THIS IS THE THIRD IN A SERIES ON NURSING HOMES 

Law dictionaries define homicide as ending a human life by an act of omission or commission, and that's precisely what some federal, state and local prosecutors believe is a persistent problem in America's nursing homes.  Nursing homes paid by the government or families to provide food, drink, shelter and medical care - the essentials of life - often fail to do so, and their charges die from this neglect. In most cases, investigators say, nursing homes escape detection because nobody is watching.  Medical, academic and government experts say the often paltry civil penalties assessed against nursing homes where these preventable deaths occur appear to be a minimal deterrent at best. The result: Thousands die before their time because of poor care.  The answer, according to a growing number of prosecutors, may be to bring criminal charges against those responsible.

At 4:45 a.m. in Little Rock, Ark., Pulaski County Coroner Mark Malcolm enters an area nursing home to investigate the death of a 74-year-old woman who died an hour earlier. Though Malcolm and a deputy coroner discovered three healing bedsores on her lower back and some bruising to a leg, the coroners felt her condition did not warrant an autopsy and she was released to a funeral home.

"These are acts where people elect not to give needed life-sustaining care or are prevented from doing so by the people higher up in their organizations," Heisler said. "As professionals, they know that death without this care is inevitable. Someone had better be considering investigating it as a homicide." 

Heisler and most other investigators take pains to point out that not all homes are neglectful. They say many homes offer quality care and are properly staffed with people who are well-trained and conscientious. 

"A strange new arena" 

Death by neglect is far more complex to prove and prosecute than most other deaths. To do so, law enforcement officers, prosecutors and death investigators (medical examiners or well-trained coroners) must all be involved. If any of the trio is missing, nothing will happen. 

Police are called to nursing homes for suicides and obvious murders. Beyond those events the facilities are a virtual no man's land for law enforcement officers. Interviews with 82 police and sheriff's departments across the nation found that more than half had investigated allegations of physical abuse and rape in nursing homes. Eight departments said they had worked cases involving financial fraud. But only four departments - San Jose, Calif., North Charleston, S.C., Allegheny County (Pittsburgh) in Pennsylvania, and University City, in St. Louis County - indicated they have ever investigated the death of a person killed by neglect in a nursing home. 

University City police are routinely called to all nursing home deaths, said Maj. Charles Adams. 

"In their reports, our officers will examine the medication the deceased was on, describe the medical problems, talk to the staff and other residents and call the medical examiner," Adams said. 

Victims of neglect don't have strangulation marks, bruises or other signs of violent attacks to which law enforcement authorities traditionally react. 

"Neglect is a strange new arena for law enforcement, and most would rather take a drug case or a regular shoot-'em-up any day," said Randy Thomas, who teaches peace officers how to investigate elderly and child abuse for South Carolina's Criminal Justice Academy. 

"It's easier to get most officers to walk unarmed into a crack house than go into a nursing home," Thomas said. "It's a lot easier to find out who shot someone six times than have to sort through two three-ring binders of medical records for your clues." 

The few investigators who have studied neglect deaths say many are caused by criminal acts. 

"Are these nursing home deaths by neglect crimes? Damned right they are," said Detective David Case of the Fresno, Calif., Police Department. "If I'm old and I've got another six months to live and you don't feed me, you snuff me out, that's homicide." Case has gathered a list of 250 homicide and abuse detectives, prosecutors and regulators from around the county who, he says, believe that rules, laws and policies should be created or strengthened. They want permission to investigate these deaths as possible criminal acts. 

"Awareness of the severity of the problem is growing, but the lack of adequate laws in some areas and involvement by medical examiners in most is frustrating many efforts to get aggressive in these cases," Case said. 

South Carolina's Thomas, who lectures on the issue around the country, summed up the shortcomings in pursuing these deaths: "There is a lack of training on the part of law enforcement, no autopsies done, wimpy prosecutors, the complexity of the cases, and a good dose of no one cares." 

The reluctant prosecutors 

Most district attorneys and county prosecutors seem equally reluctant to get involved with preventable deaths. 

St. Louis County Prosecutor Robert McCulloch said his office has prosecuted no nursing home deaths by neglect. 

St. Louis Circuit Attorney Jennifer Joyce said she's "appalled by the thought of people dying from neglect in nursing homes, and I surely would prosecute them if given the evidence, but I've never had one of these cases brought to my attention." 

Illinois prosecutors in the counties of Madison, St. Clair and Monroe said they had never issued indictments in nursing home neglect deaths. 

Tom Sneddon, the district attorney in Santa Barbara, Calif., succeeded in August in convicting Beverly Enterprises-California, a division of the nation's largest nursing home chain, of criminal neglect for the deaths of two Santa Barbara nursing home residents. 

He sent his investigators to Beverly's headquarters in Fort Smith, Ark., to serve a search warrant for documents, and he questions why local prosecutors are not more aggressive. 

"It is absolutely imperative that they get involved in cases like these," Sneddon said. "These negligent deaths are occurring in local nursing homes, with local people involved, so it's a local issue and it's our responsibility." 

Homicide detectives for St. Louis and St. Louis County say they've never been called in for a neglect death at a nursing home. Never being called is a big part of the problem. 

Uniformed officers from University City filed detailed reports on four heat-related deaths that occurred within 48 hours at Leland Healthcare Center last year. Their information was turned over to McCulloch and the medical examiner. 

The rare criminal investigator or prosecutor who considers pursuing a death by neglect is often stymied because he or she can't get the proof that the death wasn't the unavoidable result of disease. 

Autopsies are rarely done, medical records are sometimes falsified to conceal the lack of care and nursing home officials are often less than forthright in discussing incidents leading up to the deaths. 

"These nursing homes are getting away with these deaths by neglect, with killing these people, because coroners and medical examiners are just ignoring these deaths," said Randy Hey, deputy district attorney for Santa Clara, Calif. 

In 2000, Hey successfully brought criminal neglect charges against two San Jose nursing homes for the deaths of five people. 

"We couldn't bring homicide charges because we didn't have autopsies on the victims, so we had to go with the lesser charges, and that's not right to the people who were killed," Hey said. 

Medical examiners play down problem 

Medical examiners or coroners must make the official ruling of whether a death was natural, caused by the expected progression of a disease, or a homicide, caused by bad care, the wrong care or no care. 

This rarely happens. 

In Missouri, from 1998 to 2000, death certificates said 494 nursing home patients died from malnutrition, dehydration and bedsores. Only two were listed in state documents as having had an autopsy. Both were requested by families. 

Most medical examiners say they are already overworked and underfunded. This may explain why they say there are no problems that warrant their intervention. 

"There is no need to do more than we do now," said Dr. Michael Graham, medical examiner for St. Louis. 

"I believe that most nursing homes in St. Louis offer quality care and are closely monitored by the state. For us to review every nursing home death is unnecessary, a waste of time and money and would accomplish little." 

His counterpart in St. Louis County, Dr. Mary Case, said she "can see absolutely no reason for investigations of nursing home deaths." 

"The wrongful or preventable deaths are being identified by the safeguards in the state laws," Case said. "There are regulations and state inspectors to protect these people. I assume they're doing their jobs. I can't believe that people in these homes starve to death. They all have enough people around to feed them." 

In a later interview she added: "There is no way to determine whether or not the deaths are wrongful unless they are investigated, but there is little or no chance of that ever happening here. There's no money for it." 

Thirty of the nursing homes the medical examiners are talking about are in the St. Louis congressional district of U.S. Rep. William Lacy Clay Jr., D-Mo., who late last year questioned the quality of care at the facilities. A report from Clay by special investigators of the House Government Reform Committee found that 15 of the 30 homes had violations that could cause serious harm or death. 

Only one coroner was found in Illinois who said he checks out all nursing home deaths. The effort has not uncovered any deaths by neglect. 

"It's just the right thing to do," said Lynn Reed, the coroner for Moultrie County in central Illinois. "Every home in the county notifies my office when one of their residents die. If we don't determine whether there's anything unusual about the death, who will?" 

In Little Rock: A watchful coroner 

The opinions of Graham and Case were echoed by many of the 31 death investigators the Post-Dispatch interviewed, but there were some who vigorously disagreed. 

"If a death investigator doesn't do at least a basic examination of the people and their medical records when they die, then a nursing home's mistakes will be buried with them," said Mark Malcolm, the chief coroner for Arkansas' Pulaski County. 

Much to the consternation of the Arkansas nursing home lobby, Malcolm was able to get the Legislature to slip in a 10-line law requiring nursing homes to notify the coroner of all deaths before the body is removed. The Arkansas law is the only one of its kind in the nation. 

At 8:15 on the evening of Aug. 21, a Wednesday, Malcolm and his deputy, Tim Irizarry, were starting to examine their third Little Rock nursing home death on a workday that had started 14 hours earlier. 

The deceased was Willie B. Harris, an 83-year-old woman who had died two hours earlier. She was covered with a white sheet to her neck, her gray hair neatly braided. 

The coroners gently ran their gloved hands over her body looking for bruises, anything unusual. Malcolm flipped through her medical chart while Irizarry photographed a large bedsore on her lower back and other marks on her upper legs. 

Unlike the two other bodies they had examined earlier and quickly determined to be natural deaths, they had questions about Harris' care. Her chart showed and the family explained that she had recurring infections that had her going back and forth between the hospital and the last nursing home in which she lived. She also had been dropped by caregivers in that home and bones were broken. 

"There was too much about Mrs. Harris' history that raised questions about her care," Malcolm said. 

The family agreed to an autopsy, one of only six that Malcolm had requested to be done on nursing home deaths this year. It failed to conclusively determine neglect, and Harris' death was ruled the result of natural causes. 

"We owe it to the deceased, their family and the nursing home to determine whether or not the death was caused by neglect," Malcolm said. "Anything less and we're not doing our job." 

A team approach in Charleston 

Other coroners also have taken an aggressive stand. 

Susan Chewning is a registered nurse and the coroner for Charleston County in South Carolina. She also is trying to identify cases of neglect deaths among the elderly. 

Working closely with the county prosecutor and police detectives from Charleston and North Charleston, she has ruled that three deaths this year were homicides caused by neglect. 

"It's a team effort," Chewning said. "We do a review within seven days because we're worried that medical records we need as evidence will be altered or shredded. We sit around a large table and bring in everyone involved and every piece of evidence they have, including the 911 tape from the incident." 

Sitting at the table are the ambulance crew and police officers who were at the scene, a pathologist, the prosecutor, a representative from state nursing home licensing agencies and the detectives. 

"We limit the discussion to only one hour, and people can present only facts - they can't surmise," Chewning said. 

"Sometimes, these meetings get heated, with one agency sometimes angry at another for not doing their job, but for the most part, everyone works together to find why this vulnerable adult died." 

If criminal neglect occurred, investigators can usually prove it, she said. 

"When you're dealing with a vulnerable adult, and there's a caregiver who's responsible for caring for them and they died because the care wasn't provided, that's homicide," Chewning explained. 

North Charleston Detective Jerry Jellico said working side by side with the coroner's office gives investigators a better chance to determine precisely what happened. 

"They've got the medical knowledge that we need to make the piles of medical charts understandable, to help us find the proof we need to document or disprove neglect," Jellico said. 

In Evansville: An anonymous tip 

Annie Groves is chief deputy coroner in Indiana's Vanderburgh County. She has been telling nurses, doctors, paramedics and funeral home operators in and around Evansville to call her if they encounter the bodies of any elderly people who may have been mistreated.

On the night of Jan. 7, a nurse at Deaconess Hospital found an out-of-the-way phone and called the coroner's office. She didn't give her name. The nurse said that Groves should take a look at the body of 80-year-old Mary Mynatt, who had been pronounced dead just a few minutes earlier. The nurse told Groves that the woman's death may not have been as natural as the nursing home's doctor was saying. 

Groves immediately subpoenaed the woman's medical records from the hospital and the nursing home. 

"The nursing home records show there was no documentation, none at all, for several weeks prior to Mrs. Mynatt's death," said Coroner Donald Erk, who has spent 20 years as an Evansville homicide detective. "When I say nothing, I mean there were no nursing notes, no record of medications, nothing on how she was eating and drinking, nothing on her weight - nothing. This just didn't make sense." 

The autopsy done by a forensic pathologist found "no evidence of old or present heart attack," which the nursing home's physician had said was one of the causes of death. But the pathologist did find significant signs of severe dehydration. 

Erk and Groves met with the sheriff's office, state health department and the county prosecutor's office. 

"Mrs. Mynatt, like a child, was totally dependent on the nursing home staff for all her care," Erk said. "She apparently didn't get it, and we ruled her death a homicide." 

Last month, the county prosecutor charged two nurses from the home with felony criminal neglect. 
 

Throughout the country, small groups of federal and state investigators are protecting the vulnerable elderly from wrongful deaths in nursing homes by using midnight raids and a Civil War-era law. 

The badges they carry are those of assistant U.S. attorneys, assistant state attorneys general, the FBI or inspector general for the Department of Health and Human Services. 

Most of these successes come from work done by and with Medicaid Fraud Control Units. The teams get most of their money from the federal government but are usually run by state attorneys general. They range in size from 288 in New York to four in Wyoming. 

The fraud units were set up 25 years ago to ferret out financial fraud in Medicaid and Medicare programs. In the late 1990s, some units began targeting nursing home neglect and abuse for prosecution. 

In January of last year, Hawaii's fraud unit became the first in the nation to prosecute a care home owner for homicide in the negligent death of a resident. Government prosecutors said Chiyeko Tanouye, 79, died from malnutrition and massive infections from bedsores. A jury found the owner of the home in Pearl City guilty of manslaughter, and the court sentenced her to 20 years in prison. 

Last October, Michigan's fraud unit charged a nursing home chain and the manager of its Detroit home with involuntary manslaughter in the death by malnutrition of Karen Peltier, a deaf and blind resident who weighed 45 pounds when she died. The case is awaiting trial. 

In August, Springfield, Tenn., Assistant District Attorney Dent Morriss indicted the administrator, the nursing director and the corporation that operated a home on charges of reckless homicide in the death of Lillian Hyde. Morriss said the 81-year-old resident died from infection from seven bedsores, one of which ate through to her spine. The case was first reported by the Tennessee Bureau of Investigation, which runs the state's fraud unit. 

"The elderly are entitled to some dignity and some degree of quality of life," Morriss said. "Cases like these can make people aware that improper care can result in criminal charges, and maybe that will stick in the back of the mind of some nurse who might be tempted to not go turn some little, old person who needs it to survive." 

Dusting off a Civil War statute 

Four years after President Bill Clinton ordered a crackdown on bad care and preventable deaths in the nation's nursing homes, there are still no federal laws against elder abuse and neglect. 

The Justice Department says it has repeatedly asked for more authority. 

"When caregivers violate that trust, society and the victims themselves must be able to depend on those responsible for enforcing the law to pursue some form of justice," Marie-Therese Connolly, who heads the Justice Department's nursing home initiative, said in a study published last month in the Journal of Health Care Law and Policy. 

"A federal abuse and neglect statute could greatly facilitate federal law enforcement's ability to prosecute such cases," Connolly said. 

But a handful of federal prosecutors concerned about deaths by neglect aren't waiting for a new law. They've dusted off the False Claim Act, signed by President Abraham Lincoln in 1863 to crack down on merchants who were falsifying bills for food, uniforms and munitions for Civil War troops. 

The first to apply Lincoln's law to nursing homes was David Hoffman, an assistant U.S. attorney in Philadelphia. In 1996, Hoffman charged 17 Pennsylvania nursing homes. They were fined more than $500,000 for what he described at the time as "the worst neglect imaginable." 

Over the next six years, he found even worse neglect and again used the law to crack down on seven more nursing homes. 

"The legal premise is very simple," he explained. "Nursing homes are paid to provide life-sustaining care. When you find people are being starved, or dying from preventable infections that have eaten the flesh to the bone, or living in potentially deadly conditions, that's failure to do what they're being paid for. That's fraud." 

U.S. attorneys in Louisiana, Florida, Virginia and western Missouri also have pursued nursing home owners under the False Claim Act. But the law is not uniformly applied by all U.S. attorneys. 

Andrew Lay, an assistant U.S. attorney who formerly worked in Kansas City, successfully brought several cases against nursing homes under the False Claim Act. 

Across the state in St. Louis, an area identified by government investigators as being rife with complaints of potentially deadly care, U.S. Attorney Ray Gruender and his staff have brought no charges stemming from neglect. 

"If we have people dying of bad care here, I'm all for looking at them," Gruender said. "If there's any law we can apply, we will, but we don't have the tools." 

A spokesman for Miriam Miquelon, the U.S. attorney for Southern Illinois, said her office has never brought charges for deaths by neglect in nursing homes. 

Paul McNulty, the U.S. attorney for the Eastern District of Virginia, said his office began focusing on the nursing home problem about two years ago. 

"We became aware of a number of facilities that had very serious problems with the care of patients, and we decided to pursue that aggressively," McNulty said. "We have about a dozen cases in the pipeline." 

Already, two nursing homes have agreed to pay hundreds of thousands of dollars in fines. Instead of letting the money go to the government coffers, McNulty has arranged for it to be spent on increased staffing and quality monitoring at the cited homes. "Both (cases) involved situations where there were very egregious examples of neglect, where inspectors found residents with massive, horrible bedsores, with maggots in their ears, with really extreme malnutrition," the U.S. attorney said. "The money will be used to ensure that this doesn't happen again." 

The three U.S. attorneys in Louisiana teamed up with fraud unit investigators, ombudsmen, the FBI and state agencies to aggressively pursue nursing home neglect. 

Paul Weidenfeld, an assistant U.S. attorney in the New Orleans office, said the team emphasizes education of medical professionals and police about the plight of the elderly, including teaching numerous courses on elder neglect and abuse in Louisiana's emergency rooms and medical schools. 

A powerful tool that the government rarely uses could be applied in cases of neglect where convictions are obtained. Federal and state authorities call it the "corporate death penalty." It is actually called the mandatory exclusion provision. It means that any business receiving Medicaid or Medicare funds that is convicted of any program-related crime may be banned from receiving any future funding for its nursing homes. 

While nursing homes should be terrified of the statute, they aren't. 

Regulators and investigators describe the exclusion provision as the government holding a gun to its own head. When it pulls the trigger - uses the exclusion provision - the government becomes responsible for finding new nursing home beds for the residents of the facility it shut down. It's a logistical nightmare for the agencies and a health risk to the people being moved. 

In some cases, homes are ordered shut under the law. That's what happened after fraud investigators for Kentucky's attorney general found 24 patients in Diversified Health Services' Pavilion nursing home in Louisville suffering from extreme malnutrition and "bedsores down to the bone." Last year, Diversified paid $1.2 million in fines, including $500,000 to a scholarship program for nurses. 

The staff was snoring 

Nursing homes often know when state inspectors are going to show up for their annual inspection. 

Frequently, investigators say, the homes quickly beef up their staffs with nurses and aides, hired temporarily or borrowed from other homes in the same corporation just to look good at inspection time. 

The patients are carefully cleaned, as are the floors and bathrooms. Nursing records are brought up to date, sometimes falsified, to reflect the expected care. Kitchens are stocked with better food, and more of it. 

In three states - California, Florida and Mississippi - fraud units believe the best way to determine what's really happening is to show up unannounced. 

Records show that it was about 3 a.m. when Kenny O'Neal and three other members of Mississippi's fraud unit rousted the security guard at the second nursing home they had visited that night. 

The four agents split up and inspected the quiet nursing units on each of the two floors. Everyone was asleep. Everyone, including five nurse's aides and their supervisor. 

They weren't just napping. They had blankets wrapped around them, and they were snoring. A woman in Room 203 began yelling for help. Her call light at the nursing station had been blinking when the team arrived. None of the staff members was awakened by her screaming. 

One of the investigators went to the room. The frail woman lay naked in the bed, her blanket on the floor. The investigator tucked the blanket around her. She clutched it and fell asleep. 

It was almost 40 minutes before one of the nurses stirred. "Hi, fellows," was all he said when he realized he was being watched. 

The staff had been given orders for six very sick residents to be checked every 20 minutes. Medication had to be given. That hadn't happened. There was no indication that residents had been turned every two hours to avoid bedsores. The charts, which had already been filled out for the entire shift, said everything had been done. 

The six aides were charged with 23 counts of neglect. 

"That was three years ago, and we've not had another home since where we found the staff asleep," O'Neal said. The Mississippi team pulls off similar raids about 15 times a year. 

California's version of the inspection program is called Operation Guardian. 

"Secrecy is the key," said Collin Wong, the California deputy attorney general who oversees the program. "The team doesn't even know where we're going until an hour before the visit, when they're briefed on the violation history and problems of the home." 

Arriving at the same moment, the unique SWAT team - state and local prosecutors, law enforcement, physicians and nurses, financial experts, fire and building inspectors and others - swarm throughout the nursing home. 

As Wong describes it, "Auditors scour the books to ensure that they're not stealing the patients' money. The medical people examine several of the patients to determine whether they're being properly cared for. State nursing inspectors and federal agents scrutinize the medical charts to see if federal care guidelines are being met. 

"It usually takes about six hours, but when we're through we know precisely how good the care is in that nursing home." 

Last year, Operation Guardian referred 55 violations to law enforcement and licensing agencies for additional investigation. 

Florida's program is called Operation Spot-check and has "put the fear of God into the nursing home industry in this state," said Nick Cox, a deputy attorney general. 

In six weeks, Florida's fraud unit inspected 30 nursing homes in Tampa alone. 

"It's not just catching the people, but getting out the word that they can't hide bad care, and it's working," Cox said. "In one nursing home, on the staff bulletin board, was a big photograph of the attorney general. Scrawled above it was 'Be aware. There are eyes on us."' 

Cox observed, "That's exactly what we want them to know."