Clay Greene, the gay elder who was forcibly separated
from Harold Scull, his partner of 20 years, has obtained a settlement of his elder abuse lawsuit against defendant County of Sonoma, for six hundred and fifty thousand dollars ($650,000). The case, which was filed in Sonoma County Superior Court more than a year ago, was scheduled to go to jury trial this month. The timing of the settlement, right up against the trial date, indicates that the County only settled due to the pressure of the looming trial date.

The National Center for Lesbian Rights, which brought the lawsuit on Clay's behalf (together with The Law Office of Anne N. Dennis, and Stephen O'Neill and Margaret Flynn of Tarkington, O'Neill, Barrack & Chong) issued a press release that struck a cautionary note:

"What Clay and Harold lost can never be replaced, but this settlement brings a measure of justice to their story," said Amy Todd-Gher, Senior Staff Attorney for the National Center for Lesbian Rights,.... This victory sends an unmistakable message that all elders must be treated with respect and dignity, regardless of their sexual orientation, and that those who mistreat elders must be held accountable. Even as we celebrate this victory, however, we are deeply troubled that the County of Sonoma continues to refuse to take responsibility for their egregious misconduct and violations of the law in this case. We urge every citizen of Sonoma County to demand more oversight of the Public Guardian’s office. They need to be watched."

They need to be watched indeed. If you read the County of Sonoma's website, it says that the reason it settled the lawsuit was "to avoid costs associated with a lengthy trial." They added, "The County must manage taxpayer money prudently." Did they forget about justice and doing the right thing? The only errors that the County acknowledges relate to Clay Greene and Harold Stull's property:

"The County acknowledges that some administrative errors occurred in the handling and disposition of the plaintiffs’ property, which led to improvements in Public Guardian policies with respect to procedures for property disposition and case management. The County remains confident in its position that there was no discrimination in this case....."

They apologize for violating property rights but can't bring themselves to acknowledge they violated Clay's civil rights, as an elder, to be free from elder abuse, and as a gay man, to be free from discrimination. Sonoma County could have brought this episode to a more satisfactory resolution by admitting its mistake and promising it won't happen again. Instead, this case concludes with Sonoma County, which used to known just for fine wine, taking its place in the history of civil rights violators, alongside places such as Little Rock, Arkansas and Birmingham, Alabama.

By the terms of the settlement, only $25,000 of it relates to "property damage." By paying Clay Greene a very large settlement, that is as close as they come to admitting the magnitude of their mistakes. A large settlement for a huge injustice.

To read the press release by the National Center for Lesbian Rights, click here.

To read the press release by Sonoma County, click here.

Felicia Curran
www.ElderAdvocacyLaw.com
www.ElderAdvocacyBlog.com

If there was a contest for "Worst Place For (Gay)Elderly to Live," Sonoma County, California would have to be on the short list, based on what they did to two elderly gay gentlemen, Clay Greene and Harold Scull, pictured here in happier times. Clay Greene was living in his home in Sonoma County, with his partner of 20 years, Harold Scull. Harold, then 88 years old, fell and was hospitalized. What happened then is every elder person’s – and gay person’s – worse nightmare. The County sprung into action, removing Clay from his home, and sending Clay and Harold, against their will, to separate nursing homes.

Although Clay and Harold had wills, powers of attorney, and medical directives, all naming each other as their responsible persons, the County even obtained court orders preventing Clay and Harold from seeing each other. The County sold their belongings at auction, and as reported by Scott James of the New York Times, removed the men’s cats from their home, right in front of Clay Green. Clay is still haunted by the scene. “When Clay M. Greene remembered the events of June 2008, he clenched his teeth, his hands tightened into fists and his body shook. They grabbed them by their necks and tossed them in a car,’ he said last week, recalling the fate of his beloved cats, Sassy and Tiger. He never saw them again.” Harold died in the nursing home, a few months later. With the assistance of a court-appointed attorney, Anne Dennis, of Santa Rosa, Clay was finally released from the nursing home

According to Kay Kendall of the Bilerico Project, all Clay has left from his life together with Harold is a photograph. The rest was destroyed by the County.

Clay Greene has decided to strike back against this despicable and egregious conduct, and is suing Sonoma County for violation of his civil rights – as an elder and as a gay man – in a lawsuit that will go to trial in July. Clay is from a generation that was forced to live their lives behind closed doors, so he does not use the term “gay” to describe himself, or the term “same sex partner” to describe his relationship with Harold. By standing up for himself, though, he will vindicate the rights of senior citizens in general and gay senior citizens in particular who live in fear that the same thing could happen to themselves.

To read the New York Times article about Clay Greene, click here. To read Kay Kendall’s article in Bilerico, click here.

You can learn more about the lawsuit, by visiting a Facebook page set up by Clay's supporters: www.facebook.com/JusticeForClay?v=app_2347471856

Felicia Curran
www.ElderAdvocacyLaw.com

Government-run nursing homes can be held liable for neglect and abuse of their residents under a federal civil rights statute, Section 1983 of Title 42 of the United States Code, under a recent ruling by the 3rd Circuit Court of Appeal. In Grammer v. Hazel the federal appeals court for the Third Circuit (which covers Pennsylvannia, Delaware and New Jersey) held that the Federal Nursing Home Reform Act gives residents of state and county-run facilities the right to bring federal civil rights lawsuits over inadequate care.

In the Grammer v. Mercy case, the lawsuit was brought on behalf of Melviteen Daniels, a deceased resident of the John J. Kane Regional Center at Glen Hazel, in Pittsburgh. At the nursing home, Melviteen is alleged to have acquired pressure ulcers due to neglect; the pressure ulcers became infected, causing her death by septic infection.

Thanks to the lawyers (D. Aaron Rihn and Bob Daley, Robert Peirce & Associates, Pittsburgh, Pennsylvania)who brought the case on behalf of Melviteen's family, for their creative advocacy for their clients.

The ruling is especially significant for nursing home residents who live in states that do not have laws allowing civil lawsuits for elder abuse or neglect, because such residents can rely on the Grammer v. Hazel ruling to bring elder abuse lawsuits, in federal court, or in state court under federal law. To read the 3rd Circuit's decision, click here.

One open question is to what extent this ruling can be made applicable to nursing homes that are not government-operated but which receive government funds, such as Medicare and Medicaid payments (which virtually all nursing homes do). The lawsuit in Grammer was brought against a county-operated nursing home, under Title 42 U.S.C. Section 1983, which authorizes lawsuits against state-entities for violation of federally guaranteed rights. It is an open question whether a nursing home resident can sue a privately-owned nursing home directly under the Federal Nursing Home Reform Act (FNHRA), but one which the law surely lends itself to.

Felicia Curran
www.ElderAdvocacyLaw.com

The family of a paraplegic woman who fell while in her wheelchair on an outing with an adult day care center is suing the owners of the facility. Shelly Guinn, the victim, was born with cytomegalovirus, which rendered her paraplegic. She is 41 inches tall and weighs 41 pounds. She is totally dependent on her care givers to look out for her. Shelly suffered cuts, scrapes and bleeding from her mouth, requiring care at the hospital.

Shelly’s mother said, “She could break so easily. She could have snapped her neck. She could have died." Shelly’s mother said that she was not given an explanation for how the fall happened, which suggests that no care giver was in the vicinity WHEN it happened, which may be the explanation for WHY it happened. One would think that any care giver who was there could describe what took place. If no one was there looking out for Shelly, then something very easily could have gone wrong to cause the accident.

A common factor to these types of incidents is that the dependent adult's medical or physical condition may prevent them from being able to describe what happened to them.

The article did not say, but the lawsuit is presumably brought under the California Elder Abuse and Dependent Adult Civil Protection Act. The same law that protects adults age 65 and older also protects “dependent adults” ages 18 to 64 who have physical or mental conditions that render them dependent on others. That law provides an incentive for facilities caring for elders and dependent adults to take good care of them by shifting the cost of the victim's attorney fees on to the culpable facility when the injury is the result of "reckless neglect."

One way that Shelly’s lawyer can establish that the incident was the result of “reckless neglect” and not simple negligence is to show a pattern of deficient care at the day care center or others operated by the same company.

The defendants are Ellen and Dan Fischer, the owners of Care Administration and Management Professionals, a day care facility in Dublin. They also operate two similar operations, Community Day Program in Fremont and Dublin Day Program.

You can help Shelly. If you saw the incident involving Shelly or if you have any information about other incidents at the day care facilities operated by Care Administration and Management Professionals, please contact her lawyer, Jay Renneisen, at (925) 280-8900.

To read the article in the Contra Costa Times, click here

Felicia Curran
www.ElderAdvocacyLaw.com