State law has huge gap in punishing elder neglect

Star Tribune (Minneapolis, MN)

August 14, 2011 Sunday

Headline: Violated: abuse of the aged and vulnerable in minnesota // State law has huge gap in punishing elder neglect // Minnesota treats neglect of an adult as a misdemeanor, frustrating prosecutors.

SECTION: NEWS; Pg. 1A

LENGTH: 2114 words

BYLINE: BRAD SCHRADE and LORA PABST; STAFF WRITERS, STAR TRIBUNE

By the time police found her in a cold, darkened bedroom, Marlene Christofferson was barely alive.

Officers were suspicious, noting that entering the house was "hardly a relief" from the 20-degree weather outside. She was wearing pajamas and lying under a thin blanket on a makeshift bed. Her body temperature was dangerously low.

According to her oldest son, Christofferson was very sick and getting worse. Bloomington police later asked why her sons hadn't sought medical help sooner. David Christofferson said he was tired of seeing his mother suffer, police records show. He also remarked that somebody can kill a cat when it's dying but not one's mother. "Maybe she'll go this time," he told police in January 2007.

Christofferson got his wish. His mother died hours later. Investigators believe she died from her two oldest sons' neglect, but prosecutors had no felony statute to apply and sent the case to misdemeanor court. David Christofferson pleaded guilty to neglect, paid a $50 fine and got a year of probation.

Prosecutors say the case highlights a gaping hole in the state's legal system. Minnesota is one of five states that do not have a felony-level penalty for criminal neglect of a vulnerable adult, treating all such crimes as misdemeanors, according the Vulnerable Adult Justice Project in Minnesota.

For years, prosecutors and advocates for the elderly have tried to provide vulnerable adults legal protection similar to children in Minnesota. But those efforts have been opposed by some influential health care providers and lawmakers concerned that workers or family caregivers would be unfairly punished.

Iris Freeman, associate director at the Center for Elder Justice and Policy at William Mitchell College of Law, said it's difficult to find common ground on the issue. But she said it's important to provide justice "for vulnerable adults that have been victimized by this kind of very serious neglect."

The Star Tribune reviewed about 50 cases filed statewide since 2004 in which someone was convicted of misdemeanor charges for neglecting a vulnerable adult. In six cases, the victim died. Other victims were locked in hot cars while their caregivers went shopping or they ended up in the hospital because of maltreatment. Last year, doctors had to amputate the leg of a disabled man after his mother failed to get him treatment for a badly infected foot.

"We're missing crime here," said Amy Sweasy, an assistant Hennepin County attorney who specializes in elder rights cases. "There's conduct that's worse than misdemeanor conduct that we don't have the statute to use."

Some opponents fear a tougher law would create criminals out of well-intentioned workers in nursing homes, assisted-living facilities and other regulated settings.

"Our members, they would not have any problem if you exempted people that work in facilities and applied it out in the community, where people are much more at risk where you don't have the kinds of checks and balances and eyes and ears," said Darrell Shreve, vice president of health policy with Aging Services of Minnesota, a trade group that represents nursing homes and other senior housing providers.

Shreve noted that doctors and other caregivers who make mistakes are already subject to punishment, both by regulators and the civil courts.

"If a physician commits malpractice you don't put the doc in jail. They get sued," Shreve said. "Why would this be any different?"

Tough penalties for child neglect

If a child dies from neglect or endangerment in Minnesota, caregivers can be charged with second-degree manslaughter. Child neglect that results in substantial harm can also be charged as a felony.

"When someone harms a child, we recognize as a society that that is something that has to be punished at a severe level," said Tara Patet, a prosecutor in the St. Paul City Attorney's office. "When we have the same situation with a vulnerable adult or an elderly person, there's not that same recognition."

In 2010, a mother and daughter who ran a day care center out of their Bloomington home were convicted of manslaughter after leaving a 22-month-old boy alone in a car seat that was strapped too tightly. One was sentenced to four years in prison and the other, who was not home at the time, received nearly a five-year sentence.

By contrast, a personal care attendant was sentenced to four months in jail and ordered to pay $6,600 in fines and restitution for her actions that preceded the death of a 24-year-old who functioned at the level of a toddler and required 24-hour supervision. Dakota County Attorney James Backstrom said the case remains the most "unconscionable case of neglect" he has ever seen.

The man was found dead on a pile of clothes at his South St. Paul home in May 2003, according to a criminal complaint.

His personal care attendant, Angela Shellum, hadn't checked on him for three days. During that time, she didn't change his diaper, administer his daily diabetes medicine or check his blood sugar, the complaint said.

Shellum, who did not return a call seeking comment, was found guilty of gross misdemeanor neglect of a vulnerable adult. She was also convicted on seven counts of felony theft after prosecutors discovered she earned more than $10,000 for care she did not provide to Anderson.

Health care providers agree that there have been outrageous cases of neglect that warrant felony charges, said Matt Anderson, a vice president for regulatory/strategic affairs at the Minnesota Hospital Association. But Anderson said some proposals offer too broad a definition of felony neglect. He's in favor of a law that limits charges to those who engage in behavior that is clearly "intended to result in serious injury or death."

"My biggest concern is that in an unlikely event a well-intentioned, hard-working health care worker trying their best in a very difficult situation that ends up going tragically wrong has to face prosecution at a felony level and possibly be sentenced at a felony level," Anderson said.

'He died for nothing'

The first sign of trouble at an adult foster home in Rochester came in 2007, when an employee reported that company owner Laura Lee Fritts grabbed an 80-year-old resident by the neck, possibly pinched her and pushed her into a bedroom, according to court records. The employee later noticed that the resident had a bruise and a scratch on her neck.

Even though Fritts was criminally charged a month later, state regulators still hadn't issued its report a year later, when another resident of the home showed up at an emergency room moaning from an ulcer on her tailbone that had turned shades of black, red and yellow. The woman, who died three days later, was Fritts' mother, Barbara Noyes.

Fritts was charged with gross misdemeanor neglect. So was her aunt, Kathleen Elizabeth Bryan, who helped care for Noyes. According to the state's investigation, Fritts failed to notify county officials that Bryan took over after Fritts had to spend a week in the hospital.

An autopsy showed Noyes died primarily of pneumonia, but the ulcer was listed as a contributing factor.

In 2008, Bryan pleaded guilty to neglect and was sentenced to two years of probation and ordered to pay a $1,000 fine. Fritts was found guilty of neglect in 2010 and was sentenced to two years of probation. She was also told to provide community service or pay a $900 fine.

"If we're only charging these as gross misdemeanors, what's to prevent somebody from doing this to somebody else?" said Linda Howard, an Olmsted County adult protection worker.

Neither Fritts nor Bryan could be reached for comment.

Shortly after Noyes died, state regulators suspended Fritts' license to operate the home. A similar penalty was imposed at Mayfair Home Health Services, which had its license revoked after a series of violations that included the death of a vulnerable adult in 2007. That case led to criminal charges against company owner Adaeze Julia "Julie" Nawameme Osemeka.

The 28-year-old victim, who had been left paralyzed by a motorcycle accident, was unable to speak. Wes Winkelman Jr. went into shock after he was placed in a scalding, 150-degree shower. About 20 percent of his body was covered in second- and third-degree burns. An ambulance wasn't called for about three hours. There was no nurse on duty at the chronically understaffed home. Winkelman died five months later from an infection brought on by complications from the burns.

Osemeka was charged with a gross misdemeanor for criminal neglect. She was also accused of tax evasion and Medicaid fraud for overbilling the state by nearly $120,000. In a 2009 plea agreement, Osemeka pleaded guilty to three criminal charges and was sentenced to 260 days in a county workhouse. She was also ordered to pay $47,000 in restitution to the state, according to court records.

Maria Winkelman said she was shocked when the attorney general's office told her nobody could be charged with a felony related to neglect for her son's death.

"After everything my son went through, he died for nothing," Winkelman said. "I was so angry and upset."

Osemeka did not respond to an interview request.

'All about fairness'

Chuck MacLean, the former Winona County Attorney who now teaches law in Tennessee, said Minnesota lawmakers should make it possible for prosecutors to pursue felony charges in cases where neglect contributes to the death of a vulnerable adult.

"Criminal law is all about fairness," MacLean said.

For MacLean, the case that drove the point home was the death of Jeanette Elting, 76, who spent the last months of her life bedridden on an air mattress with sores covering her body, according to a criminal complaint. Cigarette butts were stubbed out in a jar of ointment meant to treat her wounds. Her toilet was a 5-gallon pail next to her bed. The floor could barely be seen through the layers of dog feces, garbage and beer cans.

"The smell was something I won't soon forget," said MacLean, who prosecuted the case.

Elting died a few hours after she was brought to an emergency room by her son, Dana Earl Elting, who told hospital workers his mother hadn't seen a doctor in six or seven years because she feared dying in a nursing home like her husband.

MacLean wanted to charge Elting with manslaughter or abuse, but the only felony charges he could pursue involved illegal possession of a firearm. Elting had previous felony convictions in Iowa.

Elting pleaded guilty to misdemeanor neglect charges, but he fled before sentencing and remains a fugitive.

In the Christofferson case, there were signs of trouble almost two years before Marlene died. She was admitted to a hospital in May 2005 with dementia and poor hygiene. During that visit, one of her sons told a doctor that "he is not able to take care of her anymore," records show. A report that same month was sent to social workers and police regarding allegations of caregiver neglect and suspected financial exploitation, according to police records.

Mark Christofferson said he and his brothers took a doctor's advice and placed their mother in a nursing home for about two months after the hospital visit. He said he went to see her daily and each time she said she wanted to return to her Bloomington home.

Mark Christofferson said he and his brother David cared for their mother as best as they could under difficult circumstances. "I took care of her until the day she died," he said.

After being charged with criminal neglect, Mark Christofferson entered an Alford plea in which he maintained his innocence but acknowledged prosecutors had sufficient evidence to convict him. He received a year of probation.

Reached by phone, David Christofferson declined to be interviewed but said: "They took the best thing I ever did in my life -- taking care of my mother -- and tried to make it the worst thing."

Bloomington City Attorney Sandra Johnson said the way Marlene Christofferson died remains "one of the saddest cases I have ever read."

Brad Schrade - 612-673-4777 brad.schrade@startribune.com Lora Pabst - 612-916-7212 lora.pabst@startribune.com

ABOUT THIS SERIES

This Star Tribune investigation is the third in an occasional series of articles examining elder abuse in Minnesota. The series explores how well the state and others protect those who can no longer care for themselves.

Previous installments:

June 5: State regulators have repeatedly botched investigations of abuse and neglect, bringing criticism from federal overseers.

July 26: Ombudsman cuts short her nursing home stay after "dehumanizing" experience.

July 31: Elder care workers with a checkered past get a pass, raising questions about state oversight.