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Thursday, February 12, 2009
Nursing Home Is Convicted of Abuse
By Scott Sandlin
Journal Staff Writer
A now-defunct Albuquerque nursing home was convicted Wednesday of criminal charges stemming from a case in which a resident died after he was allowed to lie on a bedpan for more than 24 hours on Christmas Day 2005.
The charges — abuse of a resident resulting in substantial pain or incapacitation and an alternative charge of neglect — are more commonly leveled against individual defendants. Because corporations can't be incarcerated, District Judge Neil Candelaria will decide on a fine when he imposes sentence.
The jury, which has spent the past two weeks hearing evidence stemming from the death of Richard Gerhardt, 76, cleared Laurel Canyon LLC of a separate count of abuse resulting in death.
The case was prosecuted by the New Mexico Attorney General's Office as a Medicaid fraud on the theory that the facility had received payment for services it hadn't rendered in caring for Gerhardt.
The conviction will be appealed, defense attorneys said.
"This is a new area in terms of corporate criminal liability," said Cammie Nichols, co-counsel with Peter Schoenburg for the nursing home. "There are unsettled issues that call for appellate court resolution."
Nichols said it was important to note that the jury absolved the facility of responsibility for Gerhardt's death.
Although the company acknowledged that the bedpan had remained on Gerhardt's back long enough to cause lesions that led to sepsis, Nichols disputed the state's contention that it meant the patient received none of the checks or patient care required by policy and procedure.
"There was evidence presented that it was possible not to have seen it, and you wouldn't have known it was there unless you were alerted to it," Nichols said of the bedpan.
Laurel Canyon took the position that while mistakes had been made, it wasn't responsible for Gerhardt's death because of the multiple other ailments he was suffering from at the time of his admission.
Neither Assistant Attorney General David Hughes, who prosecuted the case, nor Elizabeth Staley, Medicaid Fraud division director in the Attorney General's Office, was available for comment.
Gerhardt was admitted to Laurel Canyon on Dec. 23, 2005, after suffering a broken femur and being treated at Presbyterian Hospital. He was taken back to Presbyterian on Dec. 28 and died there two days later.
A state investigation confirmed that the facility was seriously understaffed on Christmas Day, when prosecutors said he was left unattended.
"This is not a case where somebody took a knife and carved a horseshoe shape in his posterior," Hughes told jurors in his closing argument earlier this week. "If it was, it would be a lot easier. ... But the result was the same."
In some ways, he said, it was more insidious. Gerhardt was attacked by infection inside his body because of the failure by the administration to ensure that nursing staff did what they were supposed to do, Hughes said.
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