We have had numerous wrongful death and other assisted living cases resolve recently, having had a wrongful death settlement hearing yesterday and having another Monday.
George McAfee Born: March 13, 1918 Died: March 4, 2009
The Emeritus Facility: Emeritus at Decatur, Decatur, Ga.
As a star running back with Chicago Bears in the 1940s and 1950s, George McAfee was known as explosive athlete endowed with speed and agility. His elusiveness helped his team win national championships in 1940, 1941 and 1946.
To his daughters, the Pro Football Hall of Famer was simply their witty and devoted dad, who enjoyed being around his children and grandchildren and seldom spoke about his football days after retiring from the game and moving to Durham, N.C., to run an oil distribution business.
In the late 1990s, McAfee began showing symptoms of dementia, a brain disorder marked by memory loss and impaired judgment. He started to experience periods of confusion, forgetting people’s names and getting lost during routine trips to the post office and bank.
Shortly after his wife’s death, McAfee moved into a facility for seniors in North Carolina. But he developed a reputation for escaping the confines of the secure memory care unit to go outside for walks. He escaped so many times that his family ultimately decided to transfer him to a facility in Georgia, where he would be closer to one of his daughters and have limited access to the outdoors.
In June 2006, McAfee moved into Cypress Court, a 60-bed assisted living facility specializing Alzheimer’s and memory care in Decatur, a suburb of Atlanta. Although McAfee suffered from dementia, he was still able to recognize family members, joke around with staff and relatives, sign autographs for fans, and occasionally go out to eat with relatives.
At first, Cheryl Morgan, one of McAfee’s daughters, said the family was satisfied with the level of care at Cypress Court. That began to change after Emeritus purchased the assisted living facility in December 2006. Morgan said she began to see a dramatic shift in the level of care.
Caregivers whom the family considered very attentive to their father’s needs left. Staff constantly rotated on each wing, making it difficult for residents suffering from dementia to connect with anyone, she recalled.
Housecleaning and residents’ personal hygiene seemed inconsistent. Morgan said she became so concerned about the facility lack of cleanliness that she began to stick pieces of paper in the bed sheets to keep track of how little her father’s bedding was being washed. The floor was always sticky, she recalled.
“Daddy’s appearance changed,” Morgan recalled. “He was often unshaven, his hair was dirty, he dressed himself but he was dressed in the same clothes over and over and over again and his laundry wasn’t being done.”
On the night of Feb. 20, 2009, McAfee left his room and went wandering through the facility. A caregiver eventually discovered him holding a large bottle of liquid dishwashing detergent in his hand. He had a dark red and blue substance on his lips. She realized that McAfee had swallowed the dishwashing detergent, a toxic substance that was supposed to be kept in a locked cabinet, and called 911.
When the family arrived at the hospital, they found their father in the intensive care unit. He was unconscious and on a ventilator. The dishwashing detergent had destroyed the lining of his lips, esophagus and lungs.
“His face almost looked like what you picture in a horror story of a death mask,” Morgan recalled. “I mean it was just horrible.”
At one point, McAfee did manage to sit up and open his eyes and look at his daughters, Mary Jeanne Stouffer, McAfee’s other daughter, recalled. “And we said, ‘daddy, we’re right here.’” Morgan said.
Eleven days after swallowing the dishwashing liquid, McAfee died. The cause of death, according to Gwinnett County’s chief medical examiner, was the delayed effects from ingesting sodium hydroxide.
After his death, his daughters grappled with the circumstances that had led their father to suffer so much in the final days of his life.
Budgie Amparo, Emeritus’s executive vice president for quality services, expressed regret for the pain and suffering the family endured as a result of the incident, but maintained that this event had been an isolated mistake by one staff member who forgot to lock up the dishwashing liquid.
In late April 2009, the Georgia Department of Human Resources cited Emeritus for failing to provide 24-hour protective care and watchful oversight of McAfee. During the same investigation, the facility was also cited for an unrelated medication error. The agency fined Emeritus $601 for the citations.
When McAfee’s daughters learned of the amount of fine, they were distraught.
“In my opinion, I think they just got a slap on the wrist,” Stouffer said. “And I’ve said all along, had this been a daycare facility that, where a child died, the place would have been shut down, and to only get a fine of $601 I just think is outrageous.”
McAfee’s daughters also came to believe that their father’s death was not the result of a temporary lapse of one employee, but of more systematic failures at a company more concerned with saving money than providing a safe environment for residents. After bringing a wrongful death lawsuit against Emeritus, the family discovered that caregivers had repeatedly raised concerns about insufficient staff at The Court at Decatur prior to the incident.
In depositions, resident assistants – the frontline caregivers tasked with helping seniors with their basic activities – testified that they made repeated complaints about understaffing.
“There were people falling on the floor that we – we couldn’t pick them up,” Melanie Slater, the resident assistant on duty during the incident, testified. “There was help needed with their medications. People weren’t getting their medications on time, because we were running late. There was more than one job to do especially in the morning. When I worked day shifts, we needed more people there to help while we were giving meds.”
Since the incident, Emeritus has installed self-locking cabinets in their facilities to ensure safe storage of toxic chemicals, Amparo said.
“The loss was very painful, painful not only for the family, painful for us, painful for our staff,” Amparo said. “But then again, it’s an accident that did occur.”
McAfee family reached a settlement with Emeritus for an undisclosed amount.
Born: February 7, 1924
Died: May 25, 2005
Emeritus Facility: The Lodge at Eddy Pond, Auburn, Mass.
At her small home, up a long dirt road in the small town of Auburn, Mass., Angenette Stewart built a beautiful garden. She planted flowers, herbs and spices, zucchini, peppers, cabbage, and cherry tomatoes.
“It was like living in botanical garden,” recalled her son, Anthony Bostic.
When the flowers started to wilt and the vegetables began to rot, Bostic and his siblings realized that their mother’s mental capacity was starting to deteriorate. Shortly thereafter, they realized that she could no longer live on her own.
At first, the family paid relatives to move in with Stewart, determined to keep her in her own home. But Stewart began to have sudden bursts of anger and bouts of insomnia. She went from being a “sweet little old lady,” to “a little storm,” Bostic said. When the family put Stewart in adult day care, she started wandering out of the facility and getting lost, unable recognize the familiar surroundings of her hometown.
In early August 2004, the family moved Stewart into the Lodge at Eddy Pond, an assisted living facility now renamed Emeritus at the Eddy Pond Campus.
“Emeritus assured us that they were monitored inside the room,” Bostic said of residents at Eddy Pond. “There was a section [of the building] where she could wander but couldn’t get out.”
But it turned out that Stewart was not as safe as she seemed.
On Feb. 22, 2005, the Elder Abuse hotline at the state Executive Office of Elder Affairs received a disturbing call from an employee at the assisted living facility, alleging that a resident had sexually assaulted Stewart several times in the facility’s memory care wing for Alzheimer’s and dementia residents. The caller alleged that staff had been aware of the attacks, but had done nothing to stop them.
Adult Protective Services and the state’s Assisted Living Ombudsman program opened investigations into the allegations.
According to agency reports, two nurses who had worked at the Lodge alleged that the director, Lori Toombs, was aware of the assaults, but had chosen not to report them to authorities or to take preventive action. One nurse stated that Toombs had said Stewart and the other resident involved in the incidents were “both adults.”
Another nurse told investigators she had asked Toombs if she should notify Stewart’s family about the assaults and was told, “there was no reason for them to know.” Toombs acknowledged in an interview with the ombudsman that there had been “a couple of incidents” but minimized their significance.
In reports, state investigators expressed frustration with what they described as inconsistent answers and a lack of cooperation from Emeritus.
An investigator from Adult Protective Services reported that she got different answers “every time she asks a question.” When the ombudsman asked Toombs for a timeline of events regarding the incidents, Toombs told her that the timeline would have to be sent to the corporate office first for review before she could release it to the ombudsman.
Mary Hagarty, Emeritus’ regional director of operations, told the ombudsman that employees had followed company policy. She maintained that employees had documented the episodes and took steps to prevent future incidents from occurring, including more closely monitoring Stewart.
The ombudsman disagreed and stated that it was clear that the facility had not put an adequate plan in place after the first incident since subsequent sexual assaults had occurred. The ombudsman also maintained that the executive director and other Emeritus employees had failed to follow the company’s policies on abuse and neglect.
In May 2005, the state Executive Office of Elder Affairs concluded that Stewart had been abused due to the facility’s failings.
Stewart moved to Queens, N.Y., to live with her family. She died at 81 in May 2005.
That March, her family had filed a lawsuit against Emeritus, naming Toombs, the facility director, and others. Emeritus, conceding no wrongdoing, settled with the family under confidential terms.
Toombs declined to comment.
Born: Dec. 20, 1932
Died: N/A (Last seen July 26, 2010)
Emeritus Facility: Emeritus at Jensen Beach, Jensen Beach, Fla.
For most of his life, Richard Borrack worked as a carpenter in the Treasure Coast region of Florida, constructing buildings using Spanish revival architecture. He also taught carpentry in the Palm Beach County School District.
In 2005, Borrack, then in his early 70s, began to become forgetful, his family recalled. He started making frequent trips – sometimes three times a day – to the bank to check his account. He’d forget where he parked his truck, spend all day looking for it, and then walk home. His eating habits became erratic.
“There would be food in the refrigerators and he wouldn’t eat it,” his son, Rick Borrack, recalled. “Or he’d only eat ice cream. He’d say he didn’t have any food when there was.”
Still, despite his mental decline, Borrack remained physically healthy, his family said. He continued to run two to three miles a day on a treadmill and was a strong swimmer.
In 2009, Borrack moved into Emeritus at Jensen Beach, an assisted living facility near his children with breathtaking views of the Indian River. During an initial tour of the facility, the family had been impressed with the beautiful marble floors, suede wall coverings and crown molding.
Despite Borrack’s tendency to wander, the family told the facility they did not want their father placed in memory care, a secure unit where the residents’ movements would be monitored more closely. Looking back, the family now wonders whether they made the right decision. But they maintain that staff assured them their father would not be able to leave the facility.
“We decided it was not the best thing for him [to be in memory care],” Rick Borrack said. “We were worried he would feel trapped in memory care and act out. On the assisted living side, he believed he was living in a luxury hotel. We believed he would get supervision. They also offered to provide him with one-on-one nursing if he needed it.”
At the facility’s urging, the family enrolled Borrack in the local sheriff’s Project Lifesaver Program, and put a tracking bracelet on him so local law enforcement could monitor his whereabouts.
But on the morning of July 26, 2010, Borrack slipped off his ankle bracelet. Sometime that evening, he walked out of the facility and hasn’t been seen since.
After his disappearance, his children scoured the beaches and roads looking for their father. The Martin County Sheriff’s Department enlisted boats, police dogs, helicopters and ground teams to trudge through swampland in the hope of finding him and publicized his disappearance in the local media. Family and friends, including carpenters who had been trained by Borrack, joined the search. His son, David, spent 38 days searching in the woods, tracing and retracing the path from Emeritus to his father’s old house in Stuart, Fla.
Family members remain haunted by his disappearance.
“I can’t pass an old person without taking a second look,” Rick Borrack said.
During an inquiry into the incident, state investigators determined that the top administrator at Emeritus at Jensen Beach had been notified that Borrack had taken off his monitoring bracelet early in the day, but did not take adequate steps to ensure his safety. The agency imposed a $2,000 fine.
In late January 2012, the family filed a lawsuit against Emeritus alleging negligence. The case has been ordered into arbitration.
Emeritus declined to comment specifically on the case to ProPublica and PBS “Frontline.” In a written statement to news media in the aftermath of Borrack’s disappearance, the company said it sincerely regretted the pain and trauma the Borrack family had experienced since the incident. “Mr. Borrack was a valued resident at our Jensen Beach community and we feel we’ve lost a member of our own family,” the statement said.
Herbert A. Packard, Jr.
Born May 13, 1932
Died: December 19, 2011
Emeritus Facility: Emeritus at Denver, Denver, Colo.
As a member of the U.S. Air Force’s security police, Herbert Packard Jr. lived on bases in three states and traveled the world.
But it was in Colorado Springs, where Packard was stationed at the Air Force Academy, that he and his family eventually put down roots. For most of his life, Packard was the rock of the family, according to his daughter, Peggy Packard, whether he was mediating family disputes, using his sense of humor to defuse tense situations, or taking care of his wife when she was dying of cancer.
Looking back, Peggy Packard thinks her father was aware of his mental decline long before the family was. After spending years volunteering at the local library to help adults earn GEDs or learn English, he abruptly stopped.
In 2006, his daughter started to suspect that he might be suffering from the early stages of dementia. He tried to make Hamburger Helper and couldn’t follow the directions on the side of the box.
The family brought in home health aides to assist him with cooking so he could remain in his home. Then, in June 2008, Peggy Packard received a phone call from her father’s neighbors, who told her that he was locked outside of his house in short sleeves and tennis shoes. It was 37 degrees outside. He had been out there for hours.
The family looked at several senior living facilities. The first felt too institutional. At a second one, many residents were still in their pajamas at lunchtime. Finally, a social worker encouraged them to look into Emeritus, which operated an memory care facility in Denver, near Peggy Packard’s home. During the tour, the family was impressed by the “home-like” environment and the activities the facility offered.
“They took people to the gardens, museums, and baseball games,” Peggy Packard recalled. “We liked that. We didn’t want my dad to feel like a prisoner.”
Packard moved into the facility in June, 2008 and for most of the next three years seemed relatively happy, the family said
That all changed on Saturday, Oct. 29, 2011, when Packard walked into the room of another resident at the facility. According to investigators, the resident, who had been admitted to the facility with a diagnosis of a traumatic brain injury, became agitated when others entered his room, believing that they were removing his belongings.
The man attacked Packard, knocking him to the floor. The assault left Packard with a broken hip, a fractured finger, and bleeding in his brain. The 79-year-old died about two months later.
After the incident, investigators were unable to find evidence that Emeritus had evaluated the resident who committed the assault before he moved in. They also could not find a care plan indicating that the facility had identified the resident’s territorial behaviors or had taken steps to manage it and protect other residents from potential abuse.
State investigators with the Colorado Department of Public Health and Environment cited the facility for failing to protect Packard and fined Emeritus $500.
“We were paying over $5,000 a month for my father’s care, and that’s all they were fined,” said Peggy Packard.
The company declined to comment on the incident.
Born: January 13, 1927
Died: March 9, 2010
Emeritus Facility: Emeritus at Ridgeland Pointe, Jackson, Miss.
Merle Fall spent only nine days in Emeritus at Ridgeland Pointe, a facility in the suburbs of Jackson, Miss., before she plunged from a second-story window, a fall that led to her death three days later. She was 83 and suffered from dementia.
Fall’s daughters, Diane Phillips and Linda Walley, said they decided to search for a place where their mom could receive direct supervision after her behavior at home became unmanageable. Fall had become combative, and had developed a propensity for wandering off. “She’d fight with her caregivers,” Phillips said. “She was confused. She thought she had a baby.”
When the family contacted Emeritus at Ridgeland Pointe, the company sent out a nurse to Walley’s house.
“She came in, shesat down right there on the couch with mother,” Walley recalled. “She reached over and held mother’s hand. And she never asked questions. As a matter of fact, it was only later that I understood that she was hereto evaluate mother, to find out whether she was suitable for Ridgeland Pointe. Because all she did was talk about what a great experience it was going to be.”
As the family explored long-term care options, Emeritus employees touted Ridgeland Pointe’s top-notch memory care unit, which was located on the second floor of the facility, Phillips recalled.
“They said she’d get a lot of individual attention,” Phillips said. “We thought that because it was private pay they’d have better staff than a Medicaid/Medicare facility and we wanted her last days to be as good as possible.”
But problems quickly surfaced. Three days after Merle moved in, Phillips visited. Her mother was unclean. She smelled like urine and was wearing the same clothes that she wore into the facility, Phillips contends. Emeritus denies this claim.
“We were happy to pay the money if we had gotten the care they promised us,” Phillips said. “We would have been happy to pay whatever it took to have her taken care of. But they didn’t do anything. She wasn’t clean. She wasn’t fed unless one of us was there to see it.”
On the night of March 5, 2010 Fall was restless and agitated. She kept wandering around the memory care unit, according to statements made by the staff on duty One said Fall was scrabbling at the lock on the window in her room at about 2 AM. At some point she tried to bribe two employees into driving her to Hattiesburg, according to the deposition of an Emeritus nurse. The next morning, at about 7:10 a.m., Emeritus employees discovered Fall in the bushes beneath a second-story window. Her tibia had snapped, the jagged edge of the bone jutting out through the skin on her leg; her brain was bleeding..
“We got to the facility and mom was in an ambulance,” Walley recalled. “Nobody from the facility came out and talked to us. Nobody from Emeritus ever came to the hospital. They never walked out the door.”
The family filed a lawsuit against the company, alleging negligence in Fall’s death. Thecase recently settled on confidential terms..
In an interview, Budgie Amparo, the executive vice president for quality and risk management for Emeritus, expressed regret for the incident, but contended the company was not negligent in Fall’s death.
“In terms of our staff, what we did obviously was to conduct an immediate investigation as to how this occurred,” Amparo said. “We had staff who was watching her all shifts..”
Wendy Moran, the facility director at the time of the incident, told investigators that locks were in place to ensure the window could only open 10 to 12 inches, in compliance with state regulations. Fall, she said, had forced her way out through the window.
Later, the nurse in charge of the memory care unit, Maggie Carter, said she did not think Fall should’ve been admitted because she needed more care than the facility could provide. She said the company actively pressured facility employees to get more residents into the building, which may have been one of the reasons Fall was allowed to move in.
“We was low on residents,” Carter said. The company was “very strict about numbers, that we need to keep up our numbers….We needed more residents in the building.”
Emeritus did not respond specifically to Carter’s contention. But in a written response to ProPublica and PBS “Frontline,” company officials adamantly disagreed with the allegation that Emeritus pressures employees to admit or retain residents whose care needs they cannot meet just to meet occupancy goals.
“ Emeritus needs to maintain a certain occupancy rate to keep the community operating successfully and the staff fully employed,” the company said in a written statement. “As a result, we seek to achieve high occupancy by residents whose care needs match the types and levels of service we provide.”
After Fall’s death, regulators with Mississippi’s Department of Health inspected the facility and instructed the company to move its memory care unit to the ground floor. They didn’t cite Emeritus for any legal violations in connection with the fatality.