Elder Justice Roundtable: Application of the Forensic Science
Integrating Medical Forensic Evidence With Law Enforcement
Presenter:
Candace Heisler, J.D., Consultant and Trainer, San Francisco District Attorney's Office (Retired)
First Responder:
Charles W. Gambrell, Jr., J.D., Assistant Deputy Attorney General, South Carolina, Attorney General's Office Director
Elder abuse and neglect have been successfully prosecuted in both criminal and civil contexts. Individuals have been held criminally liable for their abusive and neglectful actions against older people in home and institutional settings. Corporations have been deemed liable for allowing residents of long-term care facilities to suffer egregious injury or even death as a result of neglectful care. Medical testimony, however, is critical to ensuring a successful outcome to these cases.
For example, prosecutors need help from physicians to resolve whether an injury is evidence of abuse or neglect, or simply the result of aging, disease, or accident. Prosecutors will rely heavily on medical professionals for diagnosis and identification of injuries, as well as recognition, documentation, and reporting of the conditions found. Law enforcement also needs to know whether medical professionals will provide opinion testimony as to medical causation of the injuries and harm associated with poor care or abusive behavior.
Candace Heisler, a former prosecutor with the San Francisco District Attorney's Office and consultant, said that physician identification of the nature of injuries in an abuse case is critical. She noted that prosecutors need answers to the following questions: "What are we looking at?" "Is it an injury, or is this some sort of result of either aging or a disease process?" The second part of this analysis includes an opinion regarding whether the injury was intentional or whether it was accidental. In other words, is there something about the location, appearance, or type of injury that addresses the intent issue? In terms of neglect, law enforcement will look to medical professionals to answer questions such as whether adequate care was rendered for the victim's medical condition, and whether the resultant harm was proximately caused by the action or inaction of the caregiver.
Charles W. "Bill" Gambrell, director of the South Carolina Attorney General's Medicaid Fraud Control Unit and an assistant deputy attorney general, noted that in prosecuting elder abuse cases, he found there was always a doctor on the other side who testified "there are 10,000 other logical explanations for the bruises that start from the forehead and go down to the shins." "That," he noted, "is why it is so crucial early on to have competent medical advice in these matters." But there often is a general reluctance on the part of doctors to get involved in elder abuse and neglect cases.
In nursing home cases, too often, the responsible owners or operators are not held responsible. Mr. Gambrell opined that the 100-percent conviction rate (in 60 to 70 abuse cases) that his office has amassed in South Carolina during the past 5 years indicates that prosecutors are going after only "the obvious people—nurses and attendants," he said. "I think the people further up the system in facilities—directors of nursing, administrators, the doctors who are responsible for overseeing the care of the individuals in the facilities—have a significant liability."
In South Carolina, as in many parts of the country, police have two problems, said Randolph Thomas, a police officer and law enforcement instructor with the South Carolina Department of Public Safety: finding an emergency room physician who understands trauma generally and abuse specifically; and finding a medical practitioner who will render an opinion, even a nonattributable one. Police often learn of abuse only when a practitioner tells them of suspicious circumstances. However, he said, "The quickest way to clear out a hospital emergency room is to wave a subpoena for a physician."
It is not always necessary for doctors to testify if adequate documentation exists. For example, Dr. Carmel Bitondo Dyer, a geriatrician and associate professor of medicine at Baylor College of Medicine, noted that her department often receives calls from police officers requesting an opinion about whether abuse has occurred, and such opinions often can be rendered based on adequate documentation by attending physicians. The larger problem facing police is that patients often lack the capacity to testify effectively.
In those cases, Candace Heisler, the former assistant district attorney, noted that prosecutors can learn from their experiences in dealing with domestic violence and child abuse cases, in which successful cases are built that "don't rest on the shoulders of the victim." If all the pieces of a case are assembled from the beginning, prosecution can go forward without the victim's participation.
Because of physicians' reluctance to become involved in legal cases, it is important that medical examiners be called early to verify cases of elder abuse, said Dr. William Hauda, a pediatrician, emergency physician, medical examiner, and adult services medical director at the INOVA Fact Center in Falls Church, Virginia. Often, neither a family doctor nor an emergency room physician, both of whom have seen the victim, want to testify "because they earn more money working than they are going to earn in court." It is important, therefore, that the medical examiner actually see the victim, he said, so that the prosecution has an effective witness who can testify from direct observation rather than by relying on medical records.
As in child abuse cases, Dr. Hauda noted, forensic physicians can help investigators plan their approach in elder abuse cases, which should include documenting the case fully when an emergency department finds a suspicious factor and amassing the records and information needed for a case to proceed. The police and adult protective services (APS) should take the initiative in identifying experts who are willing to review cases and examine victims of suspected elder abuse or neglect.
To encourage physician testimony, Dr. Hauda said, it is important to find ways to pay for a physician's time supporting the legal process. In Virginia, a new law makes it possible for a Commonwealth Attorney (city or county prosecutor) to pay a physician to evaluate any victim of any crime.
Several participants expressed the view that there is not a sufficient number of experts in most jurisdictions. Thomas, for example, noted that South Carolina has only three forensic pathologists—a shortage that is not unique. Experts in elder abuse may exist, he said, but "[T]he truth is, law enforcement does not know who they are. We do in child abuse. We have learned that over time. But right now we do not [know the elder abuse experts. . . .] There is no handy-dandy list you reach for at 11 o'clock at night in somebody's home when you need to talk to somebody, nor do we have . . . many level-one trauma centers."
Dr. Erik Lindbloom, a geriatrician and assistant professor of family medicine at the University of Missouri in Columbia, agreed, noting that a pathologist at the University of Missouri, who is an expert in forensic pathology and elder abuse and neglect, took it upon himself to learn some warning signs when he realized no one else in the State seemed to have the expertise or interest.
Since there is a shortage of geriatric physicians, more primary care physicians should be trained in geriatrics, said Dr. Rosalie Wolf, executive director of the University of Massachusetts Memorial healthcare Institute on Aging.
To overcome this dearth of experts, police and prosecutors must develop multidisciplinary teams and find doctors to train members, Gambrell said. Physicians would be less reluctant to testify if a team included a nurse, a social worker, and an APS worker who can help the street police officer and turn the case over to him. The ideal, he said, is to provide guidance so that a physician is not required, even in the courtroom. "I actually have prosecuted cases without doctors as experts," he said, "just because I couldn't get a doctor . . . and have had to rely on another level of medical expertise."
Even though medical professionals may be reluctant to report signs of abuse or neglect, most States have mandatory reporting laws that require a physician to report and possibly begin an investigation, noted Dr. Wendy Wright, a pediatrician at San Diego's Children's Hospital. "It is not my job as a physician to decide the outcome of my report," she said. "That is why there is an investigative process and why there are multidisciplinary teams." While some medical professionals fail to report abuse because they don't want the victim to have to leave home, or they don't want the perpetrator to go to jail, the fact is that by failing to report, they have broken the law and denied the victim the services to which he or she might be entitled.
David Hoffman, assistant U.S. attorney in Philadelphia, added, "I guess we should disabuse people of the notion that somebody is going to jail in every case." There are, he said, civil as well as criminal remedies to stop people from neglecting and abusing older people, especially in institutions, and ways to keep people from acting in a fashion that jeopardizes older people.
A network of elder shelters is beginning to form, but there still are few shelters and little funding, said Dr. Wolf. Some elder victims do not want to be separated from their abusers—their only companions, perhaps, for 50 years or more, and would rather stay than go to a nursing home. More than 60 percent of abusers are family members, noted Joanne Otto, an APS administrator with the Colorado Department of Human Services.
Models for sanctuaries from violence can be found among those for victims of child abuse and domestic violence, said Ann Burgess, professor of psychiatric nursing at the University of Pennsylvania. Elderly victims certainly need shelters, she said, but special efforts must be made to deal with their fear of retaliation from their abusers.
Multidisciplinary Teams
Elder abuse can be investigated and diagnosed best by multidisciplinary teams that include medical practitioners, police, social workers, and a variety of specialists. The specialists can include financial analysts, members of the clergy, and even professionals from such unlikely fields as architecture, all of whom can be called in as needed.
Multidisciplinary teams can be especially effective in assembling and reporting data and in providing the basis for advocacy in seeking support and funding. In sparsely populated areas, the shortage of specialists such as geriatricians and forensic pathologists makes it advisable to concentrate on training and to establish panels of specialists at national and regional levels who can be called on to consult. In addition, the reluctance of general practitioners and emergency room specialists to testify in elder abuse cases hinders prosecution and must be resolved, possibly by arranging for paid testimony.
Multidisciplinary teams have been very effective in several jurisdictions. One team in Pennsylvania has been successful in developing elder abuse cases for intervention and prosecution, said Susan Renz, a nurse and consultant with RS Connection Inc., in West Chester, Pennsylvania. The Pennsylvania Attorney General's office appointed a board 2 years ago that includes prosecutors, detectives, APS workers, nurse practitioners, and geriatricians from throughout the State, as well as a representative from the Department of Health. The board reviews elder abuse cases and has been most productive, she said, in "teasing out" cases to determine if they really have substance—a subject on which there often has been disagreement—and addressing the following questions: "If we're going to proceed, what else do we need to look for? What records do we need to get from the facilities? Whom do we need to interview? Whom do we charge and what do we charge them with? And who do we need as experts?"
Dr. Carmel Dyer said that her multidisciplinary geriatric assessment team diagnoses elderly victims and documents their symptoms. This is under the purview of geriatricians, just as child abuse is under the purview of pediatricians, she said. The team also determines whether deaths were natural or not. "We take care of these people all the time, and we follow them in long-term care," she said. In Houston, her team links the existing geriatric team at the hospital with the APS to form a resource for law enforcement that is spreading throughout the State. She said that the team does not remove patients from home. Of the 100 cases the team handled last year, it sent only 5 people to guardianship. The team makes house calls, monitors patients, and watches for problems that it can prevent, Dr. Dyer noted.
Elder abuse is heterogeneous, noted Dr. Mark Lachs, co-chief of geriatrics and gerontology at Cornell University's Weill Medical College: an Alzheimer's victim who becomes assaultive as part of his syndrome, a stressed-out caregiver who becomes briefly assaultive, an alcoholic beating up an aging parent; spousal abuse by elders. A geriatric assessment or multidisciplinary team, he said, tailors its intervention to the different needs of the alcoholic, the stressed-out caregiver, or the older abuser. Dr. Lachs agreed that the key to this is community partnerships, such as Dr. Dyer described, in which geriatricians, APS, and community service organizations join.
Dr. Catherine Hawes, a gerontologist and professor at Texas A&M's School of Rural Public Health, noted, in investigating abuse in institution, that it is important to have on a team someone who can read cost reports, understand accounting, and look for the structures that cause neglect and abuse in an institution. That way, she said, police and prosecutors can go after a medical director or a director of nursing (not to mention an owner of a nursing or personal-care home) who created the environment in which abuse and neglect was inevitable, given the way they structured resources or incentives.
Dr. Kerry Burnight, a gerontologist and assistant clinical professor at the University of California-Irvine's College of Medicine, described another successful multidisciplinary team, which also includes Dr. Mosqueda. Drs. Burnight and Mosqueda's team has funding from the Archstone Foundation for a 3-year project, and it has used the same model as Dr. Dyer's team. Also, Dr. Burnight said, her team tailors interventions in the way described by Dr. Lachs. The key players are a medical doctor, a psychologist (important in addressing capacity and undue influence), someone to address financial issues as outlined by Dr. Hawes, a social worker (important for interaction with the social workers in APS), and a gerontologist to keep track of data and evaluate activities.
Close partnerships with the police and sheriff, with the district attorney, and with the legal community also are important, Dr. Burnight said. Such partnerships are important in selecting cases and deciding what steps are appropriate—especially important because many calls can be handled with an e-mail or telephone conversation. It also is very useful for the entire team to meet regularly and review cases.
Several medical specialties can be useful on multidisciplinary teams, noted Dr. Patricia McFeeley, assistant chief medical investigator at the University of New Mexico. As with child abuse cases, a forensic pathologist may be able to identify indications of abuse better than a general practitioner, and other aspects of forensic medicine also can be useful. An odontologist can decide whether a wound is a bite mark and see whether the bite mark matches any particular biter. In sex crimes, DNA can be used to identify perpetrators.
Mr. Hoffman asked whether including pathologists in multidisciplinary teams would overcome a reluctance he finds in suburban and rural areas to perform autopsies on older people. Dr. Ian Hood, deputy medical examiner in the Philadelphia Medical Examiner's Office, and Dr. McFeeley have served on such teams. Dr. Hood noted that both feel they have been useful. Frequently, he commented, forensic pathologists are the best witnesses because they are accustomed to testifying. Even though a family practitioner may see a case and dutifully report it, he or she might not handle cross-examination as well as a forensic pathologist.
In response to a question from Dr. Laura Mosqueda, director of geriatrics and associate clinical professor of family medicine, U.C.I. Medical Center, participants identified the necessary core members of successful multidisciplinary teams.
At a clinic in Florida, said Dr. Carl Eisdorfer, a professor with the University of Miami's Department of Psychiatry and Behavioral Sciences, "we always include a neurologist and a psychiatrist." At a project in Seattle, an architect was included to deal with structural changes that might be necessary as a result of patients' falls. He said that a Veterans' Administration project he runs uses both experts in geriatric medicine and geriatric psychiatry. The latest data on that multidisciplinary team, he said, indicate that it may save money, since early detection of depression and cognitive disability changes the nature of medical and, often, surgical care.
Dr. Dyer specified that a core team should include a "doctor, nurse, social worker—those are already well-established, the traditional members of interdisciplinary teams—and an APS specialist. Absolutely." And Dr. Gregory Paveza, an associate professor at the University of South Florida's School of Social Work, added that it should include a law enforcement officer and an attorney, preferably a prosecutor.
To address financial exploitation, Dr. Wolf said, "you really need somebody on that team who represents financial planning and the whole financial picture." A few States require a multidisciplinary team that meets at the insistence of the APS supervisor. In Illinois, she added, a member of the clergy is included on the team.
There are many models of multidisciplinary teams, ranging from an APS unit that sends a nurse and a police officer to investigate cases, in which it appears their expertise will be needed from the start, to a 50-person fiduciary abuse specialist team in Los Angeles, noted Lisa Nerenberg, a consultant in private practice in Redwood City, California. Clearly, she said, large teams are pulled together not to discuss individual cases—although they often do—but to develop and exert expertise. The Los Angeles team, she said, was one of the first groups to raise the connection between physical abuse and financial motive. When a large number of people join a team, she said, they start to make this sort of connection and to create specialized expertise.
Her own team really turned a corner, Ms. Nerenberg said, when Ms. Heisler came to a meeting to discuss a case she was going to prosecute. She spoke with social service workers and medical people, as well as other specialists, "telling us what she had to prove, saying, `these are the elements of a crime, these are the standards that I need to reach.' It got people thinking very differently. They became partners in a process."
Dr. Mosqueda serves on both the Los Angeles and Orange County (California) fiduciary abuse teams and agreed that these teams "get huge." But, she said, their purpose is not merely to identify financially inspired abuse. "We educate each other very much," she said, "and part of the reason the team is so huge is because everybody wants to learn more about it."
Forming a national forensic center with related regional centers might be helpful in assuring the availability of experts, said Marie-Therese Connolly, coordinator of the U.S. Department of Justice Nursing Home Initiative in Washington, D.C. Dr. Lachs agreed that national or regional forensic centers are a good idea and noted the critical shortage of geriatricians, who are necessary for successful teams. In rural areas, especially, he said, there will have to be some sort of forensic center infrastructure. These should be at the State or regional level and include specialist teams to handle cases in small jurisdictions.
In rural areas, Dr. Lindbloom said, members of the clergy and community leaders should be included in teams to help professionals understand issues that patients and family members might face at home.
Telemedicine may offer another solution, said Dr. Arthur Sanders, a professor of emergency medicine at the University of Arizona in Tucson. A team does not have to be sitting in the same room. A geriatrician must be involved, but local physicians could make home visits and then get advice on how to proceed from such experts as Dr. Dyer or Dr. Lachs.
