THIS IS THE THIRD IN A SERIES ON NURSING HOMES

Law dictionaries define homicide as ending a human life by an act of omission or commission, and that's precisely what some federal, state and local prosecutors believe is a persistent problem in America's nursing homes.

Nursing homes paid by the government or families to provide food, drink, shelter and medical care - the essentials of life - often fail to do so, and their charges die from this neglect. In most cases, investigators say, nursing homes escape detection because nobody is watching.

Medical, academic and government experts say the often paltry civil penalties assessed against nursing homes where these preventable deaths occur appear to be a minimal deterrent at best. The result: Thousands die before their time because of poor care.

The answer, according to a growing number of prosecutors, may be to bring criminal charges against those responsible.

"We need to call these nursing home deaths what they are - homicide," said Candace Heisler, who spent 25 years as an assistant district attorney in San Francisco and now consults across the country with law enforcement authorities in detecting neglect and abuse.

"These are acts where people elect not to give needed life-sustaining care or are prevented from doing so by the people higher up in their organizations," Heisler said. "As professionals, they know that death without this care is inevitable. Someone had better be considering investigating it as a homicide."

Heisler and most other investigators take pains to point out that not all homes are neglectful. They say many homes offer quality care and are properly staffed with people who are well-trained and conscientious.

"A strange new arena"

Death by neglect is far more complex to prove and prosecute than most other deaths. To do so, law enforcement officers, prosecutors and death investigators (medical examiners or well-trained coroners) must all be involved. If any of the trio is missing, nothing will happen.

Police are called to nursing homes for suicides and obvious murders. Beyond those events the facilities are a virtual no man's land for law enforcement officers. Interviews with 82 police and sheriff's departments across the nation found that more than half had investigated allegations of physical abuse and rape in nursing homes. Eight departments said they had worked cases involving financial fraud. But only four departments - San Jose, Calif., North Charleston, S.C., Allegheny County (Pittsburgh) in Pennsylvania, and University City, in St. Louis County - indicated they have ever investigated the death of a person killed by neglect in a nursing home.

University City police are routinely called to all nursing home deaths, said Maj. Charles Adams.

"In their reports, our officers will examine the medication the deceased was on, describe the medical problems, talk to the staff and other residents and call the medical examiner," Adams said.

Victims of neglect don't have strangulation marks, bruises or other signs of violent attacks to which law enforcement authorities traditionally react.

"Neglect is a strange new arena for law enforcement, and most would rather take a drug case or a regular shoot-'em-up any day," said Randy Thomas, who teaches peace officers how to investigate elderly and child abuse for South Carolina's Criminal Justice Academy.

"It's easier to get most officers to walk unarmed into a crack house than go into a nursing home," Thomas said. "It's a lot easier to find out who shot someone six times than have to sort through two three-ring binders of medical records for your clues."

The few investigators who have studied neglect deaths say many are caused by criminal acts.

"Are these nursing home deaths by neglect crimes? Damned right they are," said Detective David Case of the Fresno, Calif., Police Department. "If I'm old and I've got another six months to live and you don't feed me, you snuff me out, that's homicide." Case has gathered a list of 250 homicide and abuse detectives, prosecutors and regulators from around the county who, he says, believe that rules, laws and policies should be created or strengthened. They want permission to investigate these deaths as possible criminal acts.

"Awareness of the severity of the problem is growing, but the lack of adequate laws in some areas and involvement by medical examiners in most is frustrating many efforts to get aggressive in these cases," Case said.

South Carolina's Thomas, who lectures on the issue around the country, summed up the shortcomings in pursuing these deaths: "There is a lack of training on the part of law enforcement, no autopsies done, wimpy prosecutors, the complexity of the cases, and a good dose of no one cares."

The reluctant prosecutors

Most district attorneys and county prosecutors seem equally reluctant to get involved with preventable deaths.

St. Louis County Prosecutor Robert McCulloch said his office has prosecuted no nursing home deaths by neglect.

St. Louis Circuit Attorney Jennifer Joyce said she's "appalled by the thought of people dying from neglect in nursing homes, and I surely would prosecute them if given the evidence, but I've never had one of these cases brought to my attention."

Illinois prosecutors in the counties of Madison, St. Clair and Monroe said they had never issued indictments in nursing home neglect deaths.

Tom Sneddon, the district attorney in Santa Barbara, Calif., succeeded in August in convicting Beverly Enterprises-California, a division of the nation's largest nursing home chain, of criminal neglect for the deaths of two Santa Barbara nursing home residents.

He sent his investigators to Beverly's headquarters in Fort Smith, Ark., to serve a search warrant for documents, and he questions why local prosecutors are not more aggressive.

"It is absolutely imperative that they get involved in cases like these," Sneddon said. "These negligent deaths are occurring in local nursing homes, with local people involved, so it's a local issue and it's our responsibility."

Homicide detectives for St. Louis and St. Louis County say they've never been called in for a neglect death at a nursing home. Never being called is a big part of the problem.

Uniformed officers from University City filed detailed reports on four heat-related deaths that occurred within 48 hours at Leland Healthcare Center last year. Their information was turned over to McCulloch and the medical examiner.

The rare criminal investigator or prosecutor who considers pursuing a death by neglect is often stymied because he or she can't get the proof that the death wasn't the unavoidable result of disease.

Autopsies are rarely done, medical records are sometimes falsified to conceal the lack of care and nursing home officials are often less than forthright in discussing incidents leading up to the deaths.

"These nursing homes are getting away with these deaths by neglect, with killing these people, because coroners and medical examiners are just ignoring these deaths," said Randy Hey, deputy district attorney for Santa Clara, Calif.

In 2000, Hey successfully brought criminal neglect charges against two San Jose nursing homes for the deaths of five people.

"We couldn't bring homicide charges because we didn't have autopsies on the victims, so we had to go with the lesser charges, and that's not right to the people who were killed," Hey said.

Medical examiners play down problem

Medical examiners or coroners must make the official ruling of whether a death was natural, caused by the expected progression of a disease, or a homicide, caused by bad care, the wrong care or no care.

This rarely happens.

In Missouri, from 1998 to 2000, death certificates said 494 nursing home patients died from malnutrition, dehydration and bedsores. Only two were listed in state documents as having had an autopsy. Both were requested by families.

Most medical examiners say they are already overworked and underfunded. This may explain why they say there are no problems that warrant their intervention.

"There is no need to do more than we do now," said Dr. Michael Graham, medical examiner for St. Louis.

"I believe that most nursing homes in St. Louis offer quality care and are closely monitored by the state. For us to review every nursing home death is unnecessary, a waste of time and money and would accomplish little."

His counterpart in St. Louis County, Dr. Mary Case, said she "can see absolutely no reason for investigations of nursing home deaths."

"The wrongful or preventable deaths are being identified by the safeguards in the state laws," Case said. "There are regulations and state inspectors to protect these people. I assume they're doing their jobs. I can't believe that people in these homes starve to death. They all have enough people around to feed them."

In a later interview she added: "There is no way to determine whether or not the deaths are wrongful unless they are investigated, but there is little or no chance of that ever happening here. There's no money for it."

Thirty of the nursing homes the medical examiners are talking about are in the St. Louis congressional district of U.S. Rep. William Lacy Clay Jr., D-Mo., who late last year questioned the quality of care at the facilities. A report from Clay by special investigators of the House Government Reform Committee found that 15 of the 30 homes had violations that could cause serious harm or death.

Only one coroner was found in Illinois who said he checks out all nursing home deaths. The effort has not uncovered any deaths by neglect.

"It's just the right thing to do," said Lynn Reed, the coroner for Moultrie County in central Illinois. "Every home in the county notifies my office when one of their residents die. If we don't determine whether there's anything unusual about the death, who will?"

In Little Rock: A watchful coroner

The opinions of Graham and Case were echoed by many of the 31 death investigators the Post-Dispatch interviewed, but there were some who vigorously disagreed.

"If a death investigator doesn't do at least a basic examination of the people and their medical records when they die, then a nursing home's mistakes will be buried with them," said Mark Malcolm, the chief coroner for Arkansas' Pulaski County.

Much to the consternation of the Arkansas nursing home lobby, Malcolm was able to get the Legislature to slip in a 10-line law requiring nursing homes to notify the coroner of all deaths before the body is removed. The Arkansas law is the only one of its kind in the nation.

At 8:15 on the evening of Aug. 21, a Wednesday, Malcolm and his deputy, Tim Irizarry, were starting to examine their third Little Rock nursing home death on a workday that had started 14 hours earlier.

The deceased was Willie B. Harris, an 83-year-old woman who had died two hours earlier. She was covered with a white sheet to her neck, her gray hair neatly braided.

The coroners gently ran their gloved hands over her body looking for bruises, anything unusual. Malcolm flipped through her medical chart while Irizarry photographed a large bedsore on her lower back and other marks on her upper legs.

Unlike the two other bodies they had examined earlier and quickly determined to be natural deaths, they had questions about Harris' care. Her chart showed and the family explained that she had recurring infections that had her going back and forth between the hospital and the last nursing home in which she lived. She also had been dropped by caregivers in that home and bones were broken.

"There was too much about Mrs. Harris' history that raised questions about her care," Malcolm said.

The family agreed to an autopsy, one of only six that Malcolm had requested to be done on nursing home deaths this year. It failed to conclusively determine neglect, and Harris' death was ruled the result of natural causes.

"We owe it to the deceased, their family and the nursing home to determine whether or not the death was caused by neglect," Malcolm said. "Anything less and we're not doing our job."

A team approach in Charleston

Other coroners also have taken an aggressive stand.

Susan Chewning is a registered nurse and the coroner for Charleston County in South Carolina. She also is trying to identify cases of neglect deaths among the elderly.

Working closely with the county prosecutor and police detectives from Charleston and North Charleston, she has ruled that three deaths this year were homicides caused by neglect.

"It's a team effort," Chewning said. "We do a review within seven days because we're worried that medical records we need as evidence will be altered or shredded. We sit around a large table and bring in everyone involved and every piece of evidence they have, including the 911 tape from the incident."

Sitting at the table are the ambulance crew and police officers who were at the scene, a pathologist, the prosecutor, a representative from state nursing home licensing agencies and the detectives.

"We limit the discussion to only one hour, and people can present only facts - they can't surmise," Chewning said.

"Sometimes, these meetings get heated, with one agency sometimes angry at another for not doing their job, but for the most part, everyone works together to find why this vulnerable adult died."

If criminal neglect occurred, investigators can usually prove it, she said.

"When you're dealing with a vulnerable adult, and there's a caregiver who's responsible for caring for them and they died because the care wasn't provided, that's homicide," Chewning explained.

North Charleston Detective Jerry Jellico said working side by side with the coroner's office gives investigators a better chance to determine precisely what happened.

"They've got the medical knowledge that we need to make the piles of medical charts understandable, to help us find the proof we need to document or disprove neglect," Jellico said.

In Evansville: An anonymous tip

Annie Groves is chief deputy coroner in Indiana's Vanderburgh County. She has been telling nurses, doctors, paramedics and funeral home operators in and around Evansville to call her if they encounter the bodies of any elderly people who may have been mistreated.

On the night of Jan. 7, a nurse at Deaconess Hospital found an out-of-the-way phone and called the coroner's office. She didn't give her name. The nurse said that Groves should take a look at the body of 80-year-old Mary Mynatt, who had been pronounced dead just a few minutes earlier. The nurse told Groves that the woman's death may not have been as natural as the nursing home's doctor was saying.

Groves immediately subpoenaed the woman's medical records from the hospital and the nursing home.

"The nursing home records show there was no documentation, none at all, for several weeks prior to Mrs. Mynatt's death," said Coroner Donald Erk, who has spent 20 years as an Evansville homicide detective. "When I say nothing, I mean there were no nursing notes, no record of medications, nothing on how she was eating and drinking, nothing on her weight - nothing. This just didn't make sense."

The autopsy done by a forensic pathologist found "no evidence of old or present heart attack," which the nursing home's physician had said was one of the causes of death. But the pathologist did find significant signs of severe dehydration.

Erk and Groves met with the sheriff's office, state health department and the county prosecutor's office.

"Mrs. Mynatt, like a child, was totally dependent on the nursing home staff for all her care," Erk said. "She apparently didn't get it, and we ruled her death a homicide."

Last month, the county prosecutor charged two nurses from the home with felony criminal neglect.

Robert Cohen of the Post-Dispatch assisted in the reporting of this story.

Andrew Schneider:
E-mail: aschneider@post-dispatch.com
Phone: 314-340-8101