Ms. Moore has handled cases involving physical and sexual assault of an elder in a care facility. Shocking as it may seem, these kinds of abuses do happen behind closed doors. And when an elder is confused, demented and frail, often times their abuse goes undetected or, worse yet, a report of abuse is ignored because management assumes the elder's complaint is not credible. When this happens, the abuser is free to continue the abuse. This is why in most cases of physical abuse, liability of the elder care facility depends on whether the misconduct was reported and how management responded to the report.

Physical abuse includes the unreasonable and improper use of physical or chemical restraints. Physical restraints include tying someone to a bed or belting them in a wheel chair unnecessarily so that their freedom in unreasonably and unnecessarily restricted. Chemical restraints include the use of medications to control behavior, without medical cause. For more information about the improper use of Chemical Restraints, see section on Psychotropic medication.

Physical abuse also includes the prolonged or continual deprivation of food or water. Elders are dependent on their caregivers to meet their basic needs and that often includes feeding assistance and access to adequate fluid. Placing a water pitcher on the bedside of someone who is a stroke victim or recently post-operative from a broken shoulder is useless. As is, placing a tray of food in front of someone so demented they do not know what to do with the food. Facility staff needs to assess and observe residents to ensure they are taking in enough food and fluids and, if not, promptly report to a physician and family so that appropriate steps can be taken.

Physical abuse also includes assault, batter, and sexual crimes. Anything that purposefully causes the resident injury or pain constitutes physical abuse, such as striking, slapping, hitting, pushing, yanking, or pulling. Physical abuse in an elder facility can take the form of unnecessarily rough handling while care is being provided. For example, yanking on arms and legs during a diaper change, pulling a resident's hair, slapping or punching of a resident. These acts are typically accompanied by threats to the resident that if they report, they will be put out on the streets or some other retaliation will occur.

The physical effects of this abuse are heinous enough but it also leaves an emotional scar. It is the ultimate abuse of power for a caregiver to intimidate any resident under his or her care. Yet physical abuse sends the message the caregiver is in control and vulnerable elder has no choice but be subjected to the abuse in order to get their needs met (i.e. a diaper change).

Issues of abuse usually make headlines. Consider the following:

• On March 1, 2010, southern California jury awarded a 12,500,000 verdict was awarded to the family of a 92 year old woman who was the victim of an attempted rape by a member of the facility's kitchen staff. The award included substantial punitive damages.


• On December 11, 2009, a Ventura County jury awarded $7,750,000 verdict to a resident of a Fillmore convalescent facility who was slapped, pulled by her hair, and had her neck, fingers and wrists violently twisted and pulled during what was supposed to be the provision of basic care. When complaints to management were essentially ignored, the family caught the abuse on tape.

Read more:
http://www.vcstar.com/news/2009/dec/11/775-million-awarded-in-abuse-case/#ixzz14YzHL2ff

• In April 2010, Cesar Ulloa was criminally convicted of torture and elder abuse of 4 elders in an upscale retirement home in Calabasas, California. He was sentenced to life in prison on the torture chage and an additional 6 years for elder abuse.


• In March 2010, a San Francisco nursing home resident was killed when a certified nursing assistant pinched her nose and smothered her with a pillow. A housekeeper observed and reported the incident.

  Read More:
  http://www.canhr.org/newsroom/AA_citations/summaries/CitSum220007568.html

Still, prosecutions of elder abuse cases are rare, and actually declining. According to an August 2010 news report, both civil and criminal elder abuse prosecutions fell about one third under the current attorney general's reign. See http://californiawatch.org/prosecutions-elder-abuse-cases-decline-under-jerry-brown-013.

The report also sheds light on flaws in our regulatory system of oversight, including bribes and lack of resources to properly investigate and prosecute. The reality is that private civil enforcement through lawsuits is the first and best line of defense against abuse.

If you suspect that someone you know at a nursing home is the victim of abuse, chances are other residents are also being treated poorly and the victim needs a voice. The Law Offices of Jody C. Moore, APC can take action. Please call and we will listen to your concerns and provide information about your rights and your options.