Sunday, October 26, 2003

By Gary Rotstein and Cindi Lash, Post-Gazette Staff Writers

People die and suffer injuries every day in long-term care settings, but it's rare to see anyone prosecuted for them.

In most cases, the decline of the frail elderly is unavoidable and unintentional. Juries may hesitate to punish someone for premature death of a person already known to be in the last stages of life. Even when it appears someone contributed to the demise, it's difficult to prove in court.

That's why prosecutors shy away from time-consuming cases involving institutionalized older adults, making the criminal charges brought Wednesday against the Ronald Reagan Atrium I Nursing and Rehabilitation Center for a neglectful death unusual.

"If it were easy to do, you'd see it happening more," said Allegheny County District Attorney Stephen A. Zappala Jr., who vowed nonetheless to devote more attention and resources to investigating elder neglect and abuse cases.

Zappala charged Atrium's owner, the Alzheimer's Disease Alliance of Western Pennsylvania, and the top official of both the alliance and the nursing home, Martha F. Bell, 57, of West Mifflin, in the death two years ago today of an Alzheimer's patient.

Bell and her nonprofit corporation are accused of neglect of a care-dependent person, involuntary manslaughter and other offenses related to the death of Mabel Taylor and a purported attempt to conceal its details. Her body was found in a courtyard, with the cold night temperatures contributing to her death, hours after she had been locked outside the understaffed facility in Robinson without anyone's knowledge.

The district attorney also charged an Atrium nurse, Kathleen Galati, 58, of the North Side, with criminal conspiracy, perjury and false swearing for her handling of Taylor's death and testimony about it at a coroner's inquest.

Galati was a nursing supervisor and had been promoted to director of nursing before the charges were filed. Bell and Galati have been removed from their positions and barred from the nursing home by court order now that the Pennsylvania Department of Health has turned over temporary management to Grane Healthcare of O'Hara.

Zappala said the case was his first use of a 1995 Pennsylvania statute intended to address cases in which an individual or institution harmed a helpless person in its care not only by action but by inaction. Neglect of a care-dependent person causing death or serious injury is a first-degree felony, carrying stiffer penalties than the manslaughter charge against Atrium officials.

Still, the neglect charge has been used seldom against facilities caring for Pennsylvania's old and vulnerable population. In the most recent case and perhaps the most successful, prosecutors in Bucks County won four convictions against managers and lower employees of a personal-care home.

A jury on Aug. 29 convicted an aide, Heidi Tenzer, of stomping an 83-year-old resident in her care at the Alterra Clare Bridge facility near Yardley, Bucks County. The victim, William Neff, lived in his bed with massive bruising and broken ribs for six days without receiving any special treatment before his death.

While Tenzer faces sentencing for third-degree murder, felony neglect and aggravated assault, the facility's administrator and head nurse and another aide pleaded guilty to a lesser misdemeanor charge of neglecting Neff.

David Zellis, the Bucks County first assistant district attorney, called it a challenging case that required two years of investigation, including a special grand jury to subpoena documents and compel witnesses to testify. Similarly, the Atrium charges also came just before a two-year statute of limitations expired and after an unusually extensive inquiry by Allegheny County Coroner Dr. Cyril H. Wecht.

One individual who Zellis said was culpable in Neff's death, a hospice worker who failed to recognize and treat his injuries, was acquitted by a jury of the felony neglect charge. The decision may highlight the different standards of responsibility for someone's death, regardless of the neglect law.

"It's easy for jurors to understand when somebody goes into a convenience store and sticks the night clerk up with a gun," which leads to homicide, Zellis said. "It's much more difficult for people to understand, and jurors to comprehend, that you should be accountable for what you don't do when it comes to caring for elderly people."

He noted that the statute's precise language, which also could be significant in the Atrium case, makes it a crime when a person "intentionally, knowingly or recklessly" causes bodily injury through neglect of care. Zellis focused on the hospice worker as being "reckless" in failure to deliver care, which the jury evidently did not accept.

"There's no question that the neglect of care statute is much different from other crimes that are delineated in the Pennsylvania Crimes Code," Zellis said. "Other crimes deal with specific actions that somebody takes."

The issue also may have arisen in dismissal of charges in February 2002 against officials of another Alterra Clare Bridge personal care home, in State College. Without public explanation after a three-day preliminary hearing, a district justice dismissed charges against the home's administrator and another employee accused of neglecting three residents who died with serious bedsores on their bodies.

Defense attorneys argued that family members of the deceased individuals had not wanted aggressive treatment for the bedsores, and that physicians had not deemed it necessary to transfer the residents to a nursing home capable of more intensive medical treatment.

Though disappointed by the dismissal, Centre County Assistant District Attorney Karen Arnold said the neglect law was still valuable. "There's no more debate that it has to be an act of commission rather than omission" to charge someone, she said, and the law made possible a prior conviction in Centre County of an individual who was paid to care for someone who died with severe bed sores.

Zappala noted that one reason the Atrium case was his first nursing home prosecution during six years in office is that most elder abuse occurs in someone's home, rather than in an institution.

Of the nearly 1,500 reports of neglect and abuse investigated annually by protective service workers for the Allegheny County Area Agency on Aging, 18.5 percent involved nursing homes and 5 percent concerned personal-care homes in 2001-02, said Kurt Emmerling, bureau chief of safety for the agency.

Fewer than one in five of all such reports is substantiated, he said, and a minority of those involve the type of harm that leads the agency to contact police officials for possible prosecution.

To increase the likelihood of prosecution of cases that merit it, Zappala said he might assign an assistant district attorney and a detective to assist the Area Agency on Aging in such cases. Emmerling said he welcomed increased interaction with law enforcement officials, something he credited Zappala with already prompting informally in recent weeks.

"We need to work better to learn from one another and communicate more effectively" with law enforcement officials, Emmerling said. "According to reports put out by the state, that's an area in which almost all protective services units need to improve."

But no one's sure how many cases exist that could rise to the level of criminal prosecution. The Pennsylvania Department of Health often sanctions nursing homes for care problems that lead to the injury or death of patients, and the state Department of Public Welfare does so for personal care homes.

Most such cases are ignored by prosecutors, whose standards for seeking legal punishment are different. In Atrium's case an unusual death, routinely deficient care conditions and managers who allegedly tried to cover it up combined to get authorities' attention.

It's the kind of case that could become more frequent in court locally, if other facilities fail to maintain standards.

"Nursing homes are big business, and often people are viewed as moneymaking units," Zappala said. "But our seniors are community assets, not liabilities or moneymakers. They deserve to be treated that way."

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