Tuesday, September 29, 2009

Skilled Nursing Facility Administrator Charged Criminally For Allowing Staff To Forcibly Administer Psychotropic Drugs For "Staff's Convenience"

On February 19, 2009, I wrote about the California Attorney General’s Office filing a felony complaint and arresting 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.” That blog post can be reviewed here:http://greenandassociates.blogspot.com/2009/02/nurse-physician-pharmicist-from-skilled.html

In a follow-up to that post, on September 8, 2009, the Attorney General's Office has filed charges against Kern Valley Hospital administrator Pamela Ott. She was not previously charged. Ms. Ott was charged on eight felony counts of elder abuse for allowing staff to forcibly administer psychotropic medications to patients for their own convenience, rather than for their patients' therapeutic interests. The government's position is that as the hospital administrator, Pamela Ott, was ultimately responsible for safeguarding the welfare of her patients. The case is pending in Kern County Superior Court.

Ms. Ott surrendered herself in court on September 8 and plead not guilty. She was released on her own recognizance on the condition that she not run a skilled nursing facility. A preliminary hearing is set for November 4, 2009.
There has been one plea in this case by Debbi Hayes, the former pharmacist at the Valley Healthcare District. On August 14, 2009, Ms. Hayes plead no contest to a felony charge of conspiracy to commit an act injurious to public health. She is a cooperating witness for the prosecution. Ms. Hayes was originally charged with elder abuse and assault with a deadly weapon.

The case is being prosecuted by the Attorney General's Bureau of Medi-Cal Fraud and Elder Abuse, with the co-operation and assistance of the Kern County District Attorney's Office.

Attorney Commentary: One troubling aspect of this case which continues to be an issue in white collar crime and health care fraud cases is the notion of vicarious liability -- holding a supervisor responsible for the acts of others. This theory can be applied to administrators, supervisors and physicians who are in a supervisory position.
For example, in this case the Attorney General has alleged that administrator Ms. Ott hired and supervised Director of Nursing Gwen Hughes who was charged in February 2009. It is also alleged that Ms. Ott was informed about the actions of Ms. Hughes when she 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, with two noisy or disruptive patients being held down and forcibly administered the medications. The government alleges that administrator Ott allowed this conduct to continue once she learned about it.

The skilled nursing facility is not being charged criminally since the state government prefers to prosecute individuals - especially when the businesses are not public corporations. Corporations have long been charged criminally under the theory of respondeat superior - especially in environmental crimes. Charging supervisors with criminal acts for the actions of their subordinates is becoming more common.

In our practice, we are seeing physicians, owners of health care businesses and other businesses charged with offenses because they are ultimately responsible even where there is little or no evidence that they committed any acts or even knew of the alleged wrongdoing. Part of this may be a practical tactic by the prosecutor. The lower level people may defend their actions that they are employees and did not benefit financially or were acting according to orders from above. By charging the supervisors and the ones who committed the alleged acts - there is less of an empty chair defense available and it encourages the lower level employees to plead and cooperate against the supervisor.

For example, in the past year we have defended two physicians who were charged with Medi-Cal fraud because there was billing for services not provided. The physicians were not involved in the billing, did not instruct anyone to bill for services not provided and the billing errors were either mistakes or the actions of an employee on their own. Because the physician is the one who would profit from such mistakes and received the money from the billing, the physician is an easy target. One case we got dismissed at preliminary hearing while it took over a year to get the physician dismissed from the other case. Prosecutors are becoming more aggressive in these types of cases.

For this reason, compliance plans, internal audits, employee manuals and well-established personnel policies will be more important in helping defend these types of offenses. In smaller businesses and corporations, these are often sorely lacking. Further, when there are errors or misconduct by subordinates, there is usually no record of discipline or any memoranda to indicate that these errors will not be tolerated in the future. We encourage our clients to think ahead and remember that they are regulated by the government and are subject to more intense scrutiny when they are billing the government.

Any questions or comments should be directed to:
tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in health care cases. Their website is: http://www.greenassoc.com/


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