MAY 17, 2004 VOLUME 11, NUMBER 46
Two recent appellate court cases illustrate different aspects of the law’s response to abuse and exploitation of seniors. Taken together the two cases underscore that protection of vulnerable seniors can be a priority of the legal system.
The first case tested California’s law on elder abuse, which permits the courts to (among other things) disinherit a family member or devisee who exploits a senior. Laura Marie Lowrie had accumulated an estate of approximately $1 million during her 89 years. During the last ten years of her life her son Sheldon Lowrie took over more and more of the management of her finances. By the time of her death in 1999 he had gotten her to transfer two houses to him. He had also persuaded her to modify her revocable living trust so that the bulk of her estate would pass to him.
Ms. Lowrie’s granddaughter Lynelle Goodreau believe that her uncle had taken financial advantage of his mother. She brought an action to set aside changes in the living trust, and to secure return of property that should have belonged to the trust.
Ms. Goodreau alleged that her uncle had abused his mother physically and financially. According to her, he isolated his mother from contact with other family members. He taped her telephone handset so that she could not make or receive calls, he locked her security door from the outside so she could not leave her home, and he put a warning sign on the front door instructing social workers and peddlers not to bother her.
Among the choices available to the judge under California’s elder abuse statute was the possibility of ordering that Sheldon Lowrie should be treated as having died before his mother. He was the remainder beneficiary of her trust, and would receive the bulk of her assets under its terms. If he had died before his mother, however, most of the trust assets would pass to Ms. Goodreau.
After hearing testimony from most of the family members, plus neighbors, friends and acquaintances of Ms. Lowrie, the trial judge decided that Mr. Lowrie had taken advantage of his mother. The judge noted that he had stolen hundreds of thousands of dollars from her and from the family business, and that he had bought seven or eight antique automobiles, had paid off his own personal credit card bills, and had accepted “gifts” of most of her physical property.
Based on that testimony the trial judge decided that Mr. Lowrie should be treated as having predeceased his mother. It ordered that he pay Ms. Goodreau $665,623.60 to replace the money he had taken from his mother, plus $250,000 for his mother’s pain and suffering, plus another $50,000 in punitive damages. The California Court of Appeal upheld the judgment and the finding of disinheritance. Estate of Lowrie, April 30, 2004.
Arizona law is similar to the California provision on elder abuse. One alternative available to the courts in extreme cases of abuse, neglect or exploitation is to work a disinheritance of the offender. Just as in the Lowrie case, that would result in the abuser/exploiter being treated as already deceased, and the elder’s property passing to heirs or devisees other than the offender.
In the second elder abuse case reported in recent weeks, a care home operator in Hawai’i was convicted of manslaughter in the death of a resident of her home. The Hawai’i Court of Appeals upheld the conviction, despite her argument that it had not been shown that she intended any harm.
Chiyeko Tanouye was eighty years old at the time of her death. She had lived in an adult care home operated by Raquel Bermisa for only a few months, but her condition had worsened dramatically and quickly.
Ms. Bermisa took Ms. Tanouye to her doctor’s office on June 30, 1999, for treatment for a urinary tract infection. During that visit the doctor noted that Ms. Tanouye had a decubitus ulcer (a bedsore) which, at about five centimeters in size, required attention. He instructed Ms. Bermisa to wash the ulcer with Betadine cleaning solution and to apply Intrasite gel daily, and to bring her back a week later for a follow-up visit.
When Ms. Bermisa returned with Ms. Tanouye on July 7, the decubitus ulcer had not cleared up. The doctor referred her to a specialist for further treatment.
Ms. Tanouye was seen by the specialist just two days later, but her condition had worsened markedly. He saw two decubitus ulcers rather than one, and both had areas of dead tissue. He cleaned the ulcers, applied sterile gauze moistened with saline solution, and instructed Ms. Bermisa to change the dressing two or three times each day. He scheduled another follow-up visit for a week later, but Ms. Bermisa and Ms. Tanouye did not return.
Instead, Ms. Bermisa arrived at the Pali Momi emergency room a month later with Ms. Tanouye in the front seat of her car. She told nurses at the emergency room that she had been out shopping with Ms. Tanouye and the other residents of her care home, and that something was wrong with Ms. Tanouye.
Something was indeed wrong. Ms. Tanouye’s decubitus ulcers had grown much larger, and they showed no signs of treatment. The smell from the ulcers was overpowering to the nurses, and they noted that one of Ms. Tanouye’s heels was also ulcerated. They tried their best to treat Ms. Tanouye but she died the next day.
Ms. Bermisa was charged with manslaughter for her apparent failure to provide adequate care. At her trial testimony was offered from an adult protective services worker, the nurses who provided care to Ms. Tanouye during her final hospitalization, the doctors who had treated her and directed Ms. Bermisa how to care for her, and the trainer who had given Ms. Bermisa instruction leading to her certification as a Certified Nurse’s Aide (CNA). The jury convicted her, and she appealed.
The Hawai’i Court of Appeals affirmed Ms. Bermisa’s conviction. Although she argued that the prosecutor had not shown that she had any intention to harm Ms. Tanouye, the court found that she had acted recklessly, and that she had a duty to provide adequate care. The court also noted that Ms. Bermisa was properly trained to recognize the problems Ms. Tanouye was suffering, and she should have recognized the importance of maintaining the treatment regimen directed by Ms. Tanouye’s physicians. When she failed to follow through with proper treatment, and apparently failed to appreciate the significance of her resident’s condition, she violated her duties as a caretaker. State v. Bermisa, May 7, 2004.
