A major passion of my Oregon personal injury practice involves helping senior citizens who have been the victims of abuse and their families hold perpetrators accountable. Civil lawsuits can hit the perpetrator and the nursing home or long-term care facility in the wallet, and sometimes that's a more effective method of punishment.
On Sunday, March 27, 2011, Portland's main newspaper, the Oregonian, ran an expose on sex abuse of senior citizens in Oregon's nursing homes and long-term care facilities.
Although most of the information was no surprise to a Portland, Oregon elder abuse attorney, the widespread nature of the problem of abuse of senior citizens is something that many Oregonians don't fully appreciate. There are, of course, many different types of abuse against the elderly, including nursing home neglect, or neglect by a caretaker or family member, all the way to intentional criminal conduct. Obviously senior citizen sex abuse cases fall on the criminal end of that spectrum.
The Oregonian study focused on sex abuse in Portland and Oregon nursing homes and long-term care facilities. The study was equal parts fascinating and tragic.
Oregon nursing home injuries are much more common than many of us would like to believe. There is something particularly tragic about the most vulnerable among us suffering such indignity and pain in the final years of their lives, all at the hands of the very professionals we entrust with their care.
There are 2,300 nursing homes, assisted-living centers or other long-term care facilities in Oregon. For a variety of reasons, most elder abuse and nursing home neglect cases go unreported. Part of the reason for this is precisely why the elderly are such vulnerable targets in the first place. Oftentimes, nobody is listening. When they are, dementia or medication can undermine a senior citizen abuse victim's credibility.
When elder abuse is reported, according to the Oregonian, the state of Oregon rarely penalizes the facility itself when one of its workers commits abuse of a senior citizen. This is consistent with my experience and research in representing elder abuse clients in Oregon courts.
The Oregonian reports that since 2005, DHS workers, those in charge of monitoring nursing homes and related facilities, report that 350 cases of sexual abuse have been investigated. Those range from "unwanted kissing" all the way to rape.
DHS workers believe that four out of five of the reported cases of elder abuse in Salem, Portland and throughout Oregon are unprovable. Claims that are promptly reported and independently corroborated carry with them the greatest chance at a prosecution, either criminally or in a civil lawsuit for money damages.
In sex abuse investigations, Oregon officials found that 73 of the 350 calls regarding alleged sex abuse of a senior citizen were substantiated. Although the abuse was never reported in 28 cases, 14 cases resulted in criminal prosecutions and eight in convictions since 2005.
On balance, the Oregonian report revealed "a public safety net riddled with holes." It starts at the facility level where many long-term care facilities simply fail to take the appropriate safety measures to protect their residents.
DHS investigation and enforcement could also be better and stronger.
Lack of Information on Sex Abuse of Seniors Inhibits Honest Dialogue and Analysis.
Public information on sex abuse crimes against senior citizens can be difficult to find, masking the magnitude of the elder abuse problems facing Oregon. The Oregonian focused on the availability of information problem:
"Left to the online database as their only source, consumers researching facilities for an elderly relative would have no way of learning about a report of a caregiver at Spring Pointe Memory Care in Grants Pass in May 2009. He caused a mentally-compromised resident to have an erection after disrespectfully "rubbing and twirling" the man's genitals as he wiped them clean, according to a co-worker. The co-worker didn't think it was funny and reported it to other staff. The facility fired the offending worker, but for a different reason.
Similar research wouldn't turn up a report about a resident who rubbed his penis against another resident at Anna Snider's adult-care home in Northeast Portland in June 2010. He had a pattern of aggression that had been escalating for weeks, and that included exposing himself in the doorway of the victim's room. But the facility didn't call police or adult-protective-service workers for four days after the molestation, according to DHS's report."
The recently displaced director of DHS, Bruce Goldberg, took steps to make the agency more transparent, by releasing scores of previously confidential reports. Even then, the Oregonian had to rely on documents produced in civil Oregon elder abuse lawsuits to get the complete files related to many elder sex abuse cases. This does not just mean the Oregonian had to work harder to file its report. It means that understaffed and underfunded state agencies couldn't conduct a comprehensive review of the problem of nursing home neglect or intentional mistreatment (including sex abuse) in Oregon even if they had the time or money.
The Oregonian story continued:
"Goldberg said the issue deserves more attention and that more needs to be done to protect vulnerable adults from the people who prey on them: caregivers, strangers and even other able-bodied residents.
"We all want to believe it doesn't happen," Goldberg said. "We don't think that seniors are sexual beings. And we're learning that that's not true. And that there are some terrible people that do some terrible things."
Underreporting Inhibits Real Analysis
The problem of underreporting of elder abuse is not specific to Portland, Oregon. It is a nationwide problem.
In Oregon, workers in long-term care facilities and nursing homes are mandatory reporters. That means that when a worker in one of these facilities witnesses an instance of abusive conduct or inappropriate touching of a senior, they are required by law to report it to the appropriate state agency. Law enforcement is required to respond with the results of their investigation on a relatively short timeline.
But, despite this law, facilities are still not reporting elder abuse in Oregon's nursing homes. Why? According to the study, employees think (or hope?) the residents are "imagining things," and they don't think that anyone would do that to a senior (they hope not?). Other long-term care facility employees might fear being viewed negatively by co-workers if the claims turn out to be unfounded or a misunderstanding.
At the care or retirement facility, instances of elderly abuse open the facility up to fines, lawsuits and, in some cases, loss of the ability to operate at all. Even a facility that dutifully reports an incident and corrects it can have its bottom line devastated by negative publicity from the report.
The result? Often it takes an independent observer to happen upon the abuse of an elderly resident for any report to happen. With visitors only on site a fraction of the day, the result is gross underreporting.
The Oregonian quoted Arthur Shorr, a Los Angeles based consultant who specializes in sexual violence against residents of nursing homes and hospitals. "It's clear that it's a pandemic," the article quoted Shorr as saying. "It's happening at a level and volume that's almost impossible to believe."
DHS found that elderly residents of care facilities were easy victims because overworked staff and caregivers at the nursing home and long-term care facilities were not as diligent as they could have been. From the article:
"At the Hearthside Rehab Nursing Facility in Coos Bay in 2005, an employee was able to continue fondling residents for three months after a frightened 84-year-old resident complained to staff. The resident said that the employee had dropped his pants and crawled into bed with one resident, molested female residents who couldn't speak and said he planned to "do" another resident. Staff dismissed her complaints as delusional, but a DHS investigator who was eventually called determined that at least five residents had been molested.
The DHS fined Hearthside Rehab $450.
An unknown man walked into the Alderwood Assisted Living facility in Central Point in 2009 and was caught in an unspecified sexual act with a mentally impaired resident.
The resident had met the man, who reportedly had just gotten out of jail, at a nearby video poker lounge. The man showed up at Alderwood later, and a nurse directed him to the resident's room. After the man was interrupted, he left. Staff were unable to give police any leads because they didn't know his name.
The DHS found that Alderwood could not have prevented the incident so it levied no fine.
For nearly a year, a resident tormented other residents in the Alzheimer's unit at Gateway Adult Residential Care in Springfield. Although the man was forgetful at times, he did not have the disease.
In 2007 and 2008, the facility directed staff to watch the man more closely. The center put an alarm on the man's door and changed his medication, but he repeatedly slipped out of his room and groped other residents or forced them to fondle him. Staff also believed he smeared shaving cream under the incontinence garments of another resident, after they found a canister of the light-green shaving gel cream in his room.
The man was finally moved to another long-term care facility in September 2008. The DHS found that Gateway had "failed to protect residents from inappropriate contact" but did not fine the facility.
Springfield police say they have no record of anyone reporting the sexual assaults, and the man was never charged."
Police find many barriers to investigations, including less than forthcoming witnesses and capacity issues when, for example, the abuse is resident on resident. Again, the testimony of victims or witnesses with mental issues can be viewed suspect and not hold up in court.
Spotting Would Be Abusers of the Elderly On the Front End
It is common throughout the country to require criminal background checks on caregivers in long-term care facilities. In Oregon, the required check is only statewide if the applicant says they have only lived in Oregon. If they admit they've lived elsewhere, then an FBI fingerprint check is required.
The loophole is subtle but substantial. If a caregiver commits a crime against an elderly victim in another state, sex abuse or some other crime, he or she could merely lie and say they've only ever lived in Oregon. The crime wouldn't be picked up and the caregiver would slip into the system as a direct caregiver to a loved one in a retirement home or some other live-in care facility.
Oregon is one of 40 states that have this loophole, and quite frankly, it is inexcusable.
Only the Oregon legislature can change the law to require national background checks. James Toews, the recently displaced director of the DHS senior and people with disabilities division, said the long-term care industry would likely oppose required national background checks because they take six to eight weeks.
Washington has recently passed a law requiring caregivers at assisted living facilities and adult family homes to undergo a national criminal background check. Nursing homes are exempt from the law.
DHS does not track all prior reports of sexual abuse of an elder. DHS itself takes action against certified nursing assistants only, not nurses, janitors, kitchen workers or other staff members. Resident-on-resident assaults are not tracked at all. This means that a staff member of a long-term care facility or a resident with a history of abusing elderly residents is not necessarily flagged in the system.
While criminal charges against an elderly resident may be inappropriate for a variety of reasons, if they are not charged, they can fly under the radar and commit another assault. From the article:
"Wes Bledsoe, who co-founded the Oklahoma-based nonprofit A Perfect Cause, said once a resident sexually assaults another resident, the offender is often shuffled to a new care center, where the pattern starts again.
"But if the guy never gets charged, he's under the radar and he can go to the next facility and no one's going to know he's a problem," said Bledsoe, whose organization seeks to "end needless suffering" and to protect long-term care residents from "corporate greed and negligence."
The article highlighted the tragic case of Betty Swearingen, a 72-year-old care resident who suffered from Hunington's disease and couldn't get out of bed without assistance. Swearingen was a resident at River Valley Senior Living Community in Tualatin.
On September 29, 2008, she was found in the corner of her room in a pool of blood, with rug burns on her knees, face and hip. Her leg was broken and she was developing bruises all over her body.
She was unable to tell the story of her abuse, and the long-term care facility blamed a fall out of bed. It wasn't until her condition badly deteriorated 36 hours later that the caregivers called 9-1-1.
While receiving treatment at Legacy Meridian Park Medical Center, it was determined Swearingen had internal bruising. The investigation turned to elder sex abuse.
Tualatin detectives were slow to react, though, losing key evidence at the facility itself, which had, by that time, been thoroughly scrubbed.
Although Swearingen's daughter found a blood-soaked t-shirt in her mother's room, the police failed to submit it crime lab testing. The sex abuse case was closed when no DNA evidence was found.
The elderly woman died two months after the assault in her nursing home. Her surviving children are convinced that her case was never pursued because she was old and easy to ignore. For the facility, it was "cover up and move on * * * get someone else in that bed," said Gary Swearingen.
A DHS investigator closed the case and didn't fine River Valley for any substantive charge, instead limiting it to a $750 fine for a defective call light.
Swearingen's wrongful death elder abuse case was settled out of court on confidential terms and River Valley simply hired new management and moved on.
Changes on the Horizon?
The Oregonian has had success in effecting change through shining light on difficult topics. Abuse of the developmentally disabled was addressed by the state legislature in 2007 after an Oregonian expose.
DHS' new director plans to work to close some of the loopholes that have allowed Oregon elder abuse to persist. Included in those changes will be a new internal policy requiring notification of long-term facilities about the histories of all long term applicants including prior charges of abuse.
While these steps are a goo d start, a true commitment to ending physical and sexual abuse of Oregon's senior citizen takes a community-wide commitment and probably a long time to solve.
Sarah Nelson, P.C., is an elder abuse lawyer and nursing home neglect attorney in Portland, Oregon. She handles abuse of senior citizen cases throughout Oregon, including Portland and the surrounding areas, Salem, Eugene, Corvallis, Multnomah County, Clackamas County, Washington County, Gresham, Beaverton, Milwaukie, Wilsonville, Troutdale, Hillsboro, Tigard, Tualatin, Yamhill County, McMinnville, Newberg, Sandy, Welches, Central Oregon, Bend, Madras, Redmond, Sisters, Prineville, and the Oregon Coast, including Astoria, Seaside, Lincoln City, Tillamook and Newberg. Sarah offers free in-home or in-hospital visits, same or next day, for the victims of elder abuse or senior citizen neglect and their families.