Monday, August 13, 2007

Elder 92 year Old Starved to Death After Paying Rent and Losing his Savings to Elder Financial Abuse

BY ERIN L. NISSLEY Staff Writer The Times Tribune - PA, USA

The 92-year-old had been paying $300 a month for a room and care from Helen and Walter Pestinikas. Instead, the couple starved Mr. Kly to death, keeping his family from him while they drained more than $30,000 from his bank account.

When the couple, who operated a funeral home on North Main Avenue, were charged with third-degree murder in Mr. Kly’s death, they argued that they had no obligation to care for him. Prosecutors argued that they did, because they had a contract to do so.

The Pestinikases’ convictions in February 1987 was precedent-setting — it was the first time anyone had been convicted of murder for failing to live up to the terms of a care contract, according to then-District Attorney Ernie Preate Jr.

Appellate courts struggled with the issue of whether the Pestinikases had a legal obligation to Mr. Kly. As the couple’s conviction was overturned by the state Superior Court and reinstated by the same court in the space of two years, it became increasingly evident that there needed to be a law that specifically dealt with caregivers and care homes, experts say.

Last month, a Carbondale doctor was charged using the law that grew out of Mr. Kly’s death more than 20 years ago: neglect of a care-dependent person.

Gregory Salko, M.D., is facing the charges after investigators began looking into the November 2006 death of 69-year-old Peggy Rogers. An Alzheimer’s patient at Birch Hills Residence in Simpson, Ms. Rogers was taken to the hospital in August 2006 and diagnosed with late-stage breast cancer.

Dr. Salko, her primary care physician and the owner of Birch Hills, is accused of lying about examining Ms. Rogers and ignoring the cancer, which spread to her lungs, liver and bones and ultimately killed her.

If convicted of both the felony and misdemeanor neglect charges, he could serve up to 25 years in prison.

The problem with the Pestinikas case was that the law did not then specifically target caregivers who had contracts to provide assistant to patients. The state Superior Court reversed the Pestinikases’ conviction in 1991, ruling that the couple did not have a legal obligation to care for Mr. Kly.

“There was no law on the books regarding a caregiver (with) a contract neglecting a patient,” Mr. Preate said. “There were civil remedies, but it wasn’t a crime.”

A year later, the state Superior Court reinstated the Pestinikases’ third-degree murder conviction, after all nine Superior Court judges agreed to hear arguments at the request of then-Assistant District Attorney Michael Barrasse, now a judge.

In his concurring opinion, Superior Court Judge Patrick Tamilia said that ignoring the Pestinikases’ responsibility to Mr. Kly “is to repudiate the laws of society and return to the laws of nature,” according to previous articles.

Mr. Pestinikas died in prison in January 1994 at age 69.

Around the same time as that Superior Court decision, state legislators were hearing from people involved in the Pestinikas case and other elder neglect cases. Both Judge Barrasse and a deputy attorney general representing Mr. Preate testified before the House Aging and Youth Committee in 1992 about the need for a bill protecting the elderly from caregiver abuse, according to newspaper articles.

Ronald Costen, Ph.D., was another key player in the fight to introduce legislation, one of many responsible for the neglect of a care-dependent person statute Dr. Salko is now facing.

Dr. Costen is the director of Temple University’s Institute on Protective Services and a nationally recognized expert in aging issues. In the late 1980s and early 1990s, he was a professor at Marywood University and an assistant district attorney in Lackawanna County before joining the state attorney general’s office.

The Pestinikas appeals, as well as cases against Philadelphia assisted-living facilities he prosecuted as a deputy attorney general, led to his involvement with the introduction of legislation dealing specifically with caregivers and care homes.

“It grew out of the arguments and issues in the Pestinikas case,” Dr. Costen said of the neglect of a care-dependent person statute. “They had agreed to care for him in exchange for a fee, which is part of the statute as written.”

Before the neglect of a care-dependent person statute was passed in 1995, care homes that neglected or abused patients could only be fined and have their operating license revoked.

“We wanted to send a message,” Dr. Costen said. “The neglect statute allows (judges) to put them in prison if the health, safety and welfare of patients aren’t protected.”

Another problem in prosecuting such cases was proving that a caregiver or care home contributed to a patient’s death, according to Dr. Costen.

“The defense was it was a failure-to-thrive case, that nothing they did helped,” he said. “So many patients at these homes have disorders, it would be hard to show exactly what act or acts contributed” to impairment or death.

So the law was written to require prosecutors to show that the defendant caused bodily injury, meaning pain or impairment, or serious bodily injury, meaning serious disfigurement or death, Dr. Costen said.

The advent of the neglect of a care-dependent person law opened another avenue for elder care experts, like the area agencies on aging.

“It’s still relatively new, the older adult protective services laws,” said Teresa Osborne, executive director of the Lackawanna County Area Agency on Aging. “People don’t want to talk about elder abuse. Older adults are afraid to report it. This sheds a lot of light.”

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