Criminal prosecution In nursing home abuse cases

posted on:
January 3, 2008

author:
Jere Beasley

Filing a civil suit against a nursing home that has caused serious injury or even death to a loved one is not the only avenue of redress against the nursing facility and its staff. Most families of residents in nursing homes are unaware that nursing home staff members may be prosecuted for the abuse or neglect of a resident under the Adult Protective Services Act.

The precise language of the Act is found in sections 38-9-1 through 38-9-11 of the Alabama Code. The Alabama Legislature enacted the Adult Protective Services Act after recognizing that there were many physically and mentally disabled adults in Alabama who, because of their incapacities, could not care for themselves and could not protect himself or herself from the abuse or neglect of a caregiver. The Act describes the responsibilities of the Department of Human Resources, law enforcement authorities, physicians, and caregivers including hospitals and nursing homes – in providing services to adults covered under the Act.

Who does the Act apply to? The persons covered under the Adult Protective Services Act are persons 18 years of age or older who are mentally incapable of adequately caring for themselves or who, because of physical or mental impairment, are unable to protect themselves from abuse, neglect, exploitation, sexual abuse, or emotional abuse by others. Persons who reside in nursing homes, mental institutions, or developmental centers because of physical or mental incapacity, are covered by the Act.

Specifically, the act makes it unlawful to abuse, neglect, exploit, sexually abuse, or emotionally abuse a person protected under the Act. The Act provides specific definitions of the terms "abuse," "neglect," "exploitation," "emotional abuse," and "sexual abuse." "Abuse" means "[t]he infliction of physical pain, injury, or the willful deprivation by a caregiver or other person of services necessary to maintain mental and physical health." "Neglect" is defined as "[t]he failure of a caregiver to provide food, shelter, clothing, medical services, or health care for the person unable to care for himself or herself; or the failure to provide these basic needs for himself or herself when the failure is the result of the person’s mental or physical inability."

The Act defines "emotional abuse" as "[t]he willful or reckless infliction of emotional or mental anguish or the use of a physical or chemical restraint, medication or isolation as punishment or as a substitute for treatment or care of any protected person." "Sexual abuse" is defined as "[a]ny conduct that is a crime as defined in sections 13A-6-60 to 13A-6-70" of the Alabama Code. Such conduct includes rape, sodomy, forcible sexual contact or sexual contact with a person who is incapable of consent by reason of being physically or mentally incapacitated, and indecent exposure.

In the nursing home context, "abuse" may occur in a variety of different forms. Abuse may include the infliction of physical pain or injury upon a resident, such as striking a resident. Or, abuse may include willfully depriving a resident of services necessary to maintain mental and physical health. Residents in nursing homes require many "services" necessary to maintain mental and physical health, including the provision of food (or nutrients) and water, medications, hygienic care, turning, fall prevention, and treatment of wounds. A staff member may be charged with abuse if he or she willfully fails to provide those services. However, a staff member may be charged with neglect even if his or her failure to provide those health care services was unintentional.

A person found guilty of intentional abuse or neglect under the Act, when the abuse or neglect caused serious injury, is deemed to have committed a Class B felony, punishable by two to twenty years in prison. A person found guilty of reckless abuse or neglect, when the abuse or neglect resulted in serious injury, is deemed to have committed a Class C felony, punishable by one to ten years in prison. A person found guilty of intentional abuse or neglect, when the abuse or neglect caused physical injury, is said to have committed a Class C felony, again punishable by one to ten years in prison. Finally, a person found guilty of reckless abuse or neglect, or emotional abuse, is said to have committed a Class A misdemeanor, punishable by not more than one year in prison.

The Act requires nursing homes to report suspected abuse or neglect to the county department of human resources, the chief of police of the city or county, or to the sheriff of the county. Although the Act proscribes a $500 penalty for failure to make a report, the penalty has been ineffective as an incentive to encourage nursing home administrators to report suspected abuse. In fact, nursing home abuse is rarely reported to the police or the department of human resources, resulting in very few prosecutions under the Act.

In addition, the lack of public outrage against nursing home abuse often results in few prosecutions under the Act and light prison terms for those convicted under the Act. In 1990, a nursing home staff member was convicted of intentionally abusing a patient in a Mobile nursing facility by striking the patient with a metal coat hanger, in violation of the Adult Protective Services Act. The staff member was sentenced to five years, with two years to be served in a jail-like facility and three years’ probation. He was also sentenced to perform 100 hours of community service.

In 1995, a nursing assistant at a Montgomery area nursing home was indicted upon allegations that she had engaged in "inappropriate behavior" toward a resident in the nursing home, in violation of the Adult Protective Services Act; however, the charges against her were dropped in August 1995. About two years ago, two nurses and a mental health worker employed by a mental health facility were arrested and charged with violating the Adult Protective Services Act for failing to conduct a bed check every 15 minutes on a resident who was strangled to death in her room. The employees were also charged with failing to administer medication and falsifying medical records.

Although the Adult Protective Services Act has seldom resulted in the prosecution of nursing home employees who abuse or neglect residents, the Act should not be forgotten when considering how to seek redress when abuse or neglect has injured or even caused the death of a loved one. Civil suits are a way of seeking redress against the nursing home, while criminal charges may be filed under the Adult Protective Services Act against the specific individuals involved in the abuse or neglect. Both are important avenues to consider when a loved one has been abused or neglected in a nursing facility.

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