It does not seem like many of these incidents are being charged as a “hate crime.”  What is a “hate crime” under the law? What should I do if I am a victim of a hate crime or if I witness a hate crime? 

A: Thank you for this important concern shared by many. Dolan Law Firm is appalled by the increasing displays of violence and hate targeting Asian Americans and Pacific Islanders (AAPI), including the shootings in Atlanta which left eight dead, six of which were AAPI women, as well as the vicious attacks on elderly AAPI in the SF Bay Area over the last few weeks. Our deepest sympathies go out to the friends and family of the victims of these horrifying acts of violence. See our statement here.

Unfortunately, discrimination and violence against AAPI communities are not new. The United States has a long and well-documented history of discrimination and hate-based incidents against AAPI communities. Since the arrival of Chinese immigrants as laborers in the 1850’s, Asian Americans have always been the subject of racist violence. For example, the Chinese Exclusion Act in 1882 was enacted as Asian immigrants were viewed as threats, Japanese Americans were incarcerated during World War II, Chinese Americans faced persecution during the Cold War McCarthyism of the 1950s, and Asian Muslims and Sikh communities were targeted post-911. At the beginning of the COVID-19 pandemic, elected officials referred to the Coronavirus as the “Chinese virus” or “Kung-Flu,” fueling anti-Asian sentiment. While hate crimes decreased generally, anti-Asian hate incidents surged by nearly 150% in 2020. The targets of violence have disproportionately been older people and women, according to a report published by Stop AAPI Hate.

To answer your question, California Penal Code section 422.55 defines a “hate crime” as “a criminal act committed because of the victim’s actual or perceived disability, gender, nationality, race, or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics.” Hate incidents, on the other hand, involve actions or behavior motivated by hate, but are legally protected by the First Amendment right to freedom of expression. This includes hate speech, which is often intended to intimidate or incite violence or discrimination against certain groups. The U.S. Constitution allows hate speech as long as it does not interfere with the civil rights of others. However, race-based or anti-LGBTQ slurs can be evidence of a hate crime when used during a commission of an underlying crime, such as threats to a person or property.

California Penal Code section 422.6 makes it a stand-alone crime to willfully interfere, by force or threat of violence, with someone else’s civil rights, or knowingly damage or destroy their property because of that person’s actual or perceived protected characteristic(s). There are also related civil remedies under the Ralph Act and Bane Act that can be enforced through the civil courts, as well as other available causes of action, theories of liability, and potential defendants to address the heinous attacks on individuals or groups based on race, national origin, and ethnic background in civil court.

If you are a victim or witness of a hate crime, first and foremost, dial 911 if it is an emergency and get yourself to safety. Second, get medical help if necessary. Third, document any and all details of the crime as soon as you can after the incident. It will be important to note the physical appearance of the perpetrator (e.g., age, height, weight, clothes, gender, race, and other distinguishing characteristics) and to make notes about what happened, including the exact words that were said (e.g., any racial or anti-LGBTQ slurs). If it is safe to do so, save potential evidence by taking photos and by getting the names, phone numbers, and emails of other victims and witnesses. 

To report the incident, contact your local police department and/or the FBI to file a report. Make sure to get the responding officer’s name and badge number, as well as the case number. We also recommend urging the police officer to check the hate/bias-motivation or hate crime/incident box on the police report. It is also important to report the incident to organizations like Stop AAPI Hate, which has been tracking and responding to incidents of hate, violence, harassment, discrimination, etc. against AAPIs since March 2020.

If you feel you have been a victim of a hate crime, contact an attorney immediately to better understand your rights. Dolan Law Firm is committed to representing victims of hate crimes, harassment, and discrimination that are members of the AAPI community and other marginalized communities statewide. 

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Dolan Law Firm Statement Against Rise of Violent Hate Crimes Aimed at the AAPI Communities

Dolan Law Firm is appalled by the increasing displays of violence and hate targeting Asian Americans and Pacific Islanders (AAPI), including the shootings in Atlanta which left eight dead, six of which were AAPI women, as well as the vicious attacks on elderly AAPI in the SF Bay Area over the last few weeks. Our deepest sympathies go out to the friends and family of the victims of these horrifying acts of violence.

Hate crime incidents against the AAPI community- particularly towards women – have increased to 150% in 2020 according to a report by Stop AAPI Hate, yet rarely are the perpetrators held accountable or charged appropriately for their crimes.
Dolan Law Firm’s Senior Associate Attorney and Diversity, Equity, & Inclusion Director Mari Bandoma Callado said,

“I am outraged because the media has failed to call hate crimes for what they are and institutions rationalize racism and misogyny as a ‘bad day’. Discrimination and violence against the AAPI community are not new but the racialization of COVID-19 has inflamed anti-AAPI sentiments and contributed to a surge in anti-Asian hate crimes.” 

Dolan Law Firm is committed to fighting against hatred and injustice. Mari is the President of the Filipino Bar Association of Northern California and serves as a co-chair of the Asian American Bar Association of the Greater Bay Area’s Civil Rights Committee (AABA-Bay). Chris Dolan, Mari Bandoma Callado and other Dolan Law Firm attorneys have represented victims of discrimination and hate-based incidents and are actively pursuing a case against Nike for discriminating against members of the AAPI community.

The Dolan Law Firm urges our statewide community to self-educate and support our AAPI brothers and sisters. The following is a list of resources we have compiled and distributed to our own staff in an effort to recommit ourselves to the fight for racial justice every single day: 

Education and Action Resources:

If you feel you have been a victim of a hate crime, contact an attorney immediately to better understand your rights. Dolan Law Firm is committed to representing victims of hate crimes, harassment and discrimination that are members of the AAPI community and other marginalized communities statewide. 

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Protecting the Elderly from Abuse and Neglect

This week’s question comes from Tara W. from Tiburon, who asks:

Q: “My grandmother is in a nursing home. She is bedbound and can’t use her legs. From my visits and conversations with her, it is clear that the nursing home personnel doesn’t get her out of bed or change her adult diaper nearly regularly enough and, as a result, she has developed two large sores on her bottom. We know it is not the best place for her, but it is all our family can afford. What rights does she have and what can I do to hold them responsible for not caring for my Grandma?

A: Dear Tara, As our society ages as a group, more and more facilities are springing up in the elder care business. Unfortunately, while many are caring and reputable, many others are poor quality and understaffed, with some resembling nothing more than warehouses for the elderly. In the context the Bay Area’s skyrocketing costs of living, many families like yours have no choice but to settle for substandard services.

California’s Elder and Dependent Adult Civil Protection Act (“EADACPA”), codified in the California Welfare and Institutions Code, reflects the state legislature’s recognition that persons age 65 and older are a disadvantaged class worthy of heightened protection from the state because their age-related physical and mental limitations diminish their ability protect their rights on their own. Cal. Welf. & Inst. Code § 15600. EADACPA protections also apply to other disabled adults between 18 and 64 whose physical or developmental disabilities restrict their ability to carry out normal activities and are therefore either dependent on others for their basic and daily needs or admitted as inpatients to 24-hour health facilities. Cal. Welf. & Inst. Code § 15610.23(a)-(b). The law seeks to protect elders and dependents from abuse and neglect by providing an array of public and private legal remedies, including recovery for a victim’s pain and suffering, attorney’s fees, litigation costs, and punitive damages. Cal. Welf. & Inst. Code § 15657. By imposing the specter of these enhanced remedies in litigation, the law seeks to simultaneously disincentivize unlawful behavior and encourage private enforcement of the laws.

EADACPA defines neglect of an elder/dependent as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise,” which may take the form of failure to assist in personal hygiene, provide food, clothing, shelter, or medical care, or protect from health and safety hazards. Cal. Welf. & Inst. Code § 15610.57. Abuse is defined as deprivation by a care custodian of goods and services necessary to avoid physical harm or mental suffering, or as well as financial abuse, physical abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering. Cal. Welf. & Inst. Code § 15610.07.

To recover EADCPA’s enhanced remedies, including punitive damages, a plaintiff must prove by clear and convincing evidence not only that the defendant is liable for physical abuse, neglect, or financial abuse as defined by the act, but also that they are guilty of recklessness, oppression, fraud, or malice in the commission of that abuse. Beyond a purely negligent absence of care, recklessness involves a deliberate disregard of the high degree of probability that an injury will occur, rising to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it. Oppression, fraud, and malice further require intentional, willful, or conscious wrongdoing of a despicable or injurious nature. Cal. Welf. & Inst. Code § 15657.

Tara, from what you report, your grandmother’s situation sounds like it could qualify as neglect under EADCPA. Your family’s first step should be to file an administrative complaint. The allows any person or organization, not only victims and family members, to file a complaint about a nursing home with the Licensing and Certification Division of the California Department of Public Health (DPH). The DPH’s San Francisco office is located at 150 North Hill Drive Suite 22, Brisbane, CA 94005. Their phone number is (415) 330-6353.

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Federal Agency Seeks To Stop Nursing Homes From Stripping Seniors Of Right To Jury Trial

elder abuse christopher dolan arbitration clauses CMS

This week I want to discuss important federal regulatory changes that will affect millions of elderly dependent adults who are residing in nursing homes.  Many of these adults, or their children, have unwittingly signed away their constitutional rights to resolution of their grievances by a civil jury selected from their communities instead agreeing to binding arbitration: a process which favors businesses over consumers.

Last month, the Centers for Medicare and Medicaid Services (CMS) issued new rules prohibiting nursing homes, which receive federals funds through Medicare or Medicaid, from requiring patients to agree to arbitrate any legal claims against the nursing home at any time before a dispute arises or as a condition of admission.  CMS is a federal agency within the U.S. Department of Health and Human Services.

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Elder Abuse Suit Filed After Senior Found Dead At Nursing Home

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San Mateo County, California, Courthouse

Failure To Assist Resident Use Bathroom Resulted In Fall And Death Lawsuit Charges

San Mateo, CA (September 30, 2016) – On behalf of the family of Calvin Bennett, age 85, attorneys Chris Dolan and Aimee Kirby of the Dolan Law Firm filed earlier this year an elder abuse and wrongful death lawsuit against a San Mateo County assisted living facility and its owner Karin Lastimosa. Bennett died at Elle’s Care Home located in Broadmoor Village on May 30, 2015.

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What Questions To Ask & What To Watch Out For In Selecting A Nursing Home

Jared S. from San Francisco asks, “My mother’s health is declining. My siblings and I don’t have the bandwidth to provide her the care we need ourselves.  We’ve started to look at nursing homes.  Any advice on selecting a nursing home? What should we know and/or watch out for?” 

Jared, selecting a nursing home can be a difficult and emotionally taxing process.  First and foremost, you need to be sure that the medical needs of your mother are being met. You should consult with your mother’s physicians to determine the level of assistance that she may need. 

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What Can I Do About The Neglect And Abuse My Elderly Father Experienced?

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Today’s question comes from Barbara M. in Marin who asks, “My father was in a skilled nursing facility for the elderly in Marin County. He was 82, had trouble walking, and was basically confined to his bed or a wheel chair (the chair was not used frequently). Dad had some dementia and had bowel and bladder problems so he was also in an adult undergarment. There were times I would come in and find him in bed, soaked in urine and/or feces. The nurses said that they were understaffed and they were doing their best. Dad developed severe ulcers on his bottom that became infected and he died. I feel so bad and angry that they treated him this way. What can I do about it?”

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Can I Sue A Nursing Home For Neglect And Deficient Care?

Elder Abuse & Neglect Injury Attorneys fight for rights of seniors and their families.

This week’s question comes from Linda in the North Bay.  She asks, “Chris, last fall, my brother and I helped our mother enter a nursing care facility. It was a nightmare. The food was so poor she became malnourished and didn’t drink enough water. Mom stayed in bed for most of the day and developed painful skin lesions. We removed her from the facility, but they refused to take any responsibility. Instead, they claimed we were being ‘overly sensitive.’ Can my mom sue the facility for the deficient care?”

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What are the rules on camera use in nursing homes?

Overmedication is a form of elder abuse

 

If you have to make the difficult decision to place your elderly loved one in a California nursing home, you may be concerned about the level of safety and care your family member will receive while there. One way you may wish to ensure that he or she is treated properly is by placing a camera in his or her private rooms. New changes to the guidelines governing the use of cameras in these facilities may finally give you and other families in similar circumstances around the state the chance to do so.

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