LORI: Good afternoon, everyone, and thank you for joining us.
We welcome you to this Elder Justice Initiative webinar,
Forensic Markers of Physical Abuse and Neglect,
Documentation for Prosecution.
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We also want to note that today's session
is being recorded.
It will be made available on the OVC TTAC training website,
and the Elder Justice website as well.
Due to the nature of the topic we are covering today,
we do want to take a moment to note that
there may be photos and images that some can find disturbing.
Please use your discretion when viewing.
At this time, I'm going to turn things over to our host,
Dr. Sid Stahl, a consultant with the Elder Justice Initiative
at the U.S. Department of Justice. Sid.
DR. STAHL: Good afternoon, everyone. This is Sid Stahl.
Today's webinar is with
Dr. Laura Mosqueda and Ms. Page Ulrey.
The title is Forensic Markers of Physical Abuse and Neglect,
Documentation for Prosecution.
It's part of the Elder Justice Initiative,
the mission of which is to support and coordinate
the Department of Justice's enforcement and programmatic
efforts to combat elder abuse, neglect,
and financial fraud and scams that target older adults.
The Elder Justice Initiative accomplishes this
using four goals: promoting justice for older adults,
helping older victims and their families,
enhancing state and local efforts
through training and resources.
Today's webinar addresses the last of these goals, that is,
supporting, organizing, and presenting research
to improve elder abuse practice and policy.
All of these goals are met in part by the mechanism that has
been created by the Department of Justice called the
elderjustice.gov web page and, at your leisure, we invite you
to investigate the various aspects of that web page.
Today's elder abuse initiative, or elder justice initiative,
will be presented by Dr. Laura Mosqueda and Ms. Page Ulrey.
And it's a pleasure to introduce these two to you
for today's webinar on forensic markers of physical abuse
and documenting physical abuse for prosecution.
We are very fortunate to have two of the leaders in the field
who are responsible for different and important
related aspects of elder abuse.
Dr. Mosqueda is a professor of family medicine and geriatrics
at the Keck School of Medicine,
University of Southern California,
and a professor of gerontology
at USC's Leonard Davis School of Gerontology.
She's internationally known for expertise
in person-centered care for older adults
and her extensive work on elder abuse.
Dr. Mosqueda also directs the National Center on Elder Abuse
and is widely published in the field of elder mistreatment.
Ms. Ulrey is a Senior Deputy Prosecuting Attorney
at the King County Prosecutor's Office in Seattle, Washington,
where she is a member of the office's Elder Abuse unit.
She specializes in the prosecution
of elder financial exploitation and adult neglect.
Nationally, she's involved in protocol development
and training for the Office on Violence Against Women
and has conducted training
for the National District Attorneys Association,
the Office for Victims of Crime,
and the National Institute of Justice.
We're very pleased and honored to have two such distinguished
experts with us today in this field. Laura, Page, all yours.
DR. MOSQUEDA: Thank you, Sid.
It's a pleasure to be here with everybody today.
And I think we'll get started.
I first want to say how much I've learned from probably
a lot of the people or types of people who are on the call --
whether it is folks in Quincy, Illinois,
or Bucks County, Pennsylvania,
or ombudsmen like Lynette Fujitani or APS workers,
especially in Orange County, California,
detectives like Cherri Hill, and certainly
prosecutors like Page Ulrey and Paul Greenwood.
It really has informed the work that I've done
as a geriatrician in this area.
What I'll note is that, as we go along,
I'll be talking about a variety of things,
including just a quick overview of age-related changes
that make older adults a bit more susceptible
to abuse and neglect and some indicators that raise suspicion
-- along with covering forensic markers,
specifically pressure sores and bruises.
We'll talk a little bit about laboratory data,
the care and feeding of your physician expert --
for those who are detectives and prosecutors --
and some issues related to working as a team.
Page will be interjecting at times along the way.
And we'll also be asking you to have some participation.
People might notice that near the top of their screen
there's a little person with their hand up.
At times I'll be asking you to vote on something,
or just to raise your hand depending on
whether or not you agree with the statement,
and hopefully that will also help keep you awake.
So everybody, let's jump right in and get going.
As many of you know or perhaps personally realize,
as our age increases the number of health and
social and psychological issues also increases.
Chronic illnesses -- and typically it's not just
one chronic illness, it might be several at one time
like high blood pressure and Parkinson's disease and diabetes
-- which then leads to
an increasing number of medications.
We also find a lot of mental health issues,
such as depression and anxiety, that occur.
And, as we're all aware, Alzheimer's disease
and other dementias certainly become much more common
as we get older.
In fact it's estimated that close to half of people
over the age of 85 have some form of a dementing illness.
And finally I'll just mention that the quantity and quality
of social support changes as we age.
And it's not hard, I think, to imagine why these things
can combine to make older adults more susceptible to
undue influence, physical abuse, sexual assault, neglect, etc.
But it also can be very hard to tell what the heck is going on.
And part of that is because of these common changes,
and some are normal changes that occur as we age.
And just a few examples are that bone density goes down
as we age, particularly in women, but in men as well.
Many people are familiar with the term osteoporosis,
which describes the disease state of a low bone density.
In the brain, our reaction time goes down a bit.
Brain and nervous system, our memory goes down.
In the skin, also known as the integument,
the outer layer of our skin becomes thinner,
our capillaries become more fragile.
And in our sensory system, we may have hearing loss,
which is called presbycusis, the hearing loss of old age --
and changes in our vision.
So now you can begin to think about,
well, of course they have a broken bone. They're old.
Of course they have a bruise. They're old.
We can't believe anything they say; they have memory loss;
they've got Alzheimer's disease. They make a bad witness.
They can't see, or they can't report what happened
because they can't see or hear.
And it starts to make the diagnosis of abuse and neglect
harder and harder to do.
And, in fact, what I find as a practicing geriatrician
is whenever I see an older adult with an injury,
I can almost always find a reason other than
abuse or neglect to say that this is what happened.
So how do we start to sort that out and be useful to folks
in social services and in the criminal justice system?
Well, one thing I look for, what we call --
I hesitate to call them red flags these days --
I call them pink flags, things that make me
a little bit nervous like something is going on,
explanations that just don't make sense.
Yes, people can fall.
But why do they have an injury that looks like that?
A delay in seeking care.
Yes, people can get pressure sores.
But why did you wait until it was down to the bone
before doing anything about it?
Injuries that are unexplained,
stories that seem to be changing.
And what I really look for oftentimes in older adults
who have a dementing illness is a sudden change in behavior,
which is almost always a medical problem
until proven otherwise.
And what we have is what we call a differential diagnosis
in medicine when we're looking at something going on,
trying to figure out what the heck it is.
On a differential diagnosis with a sudden change of behavior,
is elder abuse a possibility?
Now what's important is not just looking at these injuries,
or looking at these pink flags,
but understanding the context in which they occurred.
I commonly get photos that people will send me
of something like a pressure sore or some other wound
with a question saying, "Hey, do you think this was abuse?"
And what I usually need is the context.
Well, what were the circumstances?
What was the caregiver trying to do, or not trying to do,
when they should have been?
What was this person's medical status?
What medications are they on?
What are all their chronic illnesses?
I will say, though, that sometimes I will see some photos
where I will say this has got to be abuse or neglect
until proven otherwise.
It is just so bad, so far out of what you would normally see,
that I would almost have to be shown
why it's not abuse or neglect.
This happens more in neglect, quite frankly,
than in physical abuse.
And even though we won't be going into it in detail,
just a quick reminder about some interviewing tips
when we're interviewing older adults.
Having a calm, quiet, and familiar environment
whenever possible; interviewing the person in their own home;
not having a lot of chaos going on;
making sure that the potential perpetrator
is not standing there or close by.
Watching the person's body language.
Are they cringing when a particular person comes by?
Do they seem to be very withdrawn
when particular people are in the room?
Compensating for sensory deficits,
so that if they have glasses that they're wearing them.
So that you are positioned so that they can see your mouth.
If they have hearing aids, are they in?
If they are in, are they on?
If they are on, do they have batteries in them?
All these sorts of things really make a difference
when you are trying to have a good interview.
And being very aware of our own tone
and attitude and body language.
What is it we are communicating
to the older adult we are seeing?
Are we communicating, "Hey, hurry it up, we're in a rush"?
I think one of the most important and difficult things
it is to do, because we're all busy,
is to just sit there and be with somebody
so that they know you're really fully present with them
and to allow them to tell their story
in the way that they need to tell it,
because they often have been through a very traumatic event.
So I'm going to go on and talk about pressure sores,
but, Page, was there anything else you wanted to add
to what I've said so far?
PAGE: I don't think so, Laura. I think this is really thorough.
DR. MOSQUEDA: Okay, this is why I like Page Ulrey really. All right.
So now we're going to talk a little bit about pressure sores,
and I just want to remind you about
why they are and what they are.
They're caused when the skin and underlying tissue
is not getting sufficient oxygen.
So, for whatever reason, it could be from pressure forces
or friction or sharing forces,
the blood supply to that area has been cut off.
And it has been cut off for long enough
that that tissue begins to die.
And we talk about several different stages, 1 through 4,
and sometimes unstageable.
And if there's time we can talk about
suspected deep tissue injury,
but we might not want to be talking about that today.
We can see as we go along with our conversation here,
everybody. So this first is more of a cartoon slide
that tells you about the pressure sores.
What you'll see is, in a Stage 1 sore,
you have the outer layer of skin,
which is not disrupted but it tends to look red.
And in a Stage 2 sore, that outer layer is disrupted.
In a Stage 3 sore, there is enough disruption
that it's gone through the skin, what we call the dermis,
into subcutaneous fat.
And in a Stage 4 sore, it's all the way down
to muscles, tendons, or bones.
And we all tend to say,
"Oh my gosh, Stage 4 sores are absolutely horrible."
And they are.
But remember in some older adults who are emaciated,
the distance from the outer layer of skin
to muscle, tendon or bone might be very tiny.
It might only be an eighth of an inch.
So this is why even when Stage 4 sores sound horrible,
we have to take the context into account.
This is a slightly more graphic way of showing the same issues
related to the different stages of pressure sores.
Again we tend to see redness with a Stage 1,
a disruption of the epidermis in a Stage 2.
We're through the dermal layer through the skin in a Stage 3
down into the fatty layer.
And in a Stage 4, all the way down to muscle, tendon, or bone.
I am going to now show a few slides
that I think will be disturbing for many people,
with actual pictures of pressure sores.
There will be three slides with that.
So I just wanted to give everybody a warning.
So here is an example of a Stage 2
decubitus ulcer or pressure sore.
And what you'll see here is that the bed of this
is clean and red, and it looks like nice healthy tissue
underneath that you would expect to be healing up pretty well.
When somebody sends me a photo like this,
I'm going to want to know:
Hey, is this what it looked like
when the person was brought in?
Or is this after they have been in the hospital
and it has been cleaned up?
This next photo is the kind of thing people will send me
and say, "Hey, was this from abuse or neglect?"
So I'm just curious right now by a show of hands,
if you can look up in your little box up there
with a little person having their hand up,
I'd like for people to vote:
Do you think this was due to abuse
or a neglectful sort of situation?
So raise your hand if you think it was.
Okay. So it looks like most people are raising their hand.
And I would agree.
I'd be really, really concerned about this.
I will say, though, that there are times
when you can see something that looks this bad
and there is a reasonable explanation.
And the kinds of things I would be looking at
in terms of the context are:
Did the caregiver know this was going on?
Were they doing anything about it,
and despite the fact of making best efforts,
it was still getting worse?
That maybe this person had a severe nutritional deficiency
or other medical problems that could help us understand
what was happening.
If they were taking proper actions to try to prevent it
from getting worse, were they also making sure
that this person's pain was being relieved?
So all of these things would factor in
when I'm looking at a photo such as this.
And again, emphasizing that even though it looks horrible,
we need to have the context behind it.
And the final difficult photo I'll show
was actually an autopsy photo, and this one
really looks horrendous for a variety of reasons.
You'll see that this person is emaciated.
That we have some large wounds that were oozing
and actually had been covered in pus
and they have sores all along their back.
So this is the kind of thing where I'd be
very highly suspicious that this was due to neglect
and want to have a lot of information to explain to me
how it wasn't in order for me to believe that.
So I'm going to just pause for a moment here
to let Page weigh in a little bit.
She and I have worked on some cases together
that have involved pressure sores.
So what are some of your thoughts and observations?
PAGE: Well, one thing that comes up for me a lot
in these neglect cases is
prosecutors and law enforcement wanting to know:
How long did it take for this wound to occur?
And obviously it's important for us to be able to
establish that the caregiver was ignoring this
for a lengthy period of time before either they got help
or before it was discovered.
Can you just talk about what research or lack thereof
exists with regard to that?
DR. MOSQUEDA: Yes, there is very little research on this.
But I would also explain that
in terms of the "how long" question,
that's difficult to answer for a variety of reasons
because a pressure sore can form fairly quickly
or it can take a long time depending on
the person's functional status, nutritional status,
and medical problems, and their circumstances
in lying wherever it is they've been lying.
So typically, I think, people like me frustrate
people like you because you say how long did it occur
and we give our usual "I don't know" kind of answer.
But I also have found that sometimes
it's not that important to know.
What you need to know is not exactly
was it two and a half days ago.
But oftentimes I think, and correct me if I'm wrong,
the question is: Could this have occurred overnight,
like they said it did?
And that's when I'm often able to say,
no way, no how, did it occur in that kind of a timeframe.
And even though I can't tell you if it took
eight days or 12 days for this to form,
I can tell you it didn't occur overnight
like this person said it did.
And then I can give you very solid information as to
why I would not believe it occurred in that timeframe.
Is that the kind of thing you are talking about?
PAGE: Exactly. And I think usually we can do fine
in a trial situation as long as we have got
a general window of time during which
you think that pressure sore would have developed.
And the fact that it was, you know, seven to 14 days
is usually enough for us to work with.
The concern obviously is just like you said
that someone would claim it happened overnight,
and the perpetrator simply didn't
have time to even respond to it.
Laura, what about other signs?
If I am looking at a case I get with a victim
who has got some pressure sores,
what else should we be reviewing to determine
whether or not these pressure sores
were caused by neglect versus underlying disease?
DR. MOSQUEDA: I think getting the medical records
is really, really important.
And I know some of the cases I've been involved in
with this neglect is the caregiver says,
"Well, she didn't want to go to the doctor."
But then an investigator will find out
that before that caregiver moved in with Mom
that Mom had been going to the doctor pretty regularly.
And I know that's the kind of information
you will often get and let me know about.
So I will want to know: Are there other medical problems?
And the other thing I'm really interested in
is their functional status.
What do we know about their mobility?
And if this person up until two days before their death
was supposed to have been walking around,
then why would they have developed
these horrible pressure sores so quickly?
Because immobility should be more
associated with pressure sores.
And then the other thing that I really like to know about is:
What kind of equipment was at home?
Was there any sort of special mattress?
Was anything being done related to wound care?
What are some of the other things you're thinking about?
PAGE: I think the number and frequency or, I'm sorry, the
number and location of pressure sores is really important.
Is that not true?
DR. MOSQUEDA: Yeah, that is true. Location is really important.
And because sometimes I'll know
this is a really unusual place for a pressure sore to form.
I'm thinking of one case where I saw where somebody
had a pressure sore on the inside of their thigh
and that's not a common pressure point.
So what in the world was going on to cause it there?
So yes, location, number, size, depth, are all very important.
PAGE: Another question that I hear a lot is
well this [inaudible] had dementia, so is it possible
that she didn't feel any pain as a result of pressure sores?
DR. MOSQUEDA: Yeah, I'm so glad you bring that up.
It is remarkable to me that we so often dehumanize people
who have dementing illnesses
that we think that they don't feel pain.
And that is absolutely not true.
So people with dementia, if anything, I think,
can have more suffering as a result because
they don't even understand what the heck is going on.
So people with dementia absolutely do feel pain,
and pressure sores absolutely are painful.
Anything else? Are there any questions
that the DOJ team sees coming in
related to pressure sores that I should address right now?
DR. STAHL: There are two questions. This is Sid Stahl.
There are two questions on the bottom of the question box:
Can these issues be exacerbated by other pathology?
Or, Dr. Duffy raised the issue,
are there mental health issues related to it?
DR. MOSQUEDA: Yeah. So they can be exacerbated by other pathologies.
So for example, if right now I am doing house calls on
somebody who has very advanced metastatic bladder cancer,
and so we have a special bed ordered,
but that pathology might lead to her
having some pressure sores,
we are going to do our darndest to stop it from happening,
but it might happen before she actually passes away.
So that might be one extreme example.
But people who are malnourished also are more prone to have
sores and also have difficulty having their sores heal.
So that would be some examples.
Related to mental health issues,
that's a really interesting point as well.
People who have severe mental health issues as older adults,
for example, might not want to go along with whatever
program you have in order to provide appropriate wound care.
Or you can have mental health issues
on the part of the caregiver,
so that they are simply unable to provide appropriate care.
Page, I might actually hand it over to you there for a minute,
in terms of what you do in those cases.
PAGE: Yeah. We've had a lot of referrals over the years
of cases where people with mental health issues
or developmental disabilities ended up being in charge
of aging parents or aging relatives
and becoming over time responsible for their care.
And it's really problematic.
It's very difficult for us as prosecutors to figure out
whether in those cases prosecution is appropriate.
So we end up doing a pretty exhaustive investigation,
not only into the victim's situation
and the victim's medical history,
but also into the suspect's situation
whether or not they're working,
whether or not they have any diagnosed
or treated or untreated mental health issues.
Essentially to figure out whether they had
the capacity to provide proper care to this person.
And we've had a number of cases where,
despite the fact that the victim really died in situations
that no one would claim were anything other than neglect,
we were unable to prosecute because the adult children
who were caring for that person simply did not have
the wherewithal mentally to step in and provide proper care.
And we've had similar situations
with adult children with developmental disabilities.
So I guess I would just put out
a word of caution to prosecutors in these cases --
and just to make sure that when we are prosecuting them
we're really prosecuting cases
where the caregiver had the capacity emotionally,
intellectually, and physically to provide care to that person.
Once we start realizing the atrocities that happen
to older people in our society, it's very easy
to become very zealous in prosecuting these cases.
And I think we just need to be cautious
that we are really making sure that
we are prosecuting people who had the ability
to get proper care for this victim
even if they couldn't provide it themselves.
DR. MOSQUEDA: Thanks. Thanks for mentioning that.
All right. I'm going to move on pretty quickly here
to some bruising work that we've done.
And this is a lilac-breasted roller bird that, to me,
looks like a bruise. Don't tell the bird that. But there we go.
So we did a couple of studies on bruising,
and don't worry about the colors of the bruises on here.
Just look at the location. And this was where we looked.
We did one study that looked at what happened in bruising
if it's just accidental.
And then we did another study that looked at what happens
in bruising if [inaudible] actually a victim of abuse.
And a big thank you to the Orange County, California,
Adult Protective Services Group,
without whom we could not have done these studies.
So let me just show you for a comparison,
this is anterior or the front of the body,
and what you'll notice here is a lot more bruising on the head
and on the upper arms and torso and upper legs
in people who have been abused.
So you can see a distinct difference there.
If you look at the posterior, or the back of people,
you'll see also a different pattern
where you see bruising up on the neck, again the torso,
buttocks area, and you rarely see that
in people who have not been abused.
So it began to tell us that even though you cannot
definitely say somebody was abused based on the location,
we at least now can begin to say,
look, this is a suspicious pattern.
We found that really large bruises, multiple bruises,
and bruises in these locations
were more consistent with bruising due to abuse.
And this can be especially important in people
who have dementia who really can't tell us what happened.
So this is going to be now back to
your turn to raise your hand.
This bruise is on the front of somebody's shin.
And I'd like for you to raise your hand
if you think this bruise was accidental.
If this bruise was accidental raise your hand.
Yeah. Most people are raising their hand. Good job, people.
And I would agree with you.
That's a really common place to bump yourself
and doesn't make me too worried. Let's go to the next slide.
This is a slide, you can see somebody who has
bruising on their side, and you can see it
in multiple areas here, here, and here.
Raise your hand if you think that this
was an accidental bruise.
A couple of people are raising their hand
and the rest aren't, or are asleep.
Either one is possible, I recognize.
And the reason I would agree I'd be really worried about this,
this is a hard place to just get a bruise accidentally.
And I'd want to hear a really consistent story
about how somebody had their arm up and fell against a dresser
or something where at least we would have some congruence
between the history and the physical findings.
And finally this slide. I have my colleague Diana Humbler [ph.]
to thank for some of these photos.
Raise your hand if you think these bruises
were accidental in this person.
And again, people are either asleep or correct, or both.
And this, of course, would be very concerning:
multiple bruises all over the chest and,
as we can see, on the arm as well.
So very, very kind of concerning.
So the message here is: You can begin to understand
that certain bruising patterns are more consistent with abuse
and we need to really be on the lookout for it.
And we're really encouraging health care professionals
to not just accept, "Well, Dad fell
and that's why he has a bruise," but to ask more questions.
So just to go back to neglect for a minute,
the kinds of things I am looking for
when I have a concern about neglect are:
Does the person look malnourished?
Are they in filthy condition?
Does it seem like we are giving them the right kind
of medication but these medical issues
aren't just getting better?
Maybe it's because they're not actually getting
the treatment that we're prescribing.
Is the caregiver missing appointments
or just seem disengaged?
Isn't following up? So these all might be signs of neglect.
I do want to give a quick mention
to what we can tell from laboratory data.
As many of you know, whenever we're looking at a case
of abuse or neglect, the medical expert is going to want to
take a look at blood test results,
and we're going to want to know what the EMT said,
and intravenous fluids -- were they administered
on the way to the hospital?
So they were able to look at things like chemistry panels,
blood counts, medication levels,
and a variety of direct and indirect indications
that might tell us whether somebody was on a medication.
So for example, if this patient has been on hospice
and they've been in a lot of pain
and they're supposed to have been receiving morphine
and you find zero level of morphine, that might indicate
that it wasn't being given to them when it should have been.
So these are all the kinds of things that we're looking at
when we're bugging you for laboratory tests.
And the kinds of things I consider
when I'm being asked to look at abuse or neglect is:
What were the vulnerabilities in their functional status?
What was going on with the caregiver?
I don't do this too much because I've really come to understand
more and more that this is a job
of the detectives and prosecutors.
But it does help me get a clue.
Do the explanations make sense?
What was their pattern of prior health care usage?
And for me, it's really getting that context
and putting the pieces of the puzzle together, because
as a clinician I live in this gray area most of the time.
People want to know if it was abuse or neglect,
and I'm like, I'm not really sure. It's pretty gray.
It's hard to tell.
But I do know that once I'm asked to testify as an expert
I have to really be willing to say, "Hey, this was neglect."
And I have to really believe it and know why I believe it
so that I'm able to do a good job
on behalf of the investigators and prosecutors.
So the challenge really becomes, we can't do a blood test
and say, yep, a blood test showed it was abuse.
We have to rely on forensic markers
and putting the puzzle together.
And generally we, as a group, as a field,
we're not that well-trained in how to look for it.
And so we're all trying to do a better job.
I know among physicians we really struggle with
making a diagnosis and even putting it on our radar
so that we pick it up when it is present,
and we clearly, clearly need more and better research.
What I'll mention before I turn it over to Page
is that our partnerships are invaluable
and sometimes they do feel a bit like this
when we're struggling with each other.
But, and depending on the day,
you're either this bird or this pelican.
But the partnerships are critically important
so that we can learn from each other and, more importantly,
do a better job of serving these susceptible older adults
who we're all here to serve.
So with that I'll turn it over to Page,
and apologize for going a couple minutes
over my time there, Page.
PAGE: It's fine, Laura, and I just want to echo what you said.
I know especially with regard to neglect,
which is so completely medically oriented,
we simply couldn't prosecute these cases without you.
And going back to, Laura, what you were saying about
when is something neglect versus poor care,
for us even if a doctor says this is neglect
it doesn't necessarily mean that we can prosecute it.
So what we're looking at is our respective state statutes
to see whether or not this act in front of us
fits the elements of that statute.
And in my experience, I tend to prosecute only
felony-level neglect, so I am definitely looking at this
from that lens, but we tend to only prosecute those cases
involving severe neglect where there are
multiple, multiple severe pressure sores,
oftentimes leading to death.
And also other signs of neglect like poor hygiene,
poor dentition, malnutrition, dehydration --
it's usually a cluster of signs that the person
was not getting any proper care,
much less proper care for their pressure sores.
And then we're also looking for a case
where we don't have so many systemic failures
that the defense attorney is inevitably going to be saying,
"Well, yeah, it may be okay to prosecute my client, but
you should also have all these other entities at the table."
And sadly what we see in a lot of these cases --
because our system is not doing a very good job
of caring for older people --
are situations where a number of different agencies
or individuals failed the victim.
And if you have a lot of that going on in a case,
it can make singling out one person to prosecute
problematic both ethically and practically.
And then the other thing that has ended up becoming
more and more important to me as I've done these cases
is being able to prove a motive,
and usually it is a financial motive.
So where you have a caregiver who simply is,
for whatever reason, passive and not very engaged
with the care of the person who they are responsible for,
we often don't see juries getting as upset about
those cases as they need to be to convict.
But where we can show that the caregiver
had some financial motive to keep the victim in the home
to not get them the care they needed,
that's usually where we can get juries to convict.
So that for me is a very important factor in these cases.
Okay, I'm going to move on.
And I'm just going to talk for a few minutes
about the vital role of health care providers
in our prosecution of elder abuse.
And first of all, just to give people a sense
of the lay of the land in this sort of bleak world
of elder abuse prosecution, most of the victims in our cases
tend to be suffering from some degree of dementia.
Only half, as Laura said, of people over 85 have dementia.
But the people who tend to be victimized in elder abuse
tend to most often be suffering from it.
In many of our cases those victims
don't have dementia that's diagnosed.
So they're usually living in their own home still.
And oftentimes their family members aren't aware of the fact
that they've got significant impairment of some kind.
The other thing is that they're usually isolated.
So we don't often have witnesses to our cases
besides the victim themselves.
The most common defenses that are raised to different
forms of elder abuse are listed in the slide. In neglect,
what we hear most often from defendants or perpetrators
is that "The victim didn't want medical care."
"I was just following their wishes."
So it's a form of a consent defense.
In a physical abuse case, it's usually that the victim fell
or the injury was caused by some kind of accident.
In a sexual abuse case, we are back to consent
where the perpetrator claims the victim wanted
to participate in whatever the sexual act is at issue.
And in a financial abuse case,
the defense is also usually consent:
"The victim wanted me to have their money."
"I was the only one who was there for them."
"I was the one they really cared about."
So you can see that in each of these cases
we're really having to put together the pieces of evidence
to try to figure out if (A) a crime occurred
and (B) if we can prove that crime.
And it's made particularly problematic
because consent is a legitimate defense.
I mean, it's true that you have the right
to refuse medical care if you have capacity.
You have the right to have sexual contact
with who you want to,
and you have the right to do with your money what you want.
So in each of these cases we're really having
to look beyond whether or not the victim consented
to whether or not their consent was obtained
through some form of undue influence,
or whether they lacked the cognitive capacity
to consent to whatever is at issue.
And when you no longer have a victim who is available to you
by the time of trial or by the time of the investigation,
that can get really complicated.
So these are just the different pieces of evidence
we try to look at in these cases
to figure out if we've got a criminal case.
And I would say records of and interviews with victims'
health care providers are number one most important
in virtually all of our cases.
We're also looking at bank records,
usually of the victim and suspect, APS records.
We're getting capacity evaluations
in many of our cases.
We're talking to civil attorneys who may have been involved.
This long list is unfortunately a pretty typical list
of the kinds of evidence we're looking for
in most of our cases.
And the doctor, the nurse practitioner,
or the physician's assistant who is treating
an elder abuse patient is often the only person
that victim is coming into regular contact with,
due to their isolation, due to the fact that oftentimes
the perpetrator is intentionally keeping them at home
and keeping them away from family and friends.
So that health care provider is all the more essential to us
because they may be the one person who is
observing the injuries on the victim,
seeing pressure sores or other signs of neglect,
detecting trauma or other mental symptoms of any kind of abuse
the victim might be going through,
and also detecting cognitive impairment.
We often see doctors or health care providers
as sometimes being the only person that victims
are willing to confide in because they trust them so much.
And Laura, please jump in here any at any point.
But we use health care providers in a number of ways
in these cases.
We use them to help us determine causation of injuries,
to help us figure out whether signs and symptoms
that we're seeing on a victim are consistent with neglect,
to help us figure out whether a victim
had capacity to consent to an act that's at issue.
And also to help us figure out whether
criminal charges are appropriate.
I have called Laura Mosqueda on a number of occasions
and simply asked her,
"Do you think it's appropriate to file charges in this case?"
Like, I know you think this was neglect,
but a separate question for me is:
Is this egregious enough and is this the kind of case that
we think the justice system should be getting involved with?
And getting the perspective of someone like Laura
or another geriatrician who sees these cases on occasion
can be a very helpful read for us
as to whether or not charging is appropriate.
DR. MOSQUEDA: And one thing I'll just mention, Page,
because some of the questions are coming in
related to this a bit as well.
While we're not going to be going into capacity too much
in documentation of that at least on this webinar,
the Department of Justice has sponsored some work done
as a collaborative between USC and Cornell
where we've worked on a tool for better documentation
of injuries that we're going to start spreading nationwide,
and hopefully will be taken up by primary care physicians
and emergency room physicians in particular.
That hopefully down the line will make your job easier --
when you go back to look at records you'll
have some better documentation of the injury itself.
PAGE: Right. I'm just seeing a comment from someone,
Skip Swain [ph.], talking about how a lot of doctors
that Skip deals with don't like to complete
capacity declarations and probably don't like to do
assessments at all or screening at all for dementia.
And that's definitely something that
my colleague Amanda Frot [ph.] and I deal with
in our cases quite frequently,
is where there is a patient with ongoing memory issues
where that primary care provider simply kind of writes it off
and says, well this is just old age,
or appears for whatever reason to be reluctant
to do any real assessment of that incapacity.
Can you comment on that, Laura?
DR. MOSQUEDA: Yeah. Well I think this gets to a bigger issue, which is,
we as health care providers need to do a better job
of identifying and diagnosing dementing illnesses.
And I think we are better at it than we used to be,
but still nowhere close to where we want to be.
And so there unfortunately still is oftentimes
a tendency to just say the person has memory loss
and not to really look into it and make
an actual diagnosis and figure out if it's reversible.
On the capacity piece, I would say that most of us physicians,
unless we've really been trained in it,
aren't very good at assessing capacity.
I know that I can assess capacity for certain things,
but I will often rely on a geriatric psychologist
or a neuropsychologist to help with a capacity assessment.
And the final thing I'll mention, at least in California,
our cap dec form -- our capacity declaration form --
is horrible. It's confusing. It's not well-written.
I'm sorry. I hope I am not offending anybody.
But it really needs a major update.
And I think what ends up happening is physicians
don't understand or take the time to understand
the importance of this form
and the consequences of filling out this form.
And I certainly have seen copies of these forms
that were really not filled out well at all.
So I would love to be in a world where we're
doing a better job getting capacity assessed
by the right people at the right time.
And we really need to move in that direction.
PAGE: And what we end up doing in our case is
most of the time trying to find a geriatric psychiatrist
or a geriatric psychologist who can do an evaluation.
And I know I'm lucky to be in a big jurisdiction,
and in some smaller ones it's very difficult
to find those people.
But in many cases we simply don't
have sufficient documentation of the dementia
in the primary care provider's records
to be able to proceed on that theory
without something more thorough being done with the victim.
But sometimes we will have a case where
we can find someone who's able to sort of look at
the medical records and look at the interviews on the case
and help give an opinion at trial
even if they weren't able to do an evaluation of the victim
at the time or close to the time of the incident.
And sometimes family witnesses
obvious signs of cognitive impairment,
so that we're able to proceed even if we don't have
a thorough evaluation that was done close to the time.
DR. MOSQUEDA: And I know I've seen some records where
you'll look back years prior and find somewhere hidden
that somebody was on a medication
that's only use is for memory loss.
PAGE: That's right. DR. MOSQUEDA: It already
starts to indicate that hey, three years ago
somebody was worried enough
that they put them on the medication for this.
So no. It didn't just happen last week.
PAGE: Exactly. And usually we also see changes
in how they are providing care for themselves,
changes in their keeping track of their financial records.
If you do a thorough enough investigation
you can often find clues about dementia
that really might corroborate an opinion by an expert later on,
that they were most likely suffering from it
at the time of the crime.
Just a reminder too that health care providers
are not only essential with regard to
information about dementia,
but any statements made by a victim to a health care provider
that's made for purposes of medical treatment
is admissible later on at trial even if
we don't have that victim available to testify.
So if doctors or nurses will take notes
of what it is the victim said to them about the abuse,
that can be really crucial evidence for us
further down the line.
And the same with statements made by the caregiver
if that is the person we end up charging with abuse.
Those statements made to anyone can be admitted
as a statement of a party opponent,
regardless of whether or not that person testifies.
So again really crucial evidence for us
when we end up charging a case.
So one of the things we asked for from health care providers
is thorough documentation of those statements
that I just mentioned.
Photographing injuries and signs of neglect.
Documenting any concerns of dementia.
And then there are some basic screening tools
that more and more health care providers are administering
that don't really give you a thorough assessment
of a patient's cognitive impairment
but do give you a good idea of whether or not
there are some clues about dementia
and whether or not they should be referred on
for a more thorough assessment.
And the two that I think are the most effective
at least for purposes of my cases
and I think, Laura, you agree with this,
are the Saint Louis University Mental Status exam,
the SLUMS test, and then the MoCA,
the Montreal Cognitive Assessment test.
Both of those assess not only memory loss
but also executive function and therefore really help us
get at whether or not a victim had had capacity to consent
to whatever is at issue in the case.
Any comment on that, Laura?
DR. MOSQUEDA: Yeah, I tend to use the MoCA.
And again, this is a pretty brief screening tool.
So I will use this,
and sometimes it's just obvious
the person is really bombing it,
and they're bombing it in all the areas
that are related to that higher level decision-making
that you need in order to make complicated
financial transactions, etc. And it ain't so.
And in which case I am really able to tell that,
and sometimes I'm writing, this is not an abuse case.
But I'll be willing to write a letter saying
the person lacks capacity in order to
help trigger something like a power of attorney.
When it is more subtle and it is difficult,
I turn to my colleagues typically in neuropsychology
or general psychology to do the
much more detailed testing in
difficult-to-determine kinds of cases.
I will also say that a lot of times by the time
I'm seeing them, it's pretty obvious and it isn't so subtle.
So I do think there's a lot that
well-trained health care professionals can do.
But the other thing that worries me is
if you don't know how to do this test,
it's worse to just try to do one and get bad information
than to not do one at all.
PAGE: I know we're running short on time
but I just wanted to also talk a little bit
about working with medical witnesses,
the care and feeding of these doctors.
And I think a few things I've learned from having done this
improperly in the past is that it's incredibly important
to contact them and explain very clearly
what it is you need them to do on a particular case.
And then giving them as much of the medical record
as you can of this victim, including
the current hospitalization records
and prior treating physician records
and prior hospitalization records is really important.
Because inevitably, especially in a neglect case,
you're looking at not only what's going on
with that patient currently, but you are looking at
what their history is of accepting care
and receiving medical care and also prior diagnoses
and how that may have affected what their current condition is.
We also want to give doctors a very clear picture
of what this case is going to look like to them,
what they can expect as far as defense interviews,
trial, potential continuances.
And then arrange a meeting to go to their office
and really sit down with them
and go over your direct examination of them and what
you expect the cross-examination will look like.
I actually end up working on my direct examinations
with the expert myself.
So I will send them a draft of what the direct examination
is going to look like, and I ask them
to help me clarify it and refine it.
So I'm really asking the questions that will get at their
opinions and the medical history as effectively as possible.
And then I also, when I am going to trial,
will ask the court to let me hard-set the expert's testimony.
So I'll ask for a specific day and time
when that expert will testify,
and we'll interrupt anyone else's testimony to get them in.
So just as an effort to try to inconvenience them
as little as possible, and then obviously
keeping them updated about any changes in trial dates
or any interview dates or anything like that.
Anything else to add there, Laura?
DR. MOSQUEDA: No, I think we just have learned that there's
lots of cultural differences between doctors and lawyers,
and so understanding what each other needs
is really, really helpful.
PAGE: Right. So I think we're back to the idea
of this being a really challenging,
but incredibly rewarding and important, partnership.
And I know that for me I couldn't be prosecuting
neglect cases effectively without health care providers.
And I couldn't provide prosecuting for most other
forms of abuse either, including financial exploitation,
without this essential partnership.
DR. MOSQUEDA: Yeah, and I think the other thing
that's nice for people like me is to know that
there's people like you out there, Page,
to give us some hope that because we know that
ultimately there are some cases
that really deserve criminal prosecution,
and knowing that that's going to happen with people who care
really helps us from getting demoralized.
And so we really, really appreciate it.
I think this is our last slide, except for the link.
And I might just mention, Page, if you don't mind,
that I would invite anybody who wants to send
an email to me to do so.
My email address is just my first name, dot, my last name,
so Laura.Mosqueda@USC.edu.
I'd love to hear your feedback regarding whether or not
this was helpful or things that you didn't like about it
that we should know about, things that I can do
to make this better in the future.
I would very much welcome the feedback and of course --
PAGE: And I would join in that, Laura, if I could.
If you could also let me know that,
I really want to be improving what we can be doing
to help people in this difficult field.
And my email address is Page.Ulrey@KingCounty.gov.
DR. MOSQUEDA: Anything you send to one of us, we'll share.
PAGE: Yes. DR. MOSQUEDA: Thank you.
DR. STAHL: Laura and Page, thank you very much.
If you have questions, Sid Stahl again,
if you have questions or ideas,
please send them to elder.justice@usdoj.gov.
And on the screen there are a number of helpful links
that you may want to take a look at
to continue your learning about this particular topic.
There are a number of questions that people have asked.
And let's go to a few of those in
the remaining few minutes that we have.
Senator Barnett asks what do you initially --
I assume this is addressed to Page --
what do you initially charge the defendant with
when you initiate a case?
PAGE: Well, it depends completely on the facts of the case,
but we tend to not charge
the lesser, sort of lower-level neglect cases.
Not only because we focus on felony cases here,
but also because I think when you're talking about
Stage 1 and 2 pressure sores,
it becomes all the more difficult to show whether or not
they were caused by neglect
versus the many underlying health issues and care issues
that can contribute to something like that.
And I also think it's difficult to get the jury
to really care when you're talking about
less severe cases, unfortunately.
So most of the neglect cases I've charged have been
either charged as homicide cases,
so either as manslaughter cases or as criminal mistreatment,
which is Washington State's version of neglect.
And we've usually charged first- or second-degree
criminal mistreatment, which means causing great bodily harm
or death or creating an imminent risk thereof.
So usually that's the kind of case that I think
is clear enough and strong enough that
we're going to be able to get a guilty verdict and
that we should be charging them in the first place.
DR. STAHL: Dr. Lynn Duffy asked the question:
I wonder about the rural communities,
if there are higher incidents of elder mistreatment,
as apparently Dr. Duffy has seen an increased
number of clients in the last year.
Do you know if that is possible,
or is that unique to the circumstance
that Dr. Duffy finds him- or herself in?
DR. MOSQUEDA: I don't know about that.
We don't really know if there are differences
in urban and rural communities related to abuse and neglect.
So I certainly don't have any data to share.
I do think it's sort of interesting because
when you look at doing research
you want to decrease the amount of abuse and neglect.
But on the other hand, if you're raising awareness
and you're getting more appropriate reports as well,
it can look like the incidence is going up
when in reality it's just public awareness
that is going up as well. So I would say it it's hard to tell.
DR. STAHL: And I would agree.
And being DOJ's research consultant
on elder mistreatment, I've not seen literature
on whether there's an increase
in elder mistreatment in rural communities,
or whether it's reporting or real increase.
Arthur Stephens asks the question:
I'd imagine ER physicians are somewhat trained
in these forensic markers.
He poses that as a question, and I wonder, Laura,
if you can address that in your experience.
DR. MOSQUEDA: Yeah. Well there's a couple of things.
One, we need more research in order to
be able to generate better training.
But there are some things we do know which
I don't think has commonly made it in to training yet
in a variety of fields
including emergency room physicians and geriatricians.
I think there's a lot more training that goes on
related to sexual assault and child abuse.
And in fact nurses play a very important role in this as well.
Finally I'll mention there are a number of
superb emergency room physicians doing excellent research
in this area largely funded by the Department of Justice.
So I think you're going to see more and more work coming
out of this area, particularly work by Tony Rosen
and Tim Platts-Mills, where they are working hard
to improve their colleagues' ability to detect and diagnose
abuse and neglect in the emergency department.
DR. STAHL: One last quick question that I'm paraphrasing --
something that Ralph Hernandez said earlier, or wrote earlier:
Has it been your experience that HIPAA rules,
or at least the physician's interpretation of HIPAA rules,
have got in the way of physicians
providing useful information?
DR. MOSQUEDA: Yes, on two fronts.
One is it truly can interfere with just
reasonable exchange of information,
and the other is, I think it is sometimes used as an excuse.
And sometimes I think it is laziness
on the part of health care providers who just use it
as an excuse to not give information
when legally they are completely allowed to do so.
And if Adult Protective Services asks a physician for records,
we are allowed to provide them those records.
So knowingly or unknowingly I think it's also sometimes used
as an excuse when it doesn't need to be.
PAGE: And I would just add that in any criminal case
where we are getting search warrants,
search warrants from any state trump HIPAA.
There is no concern about HIPAA when you've got
a search warrant or a subpoena from the court.
So it should not be interfering
with our ability to investigate these cases.
DR. STAHL: So it's primarily a misunderstanding
on the part of the medical community.
PAGE: Yes.
DR. MOSQUEDA: Sometimes it's real, more often it is not.
DR. STAHL: Okay. I want to thank our two presenters
this afternoon, Dr. Laura Mosqueda and Ms. Page Ulrey.
If you have additional questions go ahead and send them
to either Dr. Mosqueda or to Ms. Ulrey, as well as
send them to that link that you see on your page right now,
elder.justice@usdoj.gov, and we'll make sure that
we forward them to the appropriate person.
Again, thank you so much, the two of you.
And thank you, all of you, for joining our webinar.
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