Louisiana’s “Reasonable Standard” of Elder Care

and “Probable Cause” of Criminal Negligence[1]

ABSTRACT: Absent obvious force or violence, there is no “probable cause” to charge care providers with the homicide of a care recipient. Hence, care providers are effectively immune from criminal liability otherwise arising from the deaths of elders in their custody, regardless of prior protective agreements or warning.

Statutory Definitions

“False imprisonment” is the intentional confinement or detention of another, without his consent and without proper legal authority (RS 14§46).

“Abandonment” is the desertion or willful forsaking of an adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody (RS 14§403.2. B (1)).

“Isolation” includes intentional acts committed for the purpose of preventing, and which do serve to prevent, an adult from having contact with family, friends, or concerned persons [and] intentional acts committed to prevent an adult from receiving his mail or telephone calls (RS 14§403.2 B (7.1)).

“Abuse” is the infliction of … injury on an adult by other parties, including … such means as… abandonment [or] isolation… to such an extent that his health, self-determination, or emotional well-being is endangered (RS 14§403.2. B (1.1)).

“Neglect” is the failure, by a caregiver responsible for an adult's care or by other parties, to provide the proper or necessary support or medical, surgical, or any other care necessary for his well-being (RS 14§403.2 B (8)).

“Criminal Negligence” exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances (RS 14§12).

“Cruelty to the Infirm” is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirm, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility (RS 14§93.3).

“Negligent Homicide” is the killing of a human being by criminal negligence. The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence. (RS 14§32)

Summary of the Circumstances Preceding August Baxter’s Drowning

August C. Baxter (“August”) drowned[A], March 18, 2005, while in the custody of a contractual[B] caregiver, Senneca Peters (“Senneca”) of New York. August had suffered two strokes in 1997 leaving him with permanent impairments for which he was diagnosed with dementia[2] and depression and later interdicted on grounds that his mental capacity had deteriorated to that of “a two-year-old”[C][3]. Senneca was engaged to reside with him to provide elder care presented to be “Level II” skilled nursing. Under Senneca’s care, August experienced a number of health crises appearing to result from her inattentiveness and inadequate supervision. In one example, the VA medical staff, which monitored his health, found that his blood thinning medication had been so incorrectly administered as to place him at dangerously elevated risk of a stroke. The VA staff was frequently unable to reach the caregiver by telephone to discuss and correct such problems but could only leave messages. Additionally, Senneca missed numerous medical appointments and failed in every respect, without exception, to consistently provide any service described in her purported contract. On several occasions the city police retrieved August from places he had been allowed to reach by wandering along a busy highway.

August’s family and friends faithfully reported their concerns for his welfare to the appropriate authorities over a period of years. Those concerns were invariably dismissed as being “a civil matter”. The concerned persons were generally not permitted to visit August or have a private conversation and had no legal authority to intervene in his care. Nor did Senneca allow August to communicate with an Advocacy Center attorney[D][4]. His caregivers had disconnected August’s long-distance telephone service and falsely informed the VA medical staff that his sons lived out-of-state while Senneca’s contract provided that “she shall have full authority over visitors, hours of visitation, dates of visitation by any and all who should visit... She may grant or refuse visitation and travel as she deems in the best interest of Col. Baxter" without regard to his own wishes[5].

In what proved to be the final attempt to remedy the situation, August’s brother, Harry R. Baxter (“Dr. Baxter”), a physician, wrote[E] to the director of the State’s Elderly Protective Services (“EPS”) faithfully reporting his personal observations of August’s on-going methodical psychological abuse, financial exploitation and physical neglect together with his immediate and very urgent welfare concerns for which he begged immediate intervention[6].

The EPS contradicted, discounted or ignored most of Dr. Baxter’s mandatory report noting[F] such things as: “Elder eats a good diet, he has been seen by a home health agency for almost one year, the home health agency has not reported any problems with his care.”

In marked contrast to the EPS investigator’s opinions, August’s medical records show he was more than twenty pounds underweight, had lost fourteen pounds in five months and was at least somewhat malnourished. He was seen by the home health agency nurse only once every two months and her notes record her observations that:

“Patient is being left alone frequently. Patient is in danger of walking off and becoming lost.” “Potential for injury high.” “Periods of confusion [during which August] wanders about.” “Patient is ... prone to wandering episode. His back yard empties into Cane River and [caregivers] not always able to watch him 100% and potential for fall and safety hazard high.”

The nurse noted the caregivers’ “lack of knowledge and care needed for patient” but her records show no progress was made toward any goals she had set for their education. The caregivers were not always home on the occasion of her visits.

Similarly, the VA records note August’s “Self-care Deficit; Home Safety [concern]; High Risk for injury”, “Results of Morse Fall scale: Total = 55 (A score greater than 45 indicates the subject is at risk for falls)”, and that Senneca “does not appear to realize effects of dementia.”

It is therefore obvious the EPS investigator had not actually consulted the nurse but merely trusted the caregivers to repeat to him any concerns she had expressed to them. Indeed, the EPS report indicates that “evidence supporting (or refuting) need for protective services” consisted only of “statements from the reporter, Mr. Baxter, Eric Peters and Robert Lewis and visual observation by this investigator” to the exclusion of any “collateral contacts” and without an “investigation assessment”. It appears the State is rather poorly equipped to assess matters of elder neglect.

However, the EPS did confirm that: “Elder is left alone for short periods of time, usually no more than one hour[7].” “The elder has been making what some would call suicidal comments…[8].” “High risk of harm”. “Rated as high risk only because perpetrators[9] live with the elder.”

Despite its own opinion, the EPS did not seek a court order to enjoin against further perpetration of August’s endangerment or otherwise act to secure his safety but opted to effect a “Tentative Plan To Protect Adult: Elder's caregivers and curator have agreed to adjust schedules so that the elder is never alone.” That is, the caregivers agreed to accommodate an inconvenient duty for which they had been accepting payment for several years to perform. The EPS then informed[G] Dr. Baxter it had “no other legal authority to pursue this case any further.” Apart from circumventing any possibility of the court’s protection by accepting an agreement that was immediately breached, no “protective services [were] provided by the adult protection agency”[10] as the legislature intended should be done under such circumstances. And so, eighteen days later, August’s drowned body was retrieved from the shallow water of the lake behind his home.

Summary of the Investigative Disposition of August Baxter’s Drowning

Senneca and her husband reported[H] they had been unaware of August’s whereabouts for more than twelve hours prior to noticing his absence and could not account for his activities in the interim.

The Natchitoches Police Department Criminal Investigations Detective’s statement[11] of March 30, 2005 recounts:

"On May 11, 2005, I received a fax from [forensic pathologist] Dr. McCormick’s office indicating the cause of death as drowning. It gave no indication that the drowning was forcible, nor did it give any indication of violent injuries[12].”

“[Parish Coroner] Dr. Charles Curtis determined[13] that the drowning was accidental or suicide. After interviewing Mr. and Mrs. Eric Peters surveying the residence of Mr. Baxter, and receiving statements from several concerned citizens I found no evidence that would lead to probable cause to charge anyone with a crime."

Senneca’s Contractual Obligations

While completely superfluous considering the statutory duties[14] incumbent upon caregivers, Senneca’s contract did acknowledge that:

She “is responsible for the care and safety of [August] on a day-to-day basis. She is responsible to exercise prudent oversight over his activities” and “address issues of safety at the household [sic] in order to provide a safe environment as ordinary reason would suggest both in the home as well as on the grounds.” “Suitable alternative care may be obtained” by Senneca in the event of her necessary absence.

Analysis and Discussion

Matching fact to law, it is alleged and uncontroverted that:

Senneca and her uncle, Robert Lewis (“Robert”), August’s putative attorney-in-fact, conspired to control and did control August’s “visitation and travel” committing the statutory offenses of isolation and false imprisonment effecting the exclusion of any alternative circumstances.

An EPS investigator determined that it was necessary for August’s well-being and proper care that his caregivers “adjust schedules so that the elder is never alone” which they agreed yet failed to do.

In dereliction of both her contractual and statutory obligations, in plain disregard of a specific protective agreement made in the vital interest of August’s welfare, which reasonably careful persons under like circumstances would maintain, and in remedy of prior neglect thereof, Senneca, Robert and the EPS, exclusively responsible for August’s care, failed to provide the proper support and other care necessary for August’s well-being and were therefore criminally negligent and committed cruelty to an infirm person.

As a matter of law[15], the circumstances of August’s death, involving substantial statutory violations, unequivocally constitute “presumptive evidence of [criminal] negligence” and so establish a legal presumption that his consequent drowning was a negligent homicide yet, quite inconsistently, the State “found no evidence that would lead to probable cause to charge anyone with a crime.”

The detective’s off-handed disposition of August’s death being entirely satisfactory to the State[16], this prevailing evidentiary policy regularly operates to excuse caregivers from being held to any minimal standard of care to protect elders from preventable harm even when serious injury follows directly from a willful breach of a specific protective agreement. The implication is that, in stark contrast to that of minor children, the fatal neglect of dependent elders, even of those known to be demented, interdicted and officially recognized to be at “high risk of harm”, does not normally warrant the State’s attention or criminal consideration.

We have no way to discover how frequently the negligent deaths of dependent elders are dismissed as accidents or otherwise overlooked but, as August’s situation and the circumstances surrounding his death are certainly far more typical than those of St. Rita’s residents, it is natural to suppose that cases more compelling than St. Rita’s are routinely ignored. According to Loyola University law professor Dane Ciolino, “...most cases of negligent homicide aren't prosecuted criminally, they're dealt with in the civil courts"[17], which is to say the appropriate criminal law is seldom enforced. But an elder’s care provider who reflects only upon his civil liability subordinates the elder’s welfare interests to his own financial self-interest reducing his decision making to blameless gambling with another’s frail life. If criminal culpability does not regularly attach to acts of negligence and negligent homicide through some familiar rhyme or reason then such criminal statutes as “Cruelty to the Infirm” can achieve little of their intended purpose to deter elder neglect and abuse.

However, the detective investigating August’s drowning did not state that he found it inconvenient to make a criminal charge, rather he stated precisely that he “found no evidence that would lead to probable cause to charge anyone with a crime.” We believe this peremptory policy of “not finding”, or rather “not looking”, is very seriously mistaken and obstructs procedural justice in that it deprives the class of vulnerable elders of the constitutionally guaranteed equal protection which criminal statutes are conceived to afford as a deterrent to elder neglect.

Following a vigorous and highly publicized prosecution, St. Rita’s defendants were acquitted. The trial jury’s apparent reasons for acquittal[18] would not have worked in mitigation had the prosecution shown the defendants applied “force” or “violence”[19] directly contributing to the deaths or characterizing their prior treatment of the residents. But force and violence are not elements of negligence and it is therefore a consequence of Louisiana’s investigative policy that, absent obvious force or violence, care providers are effectively immune from criminal liability that would otherwise arise from the deaths of elders in their custody. Hence, care providers cannot be validly charged with the negligent homicide of a care recipient, regardless of any prior agreement or warning.

[1] Excerpt from CNN journalist Anderson Cooper’s interview of Attorney General Foti regarding the state’s prosecution St. Rita’s Nursing Home owners for the negligent homicide of disabled elders who drowned while in the owner’s professional care (aired September 13, 2005 - 19:00 ET).

AG FOTI: It's negligent homicide, not involuntary homicide… You know, there's a standard of care. I'm not saying anything about they're not good people. But you have a duty of care that reasonable people have to do when they are responsible for other people's lives. It's sort of like you being a trustee. You have to act in the most conservative manner to make sure you preserve life…I'm sorry. I don't think they took enough precaution. But obviously, that's to be -- we thought we had probable cause. That's the initial -- make sure we have probable cause. We took an arrest warrant to a judge in St. Bernard Parish and he read it and signified that we had probable cause to institute these charges. Now, what happens is a trial is a search for truth. It's a search for -- everybody will get their chance to say whatever they want to say. We believe that 34 people died unnecessarily. You ask yourself, if this was your mother, your father, your sister and they were in there and you entrusted them, and the government was paying for them to be there, what duty did you owe these patients?

[2] The caregivers had originally misinformed August’s neighbors and various official investigators that he suffered from Alzheimer’s disease. Following his autopsy, they affirmed, under oath, that he had actually not been so afflicted.

[3] See Exhibit “C”. “As a rough guess, his ability to learn new information and think through problems is likely below that of a two year old and would not be expected to ever improve.”

[4] See Exhibit “D”. “[T]he Advocacy Center protects and advocates for the human and legal rights of persons living in Louisiana who are elderly or disabled.” – Advocacy Center mission statement.

[5] Contractual provisions designed to “grant or refuse [the] visitation and travel” of third parties are plainly against public interest and expressly contrary to law. Cf. “False Imprisonment”, “Isolation”, RS 14§§46, 403.2 B (7.1). Such isolation is the sine qua non of elder abuse.

[6] “It is [legislatively] intended that, as a result of such [mandatory] reports, protective services shall be provided by the adult protection agency.” RS 14§403.2 A. (1).

[7] See Exhibit F. A reasonable person would probably not reckon an hour during which an analogously unsupervised two-year-old were observed to wander alone in the street to be a “short period of time”.

[8] Idem, ”… for almost 20 years but never has a plan to accomplish his own demise”. As a courtesy to the EPS, We omit this irrelevant but highly distracting clause. Moreover, the EPS could not conceivably have “found” such and repeating it belies an astonishing ignorance of suicidal behavior, common and problematic though it is among the elderly. We would however point out that planning a suicide is beyond the functional capabilities of “a two-year-old” to which it is a juridical fact August was limited.

[9] Idem, “Perpetrators^* are elder's live in caregivers, Eric and Senneca Peters and his temporary curator, Robert Lewis. The Peters (sic) have constant contact, Mr. Lewis has frequent contact with the elder.”“ ^* Perpetrator: A term commonly used by law enforcement officers to designate a person who actually commits a crime.” - West's Encyclopedia of American Law.

[10] RS 14§403.2 A. (1)

[11] See Exhibit “A”.

[12] The autopsy report and other records do indicate a bruised forehead but no internal medical trauma such as a stroke or heart attack; an unexplained stain of the mouth, the absence of any of August’s prescribed medications but the presence of a strong depressant not approved in the treatment of any condition he suffered. Moreover, the record indicates a known history of his being allowed to wander in the neighborhood; he was underweight, steadily losing weight, malnourished and had a severe infection of both kidneys for which he had recently been given a diaper rather than antibiotics. Additionally, the police seem to insist that his body was somehow transported fifty feet from where it had first entered the still lake, navigating to avoid submerged obstacles, to where it was found in water only about two feet deep.

[13] Curiously, the coroner’s report does not reflect any such determination but rather indicates the manner of death to be “undetermined”.

[14] E.g., RS 14§§403.2 B(8), 93.3 A.

[15] “The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.” RS 14§32

[16] The Louisiana Constitution establishes that the Attorney General, as the “chief legal officer of the State”, may challenge the actions of any District Attorney, “… for cause... to institute, prosecute, or intervene in any criminal action or proceeding, or to supersede any attorney representing the state in any civil or criminal action.” La. Const. Art. IV § 8. Qui parcit nocentibus, innocentes punit. Respondeat superior; qui tacet consentit.

[17] Who's to Blame for a Katrina Tragedy?, Russell McCulley, TIME Magazine, Aug. 15, 2007.

[18] “What mattered most, several jurors said after the verdict, was that despite the tragic consequences… the couple appeared to care for the residents… as if they were their own family members.” Trial went far beyond St. Rita’s, Times-Picayune, Sep. 9,2007.

[19] E.g., if the defendants had falsely imprisoned the residents or threatened potential rescuers.