Do you remember the O.J. Simpson case?
Simpson was found liable in civil court, even though he was found not guilty for the same actions in criminal court. Isn’t it odd that Simpson could be held responsible in one court and not the other?
We encounter a similar situation in cases of nursing home neglect, but occasionally, prosecutors have successfully pursued criminal charges against a nursing home employee for mistreating residents.
Here is an example of a recent nursing home case, Beshah v. Commonwealth, where a nurse was charged with criminal fraud for intentionally not providing care to residents at the Potomac Center in Arlington, Virginia.
In that case, the nurse falsely documented care that had not been provided to patients.
The Court of Appeals of Virginia said that the nurse’s failure to accurately document care was not an isolated event but a pattern of behavior to misrepresent the status of the patient’s treatment and medication.
It is encouraging to see local prosecutors pursuing criminal cases of nursing home neglect.
Often, families will call our office and share terrible stories of elder abuse or neglect that caused the death of a loved one. They will tell me their local police are investigating and they believe criminal charges will be filed. I explain to families the following: (a) it is possible but unlikely criminal charges will be filed; (b) a civil case can be pursued regardless of whether criminal charges are filed by the prosecutor.
But we need to hold care providers accountable when they neglect the care of our loved ones. At least one Virginia prosecutor is on the right track to change the way the system works so that neglect, fraud and intentional mis-documentation are not tolerated.
In civil court, you generally sue the company but not the nurse, and worse, the nurse may or may not be fired even after having provided negligence. She won’t likely lose her license unless you file a complaint with the Virginia State Board of Nursing.
But will a nurse be hired with a conviction of fraud stating she intentionally lied about patient care? No.