Neglected: Florida nursing home workers avoid criminal charges in neglect, abuse deaths

More than a year after a criminal investigation began into the deaths of 12 patients left in the sweltering heat of a Hollywood nursing home, no one has been charged with a crime.

None of the Rehabilitation Center at Hollywood Hills’ staff members have been charged for failing to evacuate the nursing home's residents across the street to a hospital after Hurricane Irma knocked out the air conditioning. This despite a state review that found the staff responsible for the deaths. 

And that's the norm in Florida, where nursing home managers and staff avoid criminal charges despite state reviews that find credible evidence they caused the deaths of patients, a USA TODAY NETWORK - FLORIDA investigation found.

As part of its investigation, the Network reviewed every death from 2013 through 2017 in which the Florida Department of Children and Families determined there was sufficient evidence that a nursing home patient’s death was due to staff neglect or mistreatment.

Special report:Even when staffs cause patient deaths, Florida nursing homes face few penalties

The state identified 54 deaths during the period, including the 12 at Hollywood Hills, caused by nursing home neglect or mistreatment. None of the cases resulted in an arrest or prosecution, the Network found.

Cynthia Schuster, a frail 75-year-old woman who relied on a wheelchair, died in 2016 after two nursing assistants dropped her and then covered up how they injured her, not telling anyone what they did.

The assistants at Clermont Health and Rehabilitation Center were transferring Schuster from a wheelchair to a bed when they dropped Schuster on her knees, breaking five of the six bones in her legs. 

The assistants didn't alert a supervisor, didn't file a report and didn't tell anyone. Instead, they picked Schuster up from the floor, placed her broken body in bed as if nothing had happened, and agreed not to tell anyone, according to a state death review from the Department of Children and Families.

Schuster, who had dementia and couldn't talk, suffered in silence. The next day, nursing home workers who were unaware of her injuries got her out of bed, dressed her and put her in a wheelchair where she sat unattended for eight hours, according to the state review.

As Schuster became lethargic, pale and clammy, a nursing home staff member noticed something was wrong. Her breathing became fast and labored, and three hours later an ambulance took her to a hospital, according to reports obtained by the Network.

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Doctors at the hospital soon discovered Schuster's badly bruised body and broken bones. The staff denied knowing anything about how Schuster was injured when questioned by DCF and Agency for Health Care Administration investigators. Several days later, one of the nursing assistants came to the nursing home with her pastor and admitted to dropping Schuster.

Schuster died a month later in hospice from complications of multiple lower extremity fractures due to a fall, according to a medical examiner report. The state's review of the death determined Schuster died due to neglect and inadequate supervision.

No charges were filed in the case, and the nursing assistants have no blemishes on their licenses, state and law enforcement records show. 

Although police recommended charging the assistants with manslaughter and criminal neglect, Hugh Bass, a Lake County homicide prosecutor, declined to pursue charges, arguing the case was better suited for civil court.

“I found a very, very minimal probability of conviction, if any, given the accidental death finding of the medical examiner,” Bass said.

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Stephen Nelson, chair of the Florida Medical Examiners Commission and chief medical examiner for Florida's 10th Judicial Circuit, called Bass' reasoning a “cop-out.”

Prosecutors regularly pursue charges in motor vehicle crashes involving alcohol, even though they’re almost always classified as accidents, he said in an interview.  

“They clearly can prosecute it as a homicide if that’s what they want to do,” Nelson said.

Nursing home neglect cases are not the kind of cases most prosecutors are inclined to pursue, said Bobbi Flowers, co-director of the Center for Excellence in Elder Law at Stetson University.

They can be difficult to identify and to prove, she said, and it can be hard to convince a jury that an elderly person’s death was due to neglect and not just advanced age.

Circumstances that would raise suspicions about a younger victim’s death are easier to explain away if the victim is elderly, Flowers said.

The Malcolm Luckin case is an example, Flowers said.

Luckin, 67, had fallen numerous times in the nine weeks he was a patient at Palm Garden of Jacksonville and was at risk for falling again, according to the state report. But after his last fall, resulting in his death, staff at the nursing home told authorities he intentionally threw himself to the floor in a suicide attempt, according to sheriff's office and medical examiner records.

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The state death review concluded he wasn’t adequately supervised given his propensity to fall. The nursing home's owners, in an ongoing lawsuit, have denied the allegation.

“If it wasn’t a nursing home and they were thrown off a bed or they fell off a bed repeatedly, there would be nobody in this world that would say, ‘Oh that’s a suicide,’ ” Flowers said. "They would be (saying), ‘Oh, that’s weird. Somebody needs to investigate that.’

“But once you get gray hair and then once you are in a long-term care facility, suddenly all those issues are so simple."

Nursing home neglect cases require the highest burden of proof, beyond a reasonable doubt, said Justin Keen, an assistant U.S.attorney and former prosecutor in Brevard County’s elder crimes unit.

“We all may know what happened, but it’s not what you know, it’s what you can prove,” he said.

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That hasn’t stopped caregivers from being charged in other states. This year, nurses have been charged related to nursing home deaths in at least four states: Oklahoma, Pennsylvania, Illinois and Georgia, according to media reports.

The most high-profile of these was the nurse charged with neglect and involuntary manslaughter after the death of the 84-year-old father of H.R. McMaster, President Donald Trump's former national security adviser. The nurse is accused of failing to administer required neurological checks after McMaster's father fell.

In February, three Georgia nursing home workers were charged after being accused of repeatedly ignoring a patient's pleas for help during respiratory distress, which led to the World War II veteran's death. One of the workers, a licensed nurse, was charged with murder and neglect, another worker with depriving an elderly person essential services and the third with elder neglect.

More:Family disputes that Malcolm Luckin's fall was suicide at Palm Garden of Jacksonville

The arrests were made after a 4-year-old video of the incident was made public in a civil lawsuit. 

Bill Dean, a former Miami-Dade prosecutor who now specializes in suing nursing homes, said most Florida prosecutors don’t have the training, resources or inclination to go after nursing home neglect cases. They’d rather go after cases they know they can win.

“They don’t know how to do it,” he said. “They don’t want to do it. They don’t have time to do it."

That was the case in San Diego back in the mid-1990s, when deputy district attorney Paul Greenwood was told by his boss to lead a new team focusing on elder abuse. At the time, Greenwood said, his office wasn’t prosecuting many elder abuse cases, in part because police weren’t investigating them.

Greenwood said he met with all the police departments in the area and begged for cases.

“I said, ‘Look, I need you to bring me cases,’ ” he recalled. “And they said, ‘Well, do you really want to handle a case where the victim is like, 90?’ And I said, ‘Yes I do. Give them to me.’ ”

More:John Gentile struggled to breathe, died after less than a day at Palm Garden of Aventura

Greenwood prosecuted elder abuse cases for 22 years before retiring earlier this year. He now works as a consultant educating police and prosecutors around the country on pursuing such cases.

One problem, he said, is police and prosecutors often falsely believe that older people make bad witnesses. Many jurors, however, are highly sympathetic toward them, he said, which helps to win these cases.

“What it takes is, within a certain office to get one prosecutor who believes in these cases, who believes they can be prosecuted, to light a fire within their own office and within their own community,” Greenwood said.

“If that happens, then good things happen.”

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