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Massachusetts' Highest Court Rejects Criminal Prosecution of Nursing Home Facility

The Commonwealth of Massachusetts indicted Life Care Centers of America, a nursing home corporation, based on its staff's alleged failure to act to protect a resident from known life-threatening harm. The indictment charged the corporation with involuntary manslaughter and neglect based on its collective knowledge and conduct of a number of the corporation's employees, without singling out any one employee for indictment.

This was the first time in Massachusetts that a corporation had been indicted criminally for manslaughter and neglect in a nursing home setting without the charging of an individual, and the question of whether a corporation can be held liable under such a theory was taken up by the state's highest court.

Unfortunately, the court declined to find a criminal prosecution proper against the corporation, ruling that the alleged criminal responsibility could not be supported under state law.

The Case

Julie McCauley was 73 years old at the time of her death. A resident of a Life Care facility since 1994, McCauley suffered from dementia, hydrocephalus and irreversible brain damage, and had a known history of wandering. In 1999, she was discovered in her wheelchair between two sets of double doors at the entrance of the facility; in 2004 she propelled herself through the same sets of doors on her wheelchair and down eight steps, an action that resulted in her death.

After the 1999 incident, a physician's order required that McCauley be equipped with a Wanderguard (a device that sounds an alarm if it approaches an exit door) and ordered that staff check that it was present on her wheelchair and functioning every day. However, at the time of her death, while the facility was short-staffed, the Wanderguard was not in place and later no one could recall when it had last been seen. And shortly before her death, the facility mistakenly implemented a policy that caused all Safety Support and Wanderguard orders to be removed from patient treatment sheets.

Federal and state statutes recognize the vulnerability of nursing home residents and impose high standards of care on residential facilities. But even this is not enough. In addition to civil suits brought by victims and their families, for the past decade, prosecutors around the country have brought criminal actions against nursing home corporations in an effort to protect victims of abuse and neglect.

AARP's Brief

AARP's brief, filed by attorneys with AARP Foundation Litigation, reviewed the history of nursing home regulation, litigation and criminal liability.

The brief also discussed the collective knowledge theory of corporate liability — a legal doctrine that is derived from the concept that a corporation can be held criminally liable for the acts or omissions of its agents acting within the scope of their employment. This theory has, for example, held trucking firms criminally liable for knowingly and willfully permitting unsafe drivers to operate, and it has been used in other situations where the courts determined it was the corporation's responsibility to determine whether its employees, in carrying out their duties to their employer, were complying with the law.

AARP's brief detailed how numerous states around the country had brought criminal charges against nursing home corporations and have resolved those cases separately from charges brought at the same time against individual officers or agents of the corporation. That separate liability, the brief argued, combined with the collective knowledge theory, supported the state's contention that a corporation can in fact be held liable for criminal misconduct in the absence of charges against individuals.

The Ruling

The court disagreed. "Because wanton or reckless behavior is an essential element of the offense of involuntary manslaughter, the evidence is insufficient to support a conviction unless there is at least one individual whose behavior could permissibly be found to have been wanton or reckless," the court wrote.

The efforts of the state's attorney general were particularly important because the regulatory framework alone cannot adequately protect nursing home residents. In 2007, 94 percent of for-profit nursing homes, 91 percent of government-run homes, and 88 percent of nonprofit homes were cited for deficiencies, according to the Office of the Inspector General of the U.S. Department of Health and Human Services — and yet much malfeasance often goes unpunished. The Government Accountability Office found in 2007 that almost half the homes it reviewed cycled "in and out of compliance, continuing to harm residents."

Criminal convictions are important tools because once criminally convicted, a corporation can be excluded from participation in government health programs. The potential withdrawal of eligibility for Medicaid, Medicare or other programs can prove to be a tremendous financial disincentive for nursing homes and can help spur compliance with the law.