CdA case spurs elder abuse bills

Lucille Huber is gone now.

But the former nursing home resident is hardly forgotten. Her experiences at Fairwinds Retirement Community not only are the subject of a $3 million court judgment that has yet to be paid, they also helped prompt state legislation to make elder abuse a felony.

A jury awarded Huber more than $3 million in punitive damages in December. Huber, who was in her mid-80s, died earlier this year. Attorneys for Fairwinds and Leisure Care, its parent company, are fighting the verdict.

Meanwhile, the former manager of Fairwinds, Mary Jane Vann, is out on parole after six months in prison following her conviction for grand theft and conspiracy for stealing jewelry and money from Huber when Huber was in her care.

Vann was found guilty of stealing $30,000 in jewelry from Huber and $3,000 from another patient at Fairwinds. Some think the acts might have been prevented had Vann been subjected to an FBI background check. She was fired from Fairwinds in June 2003

Now, a bill in the state Legislature is nearing final approval that would require all employees who have access to vulnerable adults in long-term care facilities to be subjected to FBI background checks. Ironically, Vann was supposed to have the background check as manager of Fairwinds, but didn’t get it, said Ray Kolts, attorney for Huber’s family.

A background check would have uncovered a shoplifting arrest and a battery complaint in Washington state, Kolts said. “It doesn’t mean she’s guilty, but it puts you on notice.”

However, Mike Ramsden, attorney for Fairwinds, said that wouldn’t have made a difference, because Vann became an employee of Leisure Care in 1995 in Montana.

The state of Idaho is hoping to participate in a national pilot program to conduct the background checks. If the legislation is passed, the state will receive about $2.1 million over two years for computers and staff to conduct the checks on all long-term care facility staff members.

The bill is supported by the Idaho Healthcare Association, which represents long-term facilities.

“The writing was on the wall that FBI background checks are going to be required anyway,” said Robert Vande Merwe, director of the association. “This way the federal government will pay for it. … If they’re going to do it somewhere, it might as well be in Idaho.”

On the governor’s desk is a bill that would make elder abuse a felony, instead of a misdemeanor. If passed, the punishment for abusing a vulnerable adult would be up to 10 years in prison and a $25,000 fine. A similar bill makes sexual abuse of vulnerable adults a felony, too.

Partially inspired by Huber, advocates for the elderly say the bills send a significant message to the public.

“It needs to be punishable with a significant amount of time in jail, and a fine to deter others,” said Pat Powell, a legal assistant and one-time caregiver to Huber. “The laws are already there, they just need more teeth to them.”

The Idaho Healthcare Association also supports the elder abuse bill, but Vande Merwe points out that most of the cases happen outside their facilities: “The vast majority of cases of abuse do not happen in a care facility, but happen at home.”

Kolts said the elder abuse law would give prosecutors more options for pursuing criminal complaints.

“It’s terribly important,” he said. In the case against Vann, he said, Kootenai County Prosecutor Bill Douglas “didn’t have a lot of tools to work with. He pretty much did what he could on the criminal side.”

It’s the civil courtroom, however, where Huber’s family is trying to make Fairwinds and Leisure Care pay for the abuse of Huber.

Leisure Care is fighting the $3 million judgment, saying that it would financially ruin the company, said Mike Ramsden, Fairwinds attorney. Kolts has offered to settle, but Ramsden said, “The plaintiffs have never offered to settle on any terms that are economically justifiable or reasonable before or after the verdict.”

A hearing on the motion for a retrial is scheduled for April 14.

Meanwhile, Kolts and other attorneys are concerned about a cap that the Idaho Legislature put on punitive damages in 2003. Huber’s case managed to avoid the cap due to timing of the crimes, but the limit on damages could put a chill on litigating similar cases in the future, they say.

“To a multimillion-dollar company … a $250,000 damage verdict is nothing,” Kolts said. “They can make all sorts of money abusing people and if they get caught, they pay $250,000 and that’s the end of it.”

He and other attorneys also worry that with the cap, few attorneys will be willing to take on difficult cases against well-heeled corporations.

“We spent, in terms of time, over half a million dollars,” he said. “If our ultimate recovery was $250,000, how many cases could we afford to press?”

Attorney Norm Gissel said the cap also leaves protection of the elderly in the hands of the state, which has acknowledged that it doesn’t have the resources currently to keep up with the required annual inspections of nursing homes. Another bill in the Legislature would reduce the number of required inspections.

“The state has replaced itself as the sole gatekeeper and it doesn’t do its job,” Gissell said.