Elder Care Information

PART I: Physical Abuse of the Elderly vs. Tennessee DHS Abuse of Families

During the week of October 26, 2003, newspapers across the state of Tennessee published an Associated Press story that featured the glaring news headline, "Reports of neglect and abuse of senior citizens up 40% in six years." The second sentence of the story indicated the Tennessee Department of Human Services' (DHS) Division of Protective Services has a staff of only 83 to cover Tennessee's 95 counties. Juxtaposed this way, the Associated Press story implied that abuse of the elderly in Tennessee is growing, the state has far too few resources devoted to the problem, and by implication the state needs to rearrange its priorities and spend more, much more, on adult protective services.

This perspective was echoed by state Rep. David Shephard, D-Dickson, who was quoted in the article as saying, "We are looking at a problem that is going to get bigger as medical advances continue and people live longer." State Rep. Dennis Ferguson, D-Kingston, who chairs the House Health and Human Resources Committee, shifted the focus to preventing fraud perpetrated on the elderly: "A lot of time people are getting old and they don't have a family and people take advantage of that. They go over and say 'We want to help you' and the first thing you know is they have their checking account and run through their money."

While it is true that fraud and other scams perpetrated against the elderly is a serious and growing national problem, the extent of physical abuse and neglect of the elderly in Tennessee needs further scrutiny. The source of the Associated Press's "40% increase" figure is none other than the Tennessee DHS. After reviewing how DHS classifies complaints, reasonable people may conclude that DHS is not properly closing its cases.

In the spirit of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), The Tennessee Law Times has constructed the following composite scenario based on actual cases that we have investigated and verified are true. This composite scenario respects the privacy rights of both medical patients and DHS staff, who may not want to be identified by name. The paper recognizes that some DHS staff may have been directed to take actions that violated their own sense of ethical standards and fair play.

Composite Case. An elderly patient with a broken hip was placed in a nursing home to recuperate following his hip repair surgery. The orthopedic surgeon initially places orders for nurses that the patient should not place weight on the leg associated with the repaired hip. Over time the surgeon changes the orders to allow 25% weight bearing, then 50% weight bearing, as the bone heals and the patient needs more physical therapy. Eventually, the surgeon is to allow full weight bearing on the leg with the repaired hip.

Through negligence of the nursing home, the patient is not brought to the surgeon for a scheduled follow-up appointment. Consequently, the surgeon's 50% weight-bearing instruction is left on the patient's chart long after the doctor's order has become stale and the patient is seen walking on his own without assistance using both legs.

A family member visits the patient in the nursing home and helps him walk by providing assistance with his arm. A physical therapist at the nursing home and his assistant witness the patient walking with the family member, and they claim the family member was encouraging the patient to put full weight on his leg. The following day a social worker at the nursing home phones in a complaint to the Tennessee DHS Adult Protective Services unit. One might expect the over-worked and stressed DHS staff would quickly surmise that the patient is walking on his own, that the doctor's orders are stale, and that a family member's assisting the patient to walk certainly does not constitute physical abuse.

Indicated Abuser. Wrong! In actual cases, DHS's Adult Protective Services unit initially labels the family member as an "accused" physical abuser of the elderly patient. The fact that more than one witness observes the alleged "abuse" automatically transforms the status of the family member from "accused" to "indicated" abuser, in DHS terminology. Meanwhile, the family member has no due process rights to learn the identity of the nursing home staff members who filed a complaint or even learn the circumstances of what they allege to DHS has occurred.

When the family member explains to DHS's Adult Protective Services staff that the medical orders are stale, that the patient is walking on his own, that he merely provided a guiding arm to assist the patient who walked on his own, the DHS staff refuses to close the case. They continue their investigation and try to seek medical records on the patient from other doctors to seek evidence of physical abuse reported anywhere by anyone. No evidence of abuse is found after contacting multiple doctors, and still DHS will not close its investigation.

Stale Medical Orders. The family member, who is also healthcare attorney in fact for the patient, orders that the patient be brought to the surgeon's office, using an ambulance at Medicare's expense as the bureaucracy requires. The surgeon observes the patient walking and promptly corrects his now stale medical orders for the physical therapist to allow the patient to place full weight on the repaired hip and leg. This change in medical orders within a few days of the complaint being filed with DHS's Adult Protective Services, thereby suggesting that the patient has been able to have full use of his leg for days. But still DHS will not close its investigation.

Text Box: The fact that more than one witness observes the alleged "abuse" automatically transforms the status of the family member from "accused" to "indicated" abuser, in DHS terminology. Meanwhile, the family member has no due process rights to learn the identity of the nursing home staff members who filed a complaint or even learn the circumstances of what they allege to DHS has occurred.

Within a week, the family member discharges the patient from the nursing home and brings him home. DHS insists on conducting a home study visit, afterwards concluding that the family member is providing "excellent care" for the senior citizen. But still DHS will not close its investigation. DHS wants assurance that the former patient will not live alone, but the family is not prepared to offer such a blanket guarantee until they can observe how well the patient adjusts to living at home. For two months, DHS continues to call the patient's home and calls relatives living out of state to learn whether the patient will be living with family members.

Stroke Risk With Nursing Home Negligence. As an interesting footnote to this story, a social worker at the nursing home told the family member that in her professional opinion, the patient was so mentally impaired that he needed 24-hour assisted living care of the kind provided in their nursing home. But the nursing home in fact provided grossly negligent care. A nurse practitioner at the nursing home unilaterally took the patient, who has atrial fibrillation, off a life-sustaining drug, Coumadin, in violation of doctors' orders. For patients with atrial fibrillation, the absence of Coumadin increases the risk of stroke on a logarithmic scale.

The result was that this patient had an increased risk of developing a blood clot and stroke that was 5 times the normal risk: not a 5% increase in risk, a 500% increase in risk that went on for six weeks until the family member detected the negligence. When the family member told the social worker that under no circumstances would his father be left in the nursing home, the social worker retaliated a day later by phoning in a complaint of patient abuse to the DHS Adult Protective Services. In its defense, the nursing home stated the timing of the complaint was just a coincidence.

One would think that DHS staff could look into the motives of those alleging abuse to see if they were trying to confine the patient indefinitely to the nursing home against his will and also question whether there had been any animosity or retaliation of the nursing home staff directed at the family member. But DHS staff did not evince any deductive reasoning. Instead DHS Adult Protective Services staff viewed all doctors' orders as black and white. They could not conceive of orders becoming stale. DHS staff also stated that doctors' orders apply not only to nurses and physical therapists, but also to lawyers, family members, and visitors. According to DHS, doctors have a right to order lawyers, family members, and visitors how to care for a patient.

Informed Consent. DHS staff failed to recognize the basic elements of the legal relationship between doctor and patient, e.g., any patient has a right to fire a doctor she feels is not properly treating her, or patients could challenge any doctor's orders by seeking a second opinion from another doctor. More important, even without benefit of a second medical opinion, a patient and her health care attorney have a right to listen to a doctor's advice and reject it. That is what the legal doctrine of informed consent is all about.

Yet DHS acted as if they have a right to supersede the wishes of an elderly citizen and decide for him what is best for him to live the remaining years of his life. DHS intruded into the family's peace and care for their elderly parent and would not back off when ordered to close the case by the patient, by his educated and articulate health care attorney in fact, and by other family members. DHS knew that it could not prevail in court in such a case. Yet DHS continued to harass the patient's family and repeatedly refused to rule out the possibility that DHS would use the police powers of the state to place the patient in a nursing home against his will.

This case was an enormous waste of the taxpayer's resources, and the only good DHS accomplished was to recommend that family members install handicapped bars on the complete circumference of the patient's shower room at home. Once DHS begins an investigation, the citizens and taxpayers have no oversight. DHS thus spends as much time and resources as it chooses on any given case. The state legislators imposed specific guidelines requiring DHS to close obvious cases of non-abuse within a week or two.

Standard for Imminent Harm. These guidelines require DHS to cease prosecution of cases in which a subject cannot be shown to face imminent risk of harm. But DHS routinely ignores this legislative constraint and, in the several cases presented to The Tennessee Law Times, has stretched trivial cases into investigations taking several months. Consequently, DHS' Adult Protective Services has expropriated for itself absolute power to prolong its investigations and snoop around at the taxpayers' expense. As the British historian Lord Acton once said, "Absolute power corrupts absolutely."

Legislative Oversight Failures. A number of state legislators are to blame for the continuing lack of oversight over DHS's overreaching behavior. For many years, state Rep. Joe Armstrong (D - Knoxville) formerly chaired the House Health and Human Services Committee. Armstrong continuously refused to allow the family member or the 79-year old patient to testify before his committee on DHS's overreaching behavior with its Adult Protective Services. On six separate occasions, Armstrong rebuffed the family's offer. Perhaps Armstrong did not want to hear direct criticism of DHS by highly articulate and educated witnesses, or perhaps Armstrong was embarrassed that a patient labeled by a licensed Tennessee nursing home social worker as so mentally impaired he required 24-hour nursing home care would indeed have the mental capacity to testify before a committee of the Tennessee General Assembly.

Similarly, state Rep. Dennis Ferguson (D - Kingston), the current chair of the committee, wrote to the patient's family that then DHS Commissioner Angela Metcalf said her department's staff did not engage in overreaching behavior. Ferguson was satisfied to take Metcalf's word for it (over the objections of several of his own constituents in Roane County).

In contrast, a number of state senators advised the patient's family that they had received numerous complaints about overreaching and overbearing behavior by Adult Protective Services staff. In a subsequent article, The Tennessee Law Times would like to highlight the positive changes in oversight, if any, that these legislators will implement with respect to DHS.

Mildred Yarberry Case. Regrettably, this composite true story is not an isolated case of DHS overreaching behavior. In the Mildred Yarberry case reprinted in the section on trial court opinions, a courageous Knox County chancellor stood up to DHS violations of their own governing statutes for protective services and ordered DHS to release a senior citizen that DHS had seized and placed in a nursing home against her will. The facts in this case are stated clearly in the chancellor's opinion. Two points deserve special mention.

First, in this case DHS unquestionably encountered living conditions in the patient's home that most readers would find appalling: roach infestation, rotten food in the refrigerator and on the front porch, unsanitary bathroom, living areas in various states of disarray. However, neither the readers nor DHS has the right to say in what level of cleanliness a senior citizen in Tennessee must live or that a citizen of Tennessee must, in the final year of her life, give up the only home she has known.

Second, although DHS professed to have "good intentions" towards Mildred Yarberry, they seized her against her will and without any warning, they confined her in a nursing home against her will, and DHS adopted the attitude that Mildred Yarberry, like so many of the other helpless victims of DHS overreaching behavior, was mentally impaired and therefore whatever she stated that she wanted could be legitimately ignored. DHS did not respect the "risk of imminent harm" statutory obligation in this case, nor do they respect that obligation in other cases they are investigating at the present time.

Felt Confined to a Prison. Mildred Yarberry said that she felt she was in a prison while confined against her will in the nursing home, but DHS did not care. Her elderly brother pleaded with the court to let her sister return home and said he would do what he could to assure she was well, but DHS was not moved by the wishes of family members or next of kin. Mildred Yarberry went into deep depression at the nursing home and had given up on life, but DHS was content to have her die in the nursing home prematurely rather than let her live out her life as she desired: in her own home.

DHS Leaves Patient Penniless. Readers should put themselves in the place of Mildred Yarberry. Suppose you are aware your mind is failing, although you may not be aware of the extent of your own limitations. DHS seizes you against your will and confines you to a nursing home. DHS seizes your social security checks and every possible source of income you have. You are trapped. You do even have the money to pay for a taxi ride back home. You do not know who to call for assistance; you are helpless. In all likelihood, DHS will attempt to take ownership of your house, sell it, and use the proceeds to pay for the $120/night cost of the nursing home, which you do not want. You will lose your home and all your possessions - all in the name of doing what is best for you. Under those circumstances, it is clear why patients seized by DHS feel they have been robbed of every cent they own and why families feel DHS is burdening them with nursing home bills that could drive them into bankruptcy.

Get Houses Cleaned. The state legislature needs to equip DHS and its Adult Protective Services unit with more assistance to those in need and less draconian solutions. DHS should be able to arrange for "meals on wheels" to be brought to people who cannot cook for themselves. Instead of seizing an elderly person in an unclean house, DHS should arrange for the house to be cleaned. It comes down to whether Tennessee is going to respect the dignity of each individual or continue to threaten and force elderly people into nursing homes against their will.

Dr. Michael A. S. Guth, Ph.D., J.D., is a legal brief writer and law newspaper Editor-in-Chief. He writes a variety of articles on constitutional law, elder care, consumer credit card debt, appellate court term reviews, and law and society. See http://riskmgmt.biz/ for an introduction to his legal work, and http://riskmgmt.biz/lawarticles.htm for a listing of many of his articles. Dr. Guth writes legal articles and briefs for other law firms, and he assists pro se parties (those without a lawyer) in preparing documents they can file in court such as motions pertaining to child custody, visitation interference, and child support defense.