New York Nursing Home Abuse Lawyer Blog

In a case quite similar to the abuse case discussed earlier on this blog at Loudenville Nursing Home, a maintenance worker at Riverdale Nursing Home has been arrested and charged with sexual assault of an elderly nursing home resident. The worker, in this case a janitor, was allegedly caught in the act of assaulting an eighty-one year old woman at the facility. The resident suffers from advanced Alzheimer's Disease, and has been unable to provide a formal complaint. Several months ago the woman displayed suspicious injuries including vaginal bleeding that, in retrospect, are consistent with sexual assault. Due to her advanced dementia, however, the possible cause of these injuries was not known until the janitor was caught in the act.

A major difference between the assaults at Riverdale and Loudenville is that at Riverdale, according to the report on cbs.com, the janitor had passed a criminal background check prior to his hiring. The maintenance worker at Loudenville, on the other hand, was a convicted sex offender. The due diligence performed by Riverdale in the hiring process does nothing to alleviate the heinousness of this crime, or the pain felt by the resident and her family. Nor does it relieve the nursing home of its duty to protect the health, well-being, and dignity of its residents. According to the report, there are no security cameras in the area in which the attack occurred. Additionally, it is unclear from the report what steps were taken by the nursing home to investigate the vaginal trauma displayed by the resident several months ago. The criminal case against the janitor is ongoing. It remains to be seen what civil claims, if any, are filed against the facility.

Details of the investigation can be found at newyork.cbslocal.com.

The administrator of Loudonville Nursing Home in upstate New York has been fired as a result of a sexual abuse charge levied against a maintenance worker at the home. Investigators claim that the worker sexually assaulted a 91 year old woman while in her room. The maintenance worker faces felony sexual abuse charges, and the administrator, Melissa Brown, was relieved of her position last weekend.

Aside from the obvious crime that was alleged here against the maintenance worker, there are also potential nursing home violations stemming from this incident. According to the report on hudsonvalley.ynn.com, the worker was a convicted rapist. A facility "must develop and implement written policies and procedures that prohibit mistreatment...and abuse of residents." 42 CFR 483.13(c). Employing a convicted sex offender would seem to stand in contravention of this policy mandated by regulation. Additionally, a facility must provide necessary care to attain the highest practicable well-being of the resident. Allowing an individual on staff who has been convicted of a sex crime opens the door for potential abuse, thus threatening the physical, mental, and psycho-social well-being of the nursing home's residents. Unfortunately, should the allegations in this case prove to be true, this threat became a reality for one resident at Loudonville.

Elderly nursing home residents are among the most vulnerable members of our society. When a family entrusts the care of such an individual to a nursing home, this trust is accompanied with an expectation that the facility will do everything within its power to provide this care in the safest possible manner. Failing to properly check the background of all employees, not merely those employees charged with overseeing resident life, is a violation of this trust. Following federal guidelines, and a facility performing its own due diligence, can circumvent situations such as the one described above.

The story of the allegations at Loudonville can be found here and here.

If you or a loved one has been abused at the hands nursing home staff member, please contact the Nursing Home Abuse Attorneys at Gallivan & Gallivan.

Bay Park Center for Nursing and Rehabilitation was recently fined $18,000 by the Department of Health. The fine stems from a certification survey in February of 2011, in which the facility was graded deficient in 23 various areas. Among these areas were failure to keep the facility free of accident hazards and failure to keep residents free from abuse.

A facility must ensure that it is as free of accident hazards as possible, and it must monitor residents and provide assistance devices to prevent accidents. In one instance documented in the DOH report, a resident who was known to be an elopement risk was able to elope from the facility. He returned the next day with his family. Despite knowing that he was at risk to leave the home if able, the facility did not implement wander guards for the resident, at his request. The resident was on 30-minute visual check rounds. During part of the period that he was missing, CNA's had signed that they had seen him, thus falsifying records after the elopement.

A resident has the right to be free from abuse, including verbal, sexual, physical, and mental. The report illustrates a scenario in which a male resident entered a female's room on several occasions and exposed himself to her. The victim described being scared for weeks following the incidents. Although the exposer did not make physical contact with the female resident, the RN Risk Manager at the facility did state that she understood that abuse could be verbal or mental in addition to physical.

As mentioned, there are twenty-three violations described in the DOH report. It is unclear for which particular deficiencies the fines were levied. A full copy of the Health Department's report can be read here.

If you or a loved one has been a victim of abuse in a nursing home, contact the attorneys at Gallivan & Gallivan to protect your rights.

In a decision released yesterday, a New York appellate panel ruled that the lower court should have suppressed a nursing home worker's apology to police after sexually assaulting a Queens nursing home resident. According to the panel, the apology occurred in the midst of an interrogation, and thus the officer conducting the interview should have Mirandized the defendant, informing him of his right not to speak and to request an attorney.

The defendant was convicted in 2009 of a first-degree criminal sex act and endangering the welfare of an incompetent person after sexually assaulting a 64 year old female nursing home resident at Cliffside Nursing Home in Queens. The conviction carries up to a 10 year prison sentence.

At a hearing before the initial trial, the court denied defense counsel's motion to supress the apology, finding that it was not the product of an interrogation. The appellate panel concluded that the court ruled incorrectly; in fact, the defendant could have reasonably inferred that the interview had begun based upon the detective's words an actions in the interview room. Statements by the detective during the interview about eyewitnesses to the sexual assault led the defendant to apologize.

Despite the panel's ruling that the apology should have been suppressed, the conviction of the defendant was upheld. The panel ruled it "harmless error," stating that given the overwhelming evidence against the defendant, specifically the witness to the assault, he would have been convicted notwithstanding the absence of the apology. Counsel for the defense plans to appeal this aspect of the ruling, citing a violation of his client's constitutional rights.

Website Resource: New York Law Journal, People v. Tavares-Nunez, Andrew Keshner, October 4, 2011

Today, June 15, 2011, is the sixth annual World Elder Abuse Awareness Day. It falls in the middle of World Elder Abuse Awareness Week, which commenced on Monday. While it is important to specify a day or week in which to give attention to the cycle of abuse that many elderly in society face, it is also imperative to remember that this abuse happens every day. We must remain vigilant as a society in an attempt to eliminate elder abuse.

As this blog has chronicled in the past, elder abuse occurs in many forms: physical abuse, emotional abuse, sexual abuse, and financial abuse, to name several. Unfortunately, often this abuse does not occur at the hands of an unkown hospital or nursing home aide, but rather at the hands of family members.

World Elder Abuse Awareness Day helps to raise the public profile of the growing ubiquity of elder abuse. Events such as this, as well as celebrities such as Mickey Rooney speaking about their own experiences, will hopefully bring an awareness of the perils that our elderly citizens face. If you suspect that someone you love has been a victim of elder abuse, please contact the proper authorities as soon as possible. With the proper level of awareness, perhaps someday we can bring an end to elder abuse in its many forms.

A nursing home aide was recently convicted of sexually abusing an 61-year old stroke victim at Amsterdam Nursing Home on Manhattan's Upper West Side. The aide was convicted of sex abuse, endangering the welfare of a vulnerable elderly person, and endangering the welfare of a physically disabled person. The aide was caught in the sexual act while under assignment to care for the victim.

It is not very often that this section of the blog crosses over from civil to criminal offenses. In a case as egregious as the one linked below, it is a necessity. According to Section 260.25 of the New York Penal Code, "[A] person is guilty of endangering the welfare of an incompetent or physically disabled person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect." A vulnerable elderly person is defined as: "a person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by demonstrable physical, mental or emotional dysfunction to the extent that the person is incapable of adequately providing for his or her own health or personal care." Certainly, a 61 year old incapacitated stroke victim falls under this definition of vulnerable elderly person.

In many instances, injuries suffered by elderly or incapacitated residents of nursing homes are the result of negligence on the part of the staff, their assigned caregivers. Occasionally, however, the offense crosses the line and becomes not only a civil offense, but a criminal offense as well. In such cases, criminal charges must be pursued, above and beyond a civil case, in order for justice to truly be served. That said, the facility can be held civilly responsible for the acts of the employee that committed the offense if that employee had a history of being physical or sexually aggressive and/or if the facility failed to conduct a proper background check before hiring the individual. Sexual abuse is also prohibited by the state (NYCCR) and federal (CFR) rules and regulations we often reference here on the New York Nursing Home Abuse Lawyer Blog.

Northgate Health Care Facility has fired two nurse's aides following a disturbing incident involving the employees and two elderly, mentally impaired residents of the facility. According to a NYS Department of Health report, the employees placed the two residents in the same bed together and told them that they were married, hoping to elicit a physical response from the residents. Security cameras captured the events. One of the residents is diagnosed with mild mental retardation, while the other is both blind and suffers from dementia. The workers are no longer legally allowed to work in similar nursing home environments.

As common sense and decency would dictate, if all allegations are true, the two employees involved in this incident are guilty of any number of violations of public health codes, as well as state and federal regulations. The residents' quality of life, personal rights, and safe living environment have all been severely compromised. Additionally, although the Department of Health has conceded that Northgate acted properly in reporting the incident, the home's hiring practices certainly must be questioned. Furthermore, reporting the incident and handling it in a timely fashion does not excuse the home from the violations. It is the responsibility of the facility to prohibit mistreatment and abuse of residents. In this case, it would appear that the facility failed in this charge.

Website Resource: Wheatfield Nursing Home Workers Fired Over Reported Abuse, Pete Gallivan, March 31, 2011

A staff member at Idylwood Care Center in Sunnyvale, CA has been charged with elder abuse and battery after allegedly grabbing the genitalia of a male resident in January. Two additional staff members have been charged as well with failing to report the abuse. The staff members were arrested after another worker relayed the reported abuse to authorities.

In addition to the criminal charges that the three men face, if these allegations are true, then they clearly violated numerous sections of Title 42 of the Code of Federal Regulations. To name several:

• 483.13(b): The resident has the right to be free from verbal, sexual, physical, and mental abuse

• 483.13(c)(1)(i): The facility must [n]ot use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion

• 483.15(a) The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality.

Here at the New York Nursing Home Abuse Lawyer Blog, we more commonly discuss injuries that are relatively easy to recognize, such as pressure sores or bruises. Unfortunately, sexual abuse is a prevalent and underreported event in nursing homes, and what is even more concerning, is that indications of mental and sexual abuse are often very subtle. Through the diligence of workers such as the whistle blower in Idylwood, as well as family members monitoring their elder loved ones' well-being, elder abuse of all types can be exposed and stopped.

If you feel that a loved one has been a victim of abuse in any form, please contact Gallivan and Gallivan today to discuss your legal remedies.

In a recent nursing home abuse lawsuit, a California jury awarded a dementia resident $12.5 million after being attacked by a cook who worked at the facility. In 2007, Sophie Schwartz, a 92 year-old dementia patient, was asleep in her bed at Oakdale Heights of Santa Clarita when she was awakened by a man on top of her.

The man, Jose Eduard Vazquez, attempted to rape her until he was thwarted by another employee. Schwartz, through a guardian ad litem, sued Vazquez and the facility's owner, operator and administrator. Schwartz's attorneys claimed that Vazquez attacked Schwartz after consuming liquor on the job. He reportedly gained entry to Schwartz's room with a master key provided to all employees. The defense argued that the incident was not related to hiring practices or lack of supervision at the facility.

Reference:

VerdictSearch; Schwartz v. Oakdale Heights Management Corp.; September 9, 2010.

Robert Gunderson, a Certified Nurse Aide at Northwoods Rehabiliation Center, a nursing home in Troy, New York, was recently sentenced after being charging with sexually abusing an elderly resident. Mr. Gunderson reportedly fondled the breasts and vagina of a 78 year old woman who was physically helpless.

In March 2010, Mr. Gunderson was sentenced to 10 year's probation and ordered to register as a level 2 Sex Offender. In addition, an Order of Protection was issued. Level 2 Sex Offenders must register with the Division of Criminal Justice Services, and reregister every three years by filing a new form, appear at the law enforcement agency where he lives, as well as report changes in address and employment.

Website Resource:

Long-Term-Care Community Coalition Report, 3/16/10-6/15/10.

A lawsuit has been filed against a nursing home in Aurora, Ill., and one of its residents, Sylvester Graves, after he allegedly sexually assaulted a female resident. According to the lawsuit, Graves beat the woman severely and sexually assaulted her in his room at Fox River Pavilion nursing home.

The plaintiffs claim that Graves has been arrested multiple times and suffers from bipolar disorder and other mental issues. They further assert that the nursing home should have monitored him more closely or restricted his access to other residents. Finally, they contend that the home failed to provide additional security or failed to provide therapies that may have treated his anti-social behavior.

The injury resident, a dementia sufferer, appeared at the nurse's station after she was assaulted "in a bruised, battered and bloodied condition," according to the suit.

Graves is being held in Kane County Jail awaiting trial on eight counts of aggravated criminal sexual assault, criminal sexual assault and battery. He has served prison stints for burglary and retail theft convictions in Cook County, according to state records.

Website Resource:

Lawsuit over alleged nursing home sex assault, Chicago Tribune, Clifford Ward, March 30, 2010.

Carolyn M. Wheeler, the former Recreational Leader at Somers Manor Nursing Home in New York, has been charged with endangering the welfare of a vulnerable elderly person in the second degree, a felony, as well as sexual abuse in the second degree, a misdemeanor. Ms. Wheeler allegedly touched the genitalia of a 60 year-old male resident who suffers from a mental defect. The incident was witnessed and reported by another Somers Manor employee.

As a result of the incident, Ms. Wheeler's position as Recreational Leader has been terminated. Authorities are investigating whether any other residents were abused by Ms. Wheeler.

The attorneys at Gallivan & Gallivan represent victims of sexual and/or physical abuse at the hands of nursing home employees. If you or a loved one has been victimized in a nursing home or assisted living facility, please contact us.

Website Resources:

Nursing home worker accused of sexually abusing patient, 60, Journal News, Hoa Nguyen, August 25, 2009.

A licensed nurse employed by Shore Winds Nursing Home in Rochester, New York has been arrested and charged with rape in the second degree (felony) and endangering the welfare of an incompetent (misdemeanor). The nurse, Kipper Allen Stevens, allegedly had sexual intercourse with a disabled resident. She was arraigned last week. Bail was set at $1500.

This story underscores the importance of proper screening of potential nursing home employees, as well as the importance of implementing timely and proper evaluations of current nursing home employees.

The attorneys at Gallivan & Gallivan are dedicated to protecting nursing home residents against elder abuse.

Website Resources:

Rochester nursing home employee charged with rape, RocNow, Victoria Freele, July 17, 2009.

A Chicago, Illinois nursing home allegedly attempted to cover-up the rape of a 68 year-old resident. The nursing home claimed that the resident had engaged in consensual sexual intercourse. A lawsuit has been filed on behalf of the resident alleging that the facility failed to properly monitor the resident and failed to separate younger mentally ill residents from elderly residents.

The nursing home was fined $44,000 by the state and federal governments for violations related to the incident. The lawsuit seeks at least $50,000 in damages. It was filed Monday in Cook County Circuit Court on behalf of a resident identified only as Jane Doe to protect her privacy.

Website Resources:

Family sues nursing home in alleged sex attack, Chicago Tribune, Carla K. Johnson, May 12, 2009.

A certified nurse's aide at the upstate New York nursing home, Northwoods Rehabilitation Center, has been arrested for sexually abusing an elderly resident of the facility from December 15, 2007 - January 7, 2009. Robert Gundersen faces the following charges:

1) sexual abuse in the first degree, a class D felony;
2) forcible touching, a class A misdemeanor; and
3) sexual abuse in the third degree, a class B misdemeanor.

According to the indictment, Mr. Gundersen touched the breasts and vagina of a 78 year-old resident who was unable to defend herself from the attack. If convicted, Mr. Gundersen faces 2 1/3 - 7 years of incarceration.

Unbelievably, Mr. Gundersen also faces charges stemming from a prior incident when he was employed as a certified nurse's aide at another upstate New York nursing home, Eddy Ford Nursing Home. He is charged with sexual abuse in the third degree for allegedly french-kissing a nursing home resident who suffered from multiple sclerosis and was wheelchair-bound.

The charges against Mr. Gunderson are the result of Attorney General Cuomo's ongoing investigation into nursing home neglect and abuse.

Website Resources:

Troy Aide Indicted For Nursing Home Sexual Abuse, North Country Gazette, May 5, 2009