SUFFERING IN SILENCE: HAWAI'I'S ELDERLY VICTIMS
Elderly abuse, neglect difficult to prosecute
| • | Few laws protect elderly |
| • | Previous story: Abuse of elderly called state's 'hidden epidemic' |
By Mike Gordon
Advertiser Staff Writer
She had a large extended family — five siblings, a son, a daughter, four grandchildren and one great-grandchild — but the last days of her life were spent in humiliating isolation, trapped on the floor of her apartment because no one could help her get up. Not even her daughter, who lived next door.
Richard Ambo • The Honolulu Advertiser
Her death at 84 offered authorities a glimpse of a problem that she could not speak to in life: A crisis of care among the elderly that some Hawai'i officials suspect is more widespread than they can actually prove.
University of Hawai'i Elder Law Program Director James Pietsch and his research assistant, law student Scott Suzuki, roam the law library stacks at the William S. Richardson School of Law at the University of Hawai'i-Manoa campus. Pietsch is concerned about a lack of specific state laws to protect the elderly.
It also challenged accepted notions of legal responsibility and reminded prosecutors just how difficult it is to take someone to court for elder neglect.
In addition, it highlighted the fact that no state laws exist that are specifically related to elder abuse.
Honolulu Prosecutor Peter Carlisle said he was livid when he first learned the details of the case he could not bring to trial. Even though this was "a grotesque way to die," no laws had been broken, he said.
The Waipahu-born woman lived alone in her small, one-bedroom apartment, which was adjacent to her daughter's apartment in a Honolulu high-rise. She was able to get around the place on her own.
But she fell sometime in early April 1999. For three weeks, she was forced to drag herself on her elbows to move from room to room. There were paths worn in the carpet where she had been.
Susan Siu, now chief investigator for the Honolulu medical examiner, could not believe what she found after police called her to the scene.
"The stench of fecal matter and vomit and urine was overwhelming," she recalled.
The woman's emaciated and dehydrated body was crusted with her own waste, Siu said. There were large decubitus ulcers, or pressure sores, on her back and buttocks that revealed bone. Sores like this are common in neglect cases and indicate that the person has not been moved.
Her telephone was out of reach but the woman's daughter had left her a roll of toilet paper, a jar of peanuts and a plastic bag with Oreo cookies.
The cobweb-wrapped refrigerator contained a few frozen TV dinners, Siu said. It was spring, but a small plastic Christmas tree still sat in the living room.
"The daughter told me she couldn't carry her because she was too heavy," Siu said. "She had two really filthy, dirty pillows under her head."
The daughter also told Siu that her mother did not want to see a doctor. The daughter chose to respect that wish.
The only reason the medical examiner was called was because the woman had not seen a doctor in two years, said Dr. Kanthi von Guenthner, chief medical examiner for Honolulu.
"How could any human being see this woman and leave her this way?" von Guenthner said. "Where is the justice for this woman?"
An autopsy found the woman had died from septicemia — an infection from the pressure sores that poisons the blood, von Guenthner said.
"It was a painful way to die," von Guenthner said. "It's not a quick death. It was a horrible death."
Police responded to the scene, but did not forward a report to the prosecutor because there was no obvious crime, Carlisle said. The medical examiner gave him the case.
Advertiser library photo • Jan. 30, 2003
Carlisle couldn't find a law that had been broken.
"There has to be a legal duty," Honolulu Prosecutor Peter Carlisle said. "It's not a moral or common sense or humanitarian duty or a familial duty."
"There were certainly a bunch of facts to make someone believe a crime had been committed but there wasn't a law to support that," he said.
No assault charges could be brought because no one had harmed the woman, he said. She had fallen on her own and told her daughter not to get anyone involved.
"The daughter came in and tried to give her water once a day," Carlisle said. "But she didn't do anything to alleviate the squalor this woman was living in and the obvious medical and health problems she had."
To charge the daughter with a crime based on neglect, or omission, the prosecutor needed to show there was a clear legal duty to take care of her mother, he said.
The daughter was not a legal guardian for her mother, was not a paid healthcare provider required by law to report the problem and she had not directly caused her mother to fall, Carlisle said.
"There has to be a legal duty," Carlisle said. "It's not a moral or common sense or humanitarian duty or a familial duty."
It is a gap in the law, he said. People in a position to help are not required to help, he said.
"These are things we need to answer with our aging population," Carlisle said. "This will say a lot about what our attitudes are toward the elderly and what is a crime and what is not."
Law professor James Pietsch, director of the University of Hawai'i Elder Law Program, said there are no specific state laws that address elder abuse in Hawai'i. Assault statutes have been used when the abuse is obvious, and longer prison terms can be imposed when a victim is 60 or older.
Care homes are regulated by state laws that provide some measure of protection, he said.
"But if an individual is at home and not being cared for by a care-home operator there should be a provision that would make it just as easy to go after that individual," Pietsch said. "Why should a death not be taken seriously because a person is vulnerable or old? If an individual died from a punch to the head you would go after that individual."
By law, care-home operators do come under greater scrutiny, but until recently, some crimes against elderly residents not only were going unpunished, they were not even being considered for prosecution.
In the summer of 1999, the state attorney general's Medicaid division, which reviews complaints about adult residential care homes, expanded its review of potential cases.
The division arranged for the state's Adult Protective Services program to forward more of the complaints it receives, even those in which abuse is not confirmed, said Michael Parrish, a deputy attorney general.
The broader look doubled what the office reviewed, Parrish said. In 1998, the attorney general received 125 cases. By the end of 2002, his office had received more than 1,000 cases to review for possible prosecution, Parrish said.
But there is no accounting of how many cases resulted in charges or prosecution. Parrish said too many cases, even those from two and three years ago, are still under review.
Generally, about 90 percent of cases never go further than the initial, cursory investigation, he said. The other 10 percent receive "a full-blown investigation" and only a fraction of those — 10 percent, he said — "have been prosecuted in some way, shape or form."
"The overwhelming majority don't pan out," he said. "But the point is, someone needs to look at them to make sure if there is something there."
During that same three-year period, the attorney general prosecuted care-home operators connected to the deaths of four elderly residents. Because there was a death, prosecution was obvious, but that doesn't mean the current system is perfect, Parrish said.
Frequently, a problem will surface only when "someone suffers a grave injury or death," Parrish said. In two of the four deaths recently prosecuted, Parrish learned about them by reading the newspaper.
The death of Mildred Nomura in September 1999, is a telling example, he said. Nomura, an 80-year-old resident of a Waipahu care home run by Vicky Gasilos, was beaten with a cane by fellow resident Wallace Curtis, 52. Nomura died a day later at The Queen's Medical Center.
"This is one of those cases that falls through the cracks," Parrish said. "The victim is already dead, so there is no imminent harm. APS goes in and says OK, everyone is OK and they don't have jurisdiction. That is the end of it from their perspective so they won't follow up with us. We could have missed it."
Gasilos admitted to licensing officials at the state Department of Health that she had left her residents unattended. She voluntarily shut down her care home and pleaded no contest in circuit court to the misdemeanor charge of endangering the welfare of an incompetent person.
The judge granted Gasilos' request for a deferred acceptance of no contest, however. If she stayed out of legal trouble for a year, the charges against her would be dismissed. In April 2001, having complied with the terms of the court, that's what happened.
In "the overwhelming majority" of care-home operator cases, the endangerment misdemeanor is the strongest charge Parrish can bring against a care-home operator, even if a resident has died, he said.
Two care-home deaths — one in August 2000 and the other in January 2001 — generated misdemeanor charges against the operator. Both homes were shut down by health officials. Glorita Gilo, the operator of one of the homes, pleaded no contest and received a deferred acceptance of the plea. A final decision on whether charges against her will be dismissed is set for Friday.
Unless someone actually hit another resident — which could prompt an assault charge — prosecutors have to prove there was a failure to do something, such as take someone to a hospital or ensure individuals were properly supervised.
"But there are a few cases in which we would like to see some other alternatives in terms of punishment available to us, basically to deter future conduct — to make people think twice," Parrish said.
A bill approved by the 2001 Legislature, but vetoed by then-Gov. Ben Cayetano, would have created a Class C felony for crimes in which a care-home operator knew that harm could come to a resident, he said. It would be different than reckless behavior, which would remain a misdemeanor. A Class C felony is punishable by up to five years in prison, or probation, and a $10,000 fine. The current misdemeanor charge is punishable by up to one year in prison and a $2,000 fine.
"We think it's definitely a step in the right direction," Parrish said.
Linda Chun, for 20 years the assistant program administrator in the Social Services Division of the Department of Human Services, writes rules and procedures that govern the Adult Protective Services program.
A lot of cases may look like criminal cases when they aren't, she said.
"Abuse in itself is not a crime unless you can tie it to assault and battery or fraud," Chun said.
Similarly, family relationships also can be misleading when it comes to care and the law, she said.
"There is no law requiring that adult children have to take care of their parents," Chun said. "That's the sticky area."
Chun said the community has benefited from this beefed-up review process, but stressed that Adult Protective Services should not be considered a law enforcement agency. When the agency's social workers suspect a crime has occurred, they will inform police even if they have not yet confirmed that there was abuse, she said. And by law, they only accept cases in which abuse may occur again.
"We are not out to necessarily prosecute," Chun said. "We leave that up to law enforcement. We are trying to help the victim."
This is especially true when the agency investigates complaints about family members having problems taking care of elderly family members, which falls outside the jurisdiction of the Medicaid division, Chun said.
"We are investigating people who tried their best, who somehow did not have the vocation or training and because of the lack of it there was some kind of injury or there wasn't good care," Chun said.
"We may confirm abuse but we are not saying you are a bad person. Maybe you just got in over your head."
Reach Mike Gordon at mgordon@honoluluadvertiser.com or 525-8012.
