Thursday, February 19, 2009

Nurse, Physician & Pharmacist From Skilled Nursing Facility Charged With Elder Abuse For Forcibly Administering Psych Medications: Attorney Commentary

On February 18, 2009, the California Attorney General’s Office filed a felony complaint and arrested a nurse, physician, and a pharmacist who worked at Kern Valley Healthcare District, a skilled nursing facility in Lake Isabella, California for “forcibly administering” psychotropic medications for their own convenience, rather than for their patients’ therapeutic interests.”

Three professionals were charged: (1) Gwen Hughes, the former Director of Nursing at the skilled nursing facility; (2) Debbi Hayes, the former pharmacist at the skilled nursing facility; and (3) Dr. Hoshang Pormir, a staff physician at the skilled nursing facility.

The criminal charges in this case are:

■ three counts of elder abuse resulting in death of three patients ages 91, 76 and 85 in violation of Penal Code § 368(b)(1);

■ one count of elder abuse causing great bodily injury to one patient age 83 in violation of Penal Code § 368(b)(1);

■ one count of elder abuse causing great bodily injury to one patient age 83 in violation of Penal Code § 368(b)(1);

■ three counts of elder abuse (without any special enhancements) to three patients over the age of 65 in violation of Penal Code § 368(b)(1); and

■ two counts of assault with a deadly weapon relating to two of the patients who are also alleged victims of elder abuse in violation of Penal Code § 245(a)(1) where the deadly weapons were the psychotropic medications Risperal and Zyprexa.

For more, see the felony complaint and arrest warrant declaration:

There is an article in the L.A. Times about this case:,0,3095223.story

Commentary: From our reading of the arrest warrant declaration, this does not appear to be the type of case where the pharmacist, director of nursing and physician concocted a scheme to abuse the elderly or harm them. The director of nursing is described as being the moving force but it is difficult to know how this can happen without the involvement of other staff. Instead, it seems like what we see in a lot of our cases, a series of small steps that violated professional standards which taken together can be painted as criminal acts. When professionals do not follow the rules or ignore them, such acts can be used to argue criminal intent.

The arrest warrant declaration sets forth the following facts regarding the individuals defendants’ involvement in the case.

Upon taking over as Director of Nursing in September 2006, Gwen Hughes allegedly ordered that Alzheimer’s and other dementia patients be given high doses of psychotropic medications to make them more tranquil and easy to control. She supposedly ordered the administration of these medications to patients who argued with her, were noisy, or who were otherwise disruptive. It is alleged that two patients who resisted were held down and forcibly given injections.

Ms. Hughes is also alleged to have directed Debbi Hayes, the hospital pharmacist, to fill prescriptions for these psychotropic medications. It is alleged that pharmacist Hayes wrote and filled these prescriptions without first obtaining a doctor’s approval.

It is alleged that the physician Dr. Hoshang Pormir approved these psychotropic medications only some time after they had been administered and without examining the patients first and determining whether these psychotropic medications were medically necessary. There are no facts set forth on how the doctor approved the medication after they had been administered but he may have decided to do so thinking it was in the patients' best interest and relying on the nursees and staff working directly with the patients. According to the L.A. Times article, this doctor was still working for the district during the investigation and up to his arrest -- an indication that the administrative investigators did not think he was endangering patients or had committed criminal acts.

Several of these patients are alleged to have had medical complications as a result of being given these psychotropic medications, including lethargy and the inability to eat or drink properly. It is alleged that that three patients died and one patient suffered great bodily injury as a result. Given these patients' ages, proof may be an issue unless there is compelling evidence.

The investigation began in January 2007. Kern Valley Healthcare District operates a small community hospital and skilled nursing facility in Lake Isabella. The case came to the attention of authorities when an ombudsman reported to the Bakersfield office of the California Department of Public Health that a patient in the skilled nursing facility had been held down and given an injection of psychotropic medication by force.

The Department of Public Health immediately sent an investigative team with a doctor, a nurse, and a doctor of pharmacology. They determined that 22 patients, including some who were suffering from Alzheimer’s at the skilled nursing facility, were being given high doses of psychotropic medication not for therapeutic reasons, but to simply control and quiet them for the convenience of the staff.

The Department of Public Health issued a Certificate of Immediate Jeopardy which resulted in the immediate dismissal of the Ms. Hughes. The matter was then turned over to the California Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse. Special Agents from the Bureau of Medi-Cal Fraud and Elder Abuse began a year-long investigation, with the co-operation and assistance of the Department of Public Health and the administration of the Kern Valley Healthcare District.

A search warrant was served on the facility in August 2008, resulting in the seizure of numerous medical files and records. Six months later, these charges were filed.

It is interesting to note that none of the lower level staff or nurses were charged. Instead, the director, physician and pharmacist were charged. The Attorney General's Office may have made a charging decision to use the staff as witnesses in this case against those higher up.

This will be a difficult case in that the elderly in a nursing home are sympathetic victims. There are three alleged deaths and those individuals are not available for trial. It is impossible to know the pressures these individual defendants faced working in a skilled nursing facility or whether there were sufficient budgets for skilled professionals or adequate staffing. Alzheimer's and other elderly patients with dementia may be difficult for properly trained staff to handle.

It is paramount for professionals to remember that if an investigation begins and is referred to a criminal agency – criminal charges can result for acts that might seem administrative or civil at first. One lesson to learn from this is that any investigation -- even one that seems administrative in nature -- must be handled seriously.

Any questions or comments should be directed to: Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of individuals, businesses, licensed professionals and providers, including health care professionals.


DISCLAIMER: Green & Associates' articles and blog postings are prepared as a service to the public and are not intended to grant rights or impose obligations. Nothing in this website should be construed as legal advice. Green & Associates' articles and blog postings may contain references or links to statutes, regulations, or other policy materials. The information provided is only intended to be a general summary. It is not intended to take the place of either the written law or regulations. We encourage readers to review the specific statutes, regulations, and other interpretive materials for a full and accurate statement of their contents and contact their attorney for legal advice. The primary purpose of this website is not the commercial advertisement or promotion of a commercial product or service and this website is not an advertisement or solicitation. Anyone viewing this web site in a state where the web site fails to comply with all laws and ethical rules of that state, should disregard this web site.

The information provided on this website is for informational purposes only. It is not intended to create, and does not create, a lawyer-client relationship with Green & Associates, Attorneys at Law. Sending an e-mail to Tracy Green does not contractually obligate them to represent you as your lawyer, or create any type of client relationship. No attorney-client relationship will be formed absent a written engagement or retainer letter agreement signed by both Green & Associates and client and which specifies the scope of the engagement.

Please note that e-mail transmission is not secure unless it is encrypted. E-mail messages sent to Ms. Green should not include confidential or sensitive information.