by A.C. THOMPSON, ProPublica and JONATHAN JONES, special to ProPublica, Aug. 1, 2013
in collaboration with
Inside Room 101 at Emerald Hills, a covert campaign was under way in the fall of 2008. Potentially lethal bed sores were spreading across Joan’s body, and workers were trying to improvise help.
The workers at Emerald Hills lacked both the skills and the legal authority to treat Joan. But they were nonetheless determined to try. Jenny Hitt, a young woman with no medical training who was in charge of handing out medication in the facility, said she and her coworkers rubbed cream into Joan’s wounds, known as pressure ulcers.
“We knew we weren’t supposed to do it,” said Hitt. “We knew we weren’t licensed or medically trained to do it.”
One ulcer began eroding the skin on Joan’s right buttock.
“At first, it was just like a small, round red spot,” Hitt said. Then, she said, the skin started to deteriorate. “The area started to become like a hole.”
Peggy Stevenson, the lone nurse employed by Emerald Hills, told the workers to act secretly, according to Hitt. “She said, ‘Just don’t let anybody know,’” Hitt recalled.
And so the Boice family was kept in the dark, even her husband, Myron, who lived in another room at the facility; so, too, were the more highly trained nurses who had been sent into the facility to deal with what they had been told was a limited threat: a wound on Joan’s foot.
An ulcer formed on Joan’s right heel. Another on her left heel. The ulcer that had previously erupted on the inside of her right foot opened up again.
Susan Reuther spent a lot of time in Room 101. Her mother was Joan’s roommate.
“They told me, ‘This is the worst — we don’t know what to do,’” Reuther said of the workers. “It would take them maybe an hour, an hour and a half, just to roll her over.”
Officials with Emeritus deny that any such improper care took place. Stevenson, when asked years later about Joan’s care, said she could remember nothing about her treatment, and did not even recall who Joan was.
But records suggest Joan’s situation wasn’t unique. Under California law, seniors with serious bed sores, the kind that require sophisticated and urgent treatment, are not supposed to stay in assisted living facilities. The reasons aren’t hard to understand: Assisted living facilities, dreamed up three decades ago as a less restrictive and institutional alternative to nursing homes, don’t have the trained personnel or resources to treat potentially life-threatening conditions.
Yet regulators have repeatedly cited Emeritus for housing residents with severe bed sores.
At a facility in Whittier, investigators discovered a person with a bacteria-ridden pressure ulcer near the base of the spine so deep it needed surgery. A wound care expert said the ulcer was teeming with “numerous” strains of bacteria, a sign the person had “probably gone a couple of months” without treatment, according to a state report.
Investigators cited a facility in San Diego for housing a resident with advanced sores on the right hip and both feet. One of the ulcers “was also gangrenous,” state records show. The person was “suffering from severe malnutrition” and was besieged by Clostridium difficile, an aggressive brand of bacteria that can be lethal.
A woman at a facility outside Sacramento was killed by an infection linked to five pressure ulcers. The state fined Emeritus, saying the woman should have been moved to a setting more appropriate to her needs.
Joan Boice, after a career teaching school, had spent the early part of her retirement volunteering with children eager to read and write. Her marriage to Myron had lasted decades, and her children had gone on to lives of accomplishment.
But Eric Boice, one of Joan’s two sons, had few illusions about his mother’s long-term future when he had helped move her into Room 101 at Emerald Hills in September 2008. Her dementia, a problem for years, had become more severe; she could not really talk; moving around was difficult.
Eric had worked for more than a decade as a police officer. He could stare at an unpleasant truth.
“We knew that my mom’s disease was progressive,” he recalled. His chief concern, then, was making sure his mom was “treated with the utmost dignity and honor and respect.”
The Boice family had paid handsomely to make sure that happened. In less than three months, the family had paid more than $12,000 to cover Joan’s room, care and meals.
“Retain the Residents as Long as You Can”
A May 2008 memo from a senior nurse at Emeritus to two other supervising nurses in California included an agenda for an upcoming strategy meeting:
- Back Door
To those outside of Emeritus, a publicly traded company that has expanded dramatically in recent years, the memo’s third agenda item might have been inscrutable. But within the company, people knew what it meant. Emeritus was intensely focused both on persuading people to move into its buildings and dissuading them from moving out. They did not want paying customers to, as they put it, go out the back door.
Around the company, the subject came up regularly. And the emphasis on the policy aim could be explicit and emphatic.
“KEEP THE BACK DOOR SHUT!” shouted a 2009 email from a nurse named Nicole Jackson, who oversaw Emeritus facilities in Northern California.
In an internal 2010 company newsletter, Emeritus touted the success of employees in San Antonio, Texas: “These dynamos really have grown occupancy this year due to closing the back door! They’ve decreased their move outs by 4 per month!”
In an email sent the same year, Budgie Amparo, the nurse who served as head of quality control for the company, thanked Emeritus nurses around the country. “I would like to recognize our nurses for their unbelievable focus” on “the back door,” he wrote.
Emeritus employees at all levels describe a company consumed. Former nurse Doris Marshall said that “closing the back door” was one of her chief responsibilities. “It meant to retain the residents as long as you possibly can,” she said.
The company tracks move-outs closely at each of its hundreds of facilities, gauging the trends and patterns from region to region.
Its officials describe the zeal for retention as benign — nothing more than a good-faith effort to please customers and adjust services and care for residents whose needs change over time. A resident may dislike the meals or squabble with the ornery guy in the apartment down the hall. Perhaps a person can’t quite afford the monthly fees.
Emeritus wants “to ensure that the residents do not choose to move out because they are dissatisfied,” the company said in a written statement. “We do monitor move-outs so that we can identify and correct any issues and enhance resident satisfaction.”
But some people who have worked for the company, as well as some families who have endured painful episodes at Emeritus facilities, said the pressure to “close the back door” has led to dangerous lapses in judgment. In some cases, former employees said, the company failed to move out residents who should have been sent to nursing homes or other medical institutions.
ProPublica and PBS Frontline sifted through thousands of pages of regulatory records from seven states — Texas, California, Iowa, Mississippi, Georgia, Ohio and Florida. Since 2007, inspectors in each state have cited Emeritus for housing seniors who should have been moved out.
Regulators in Iowa faulted an Emeritus facility near Des Moines three times in less than two years. One case involved a 77-year-old with Alzheimer’s who repeatedly attacked other residents, groped female residents, and eventually had to be hauled out of the building by police officers. Another case centered on a resident with severe dementia who flipped over tables in the dining room and urinated on them, according to a state report. Nearly two months before state investigators showed up, a doctor had determined the resident needed a “higher level of care” and had passed that message on to the facility.
Iowa law bars facilities from renting rooms to people who are “sexually or physically aggressive.”
Regulators in Mississippi, Georgia and Texas have repeatedly cited Emeritus for housing wheelchair-bound seniors who could barely move at all. At a facility in Smyrna, Ga., investigators concluded that 15 of 35 residents shouldn’t have been there. The state labeled the violations an “imminent and serious threat to resident health and safety.” In Clinton, Miss., the number was 10 of 81, according to the state.
Emeritus disputed some of the findings by Mississippi’s regulators.
“We have no interest in preventing people from moving out,” said Emeritus founder and chairman Daniel Baty.
Emeritus does set precise move-out targets for all of its buildings, however. One such target was articulated by an Emeritus vice president in a 2008 memo sent to employees in California. The executive wanted fewer than 3.5 people to move out of each facility per month, apparently including those who died.
The emphasis left staffers confused and fearful, according to interviews and sworn testimony. Next to none of the workers at a place like Emerald Hills had the medical background to assess the changing conditions of the residents.
Emeritus workers said the corporate push to “close the back door” made them hesitant to transfer patients to nursing homes or hospitals. They understood their decisions were being closely watched and that there could be consequences if they missed their marks on occupancy and revenues.
Nancy Cordova ran the Emerald Hills facility while Joan Boice was there. She later testified that the “close the back door” policy left her feeling pressured into housing “high acuity” clients – those with serious health problems -- and uncertain about where the line should be drawn in any given case.
A 2008 email suggests that facility directors like Cordova wound up looking to senior executives to make determinations on who was truly sick or challenging enough to open the back door for. In the email, Cordova asks her superiors about a small roster of people considering moving out of Emerald Hills. One wanted round-the-clock care. A second was more complicated: The resident had Parkinson’s disease, a degenerative disorder of the central nervous system, and needed three or four people to help get her in and out of bed.
“Just for added fun,” Cordova wrote of the resident, “she has severe hallucinations that are disturbing to her and the staff.”
It is unclear what the supervisors told Cordova to do.
Lisa Paglia, a former regional sales manager, said, in her view, “keep the back door closed” could be translated into another, more blunt, phrase:
“Don’t let anybody move out unless they were deceased.”
“I Don’t Know How She Sat”
At Emerald Hills, Joan, her sores multiplying and worsening, became ever more isolated.
She sat for hours in her wheelchair. She seemed smaller. Depressed. She rarely ate or drank much. Her weight dropped. The muscles in her right arm had seized up due to inactivity, locking at the elbow.
The ulcers on Joan’s heels deepened. They began to blacken as the skin died. The sore on her buttock was chewing through her skin and into the fat beneath.
Joan groaned. She frowned. But she couldn’t speak.
Danielle Woodlee, who served as a kind of concierge at Emerald Hills, was struck by Joan’s deterioration. “It was almost like a movie,” she remembered. “I mean, the decline, it was just horrible.”
And Emerald Hills still hadn’t told the family what was going on underneath Joan’s clothing.
Joan’s physician would later say that Emerald Hills never informed her of many aspects of Joan’s deterioration – that she had fallen and been taken to the hospital, that she had become confined to her wheelchair, or that she was losing so much weight.
One Saturday morning, Eric showed up at Emerald Hills with Joan’s morphine, prescribed for the pain caused by a problem with her spine. He couldn’t find any Emeritus employees save Woodlee. He stalked through the memory care unit. He looked in the medication room, and the nurse’s office.
“I couldn’t find anybody,” he said.
After 20 or 30 minutes, Eric Boice left the drug with Woodlee, the concierge. The episode made him furious.
If he had seen Joan’s medication charts, his fury likely would have been exacerbated. The charts showed that on some days nobody gave Joan her morphine at all.
Eric began looking for the facility’s nurse and managing director every time he came to Emerald Hills. He could never find them. Woodlee later said there was a reason for it: She helped the senior officials hide out in her office when they knew a Boice family member was coming for a visit.
November became December. It was then that Emerald Hills formally notified the Boices of Joan’s true and now dire condition. Peggy Stevenson contacted Kathleen Boice, Eric’s wife. In an email, Stevenson said that because of Joan’s deteriorating health, she needed to be transferred to a nursing home.
Kathleen was stunned. “This was the very first time we had ever heard anything like that,” she said.
Three days later, Joan was admitted to a nursing home about a half-mile from Emerald Hills. Kathleen sat with her as a nurse examined her skin.
The nurse started with the first ulcer Joan had developed, on the side of her right foot. “It was an oozing, open sore,” Kathleen said. “There was another sore on that foot, back by the heel, and it was black. Then they took off her other sock.”
“There was a sore. It took up her whole heel. And it was black and oozing red. And not to be rude, but it smelled so bad. It was putrid. You could tell it was decaying.”
The nurse put Joan in a hospital gown. Kathleen saw more wounds, including a fluid-laden blister bulging on the inside of one arm. “Then they took off her diaper. And there were two spots on her right hip that were red. It looked like the skin was starting to come off. There was a similar spot on the left side,” Kathleen said.
Joan grimaced when the nurse touched her. Kathleen held her hand.
“I thought we were about done,” Kathleen said. “And they rolled her over and then we found the one that was on her sit bone.”
It was huge. And black. And oozing.
“It was more putrid than the one on her heel,” Kathleen said. “I don’t know how she sat. It was horrible.”
Kathleen phoned her husband, who had left the nursing home to drive his father back to Emerald Hills. “She scared me,” Eric Boice said of his wife. “She couldn't talk. She was just sobbing. And I — and I didn’t know if she had been in an accident. I didn’t know what happened. She just started to say like, ‘The sores … the sores are all over her.’”
On Valentine’s Day, 2009, Joan died. Myron, her husband of some 50 years, was dead nine months later.
California regulators eventually cited Emeritus for improperly housing Joan despite her serious bed sores.
Joan’s death set off some agonizing soul-searching for her family.
Eric Boice was haunted for years. His mother visited him frequently in his dreams, he said. In those dreams, she was healthy and lucid and able to communicate. They talked. And Eric told her he was sorry “for not being the voice that she needed, for not demanding more of the people that we trusted with her care.”
Eric also heard from Emeritus.
Its collections department sent him a bill. Apparently, Eric hadn’t given the company sufficient notice when his mother went to the nursing home at the beginning of December. Emeritus wanted $14,175 to cover Joan’s rent and fees for December, January and February.
“Malice, Oppression, Fraud”
The Boice family sued Emeritus not long after Joan’s death, and in late 2012 the trial was looming. It was then, the family says, that Emeritus made an offer to settle the case: more than $3 million.
There were several standards terms in the proposed deal. According to Eric Boice, the company demanded that the family return the extraordinary array of internal records their attorney, Lesley Clement, had obtained from Emeritus: spreadsheets, memos, emails, policy directives, budgets, personnel files.
Emeritus would admit no wrongdoing under the proposed settlement. None of Joan’s relatives would ever be able to talk publicly about the case. And the transcripts of 160 hours of depositions of company officials would remain under seal forever.
Eric Boice said the family ultimately decided to reject the offer. “We would not have been able to share my mom’s story,” Eric said, adding: “That was part of the bargain for the money.”
Emeritus declined to discuss details of any proposal but did not deny its existence.
Weeks later, the case went to trial and Joan’s story unspooled over two acrimonious months inside Courtroom 45 in downtown Sacramento. Nearly 40 witnesses took the stand. There were dozens of exhibits. The Boice family was there throughout, as were a team of Emeritus lawyers and two senior executives.
“Emeritus is not a health care provider. Emeritus is a real estate acquisition company,” Clement said in her opening statement on Jan. 7, 2013. “Emeritus should never take any elders into the buildings that it acquires because they don’t have the staff, they don’t have the training, and they don’t have the supervision to provide the care that Emeritus advertises.”
For Emeritus, the risks were not confined to the trial inside Courtroom 45. Headlines about an unfavorable jury verdict can linger on the Internet for years, scaring off would-be customers across the country. Emeritus mounted a vigorous defense.
“The diseases of aging are despicable sometimes,” Bryan Reid, the lead lawyer for Emeritus, told the jury that day in January. “There will be no dispute that what the Boice family had to go through was not pleasant.”
Joan Boice’s death, he argued, was not caused by neglect, but by the very serious illnesses she suffered from when she arrived at Emerald Hills, including dementia. If Joan had been neglected, why hadn’t her family taken action? Why hadn’t they reported any alleged neglect to the authorities? Why had they not moved her out?
“It will be clear at the end of this trial, I believe, ladies and gentlemen, that Emerald Hills fulfilled its obligations,” Reid said in his opening statement. “Its staff did what they were able to do as part of this team that was shepherding her through her journey.”
As Clement called witnesses and introduced internal company memos and emails, she hammered at what she argued were the company’s broken promises: Emeritus didn’t have the adequate staff it had advertised; that staff wasn’t properly trained, as the company had boasted; the company’s fixation was with occupancy rates, sales and containing costs, and not on care.
Dorothy Ting, who had run an Emeritus facility in Fairfield, Calif., testified that the seniors in her facility’s memory care unit ate out of metal dog bowls because the company would not spend the money on more appropriate dishes.
Nancy Cordova, who ran the Emerald Hills facility during Joan’s stay, was asked a pointed question by a member of the jury. Was it fair to say, the juror asked, that Cordova, responsible for 80 or so residents, many of them with dementia, was “in over her head”? “I think that would be fair to say,” answered Cordova.
One of the trial’s most dramatic episodes involved the testimony of Budgie Amparo, a senior Emeritus executive and the highest-ranking company official with any kind of medical background. Amparo, a registered nurse, had described himself as the person ultimately accountable for the safety and well-being of the thousands of elderly men and women living in the company’s vast portfolio of buildings.
However, Clement’s questioning of him, both before the trial and on the stand, called into question whether his career experiences in nursing were sufficient to shoulder that responsibility.
Amparo, who earlier under oath had described himself as the “pillar of quality” at Emeritus, testified that he had earned a master’s degree in nursing by taking online classes offered by the University of Phoenix. He had done no clinical work as a part of the program. Amparo also had to admit that he had failed his board exams at least twice before finally gaining his accreditation as a registered nurse.
In Courtroom 45, Clement explored with Amparo one of the aspects of Emeritus’s operations that she regarded as particularly questionable: the requirement that nurses who worked for Emeritus were responsible not only for medical care, but for filling its buildings with new residents through sales.
“Since when were nurses supposed to be sales and marketers, sir?” Clement asked Amparo.
“They are not,” he said.
“Since when are nurses supposed to be worried about meeting financial goals of Emeritus?” Clement persisted.
“They are not supposed to,” Amparo said.
“Isn’t that what Emeritus requires, according to their job description?” Clement asked, referring to one of her exhibits.
“That’s what the document says, yes,” Amparo replied.
In the end, the two sides fought most bitterly over the question of Joan’s death — what had caused it and who was responsible.
Clement hired Dr. Kathryn Locatell, a forensic geriatrician, to provide expert testimony. Locatell pointed to Joan’s dramatic decline at Emerald Hills — in particular her dramatic weight loss and festering bed sores, which can be prevented or minimized with proper attention — as signs of neglect. Locatell testified that these factors had been critical in Joan’s demise. She estimated that Joan could have lived another three to five years if she had been properly treated at Emerald Hills.
Emeritus’s lawyers countered that the staff at Emerald Hills had worked tirelessly to tend to Joan. And they pointedly asked why, if Joan had been so neglected, no one ever made a formal complaint about it – not the Boice family, not the outside nurses who saw her, not her own doctor.
A neurologist hired by Emeritus ascribed Joan’s death to her advancing Alzheimer’s and a string of strokes. “She was having a series of small and accumulating strokes” in the left side of her brain, Dr. Richard Tindall testified, “leading to progressive weakness and inability to use her right side.” “This was one stroke on top of another, on top of another,” he added.
On the last day of February, the lawyers summed up their cases. Clement reminded jurors of the company’s slogan.
"‘Emeritus is committed to your family.’ Remember that? Remember their promise painted on the walls of their buildings, on their website?” she asked. “‘Our family’s committed to yours.’ But the evidence is, the truth is, Emeritus is committed to your family’s money. That’s what they are committed to.”
She continued, “Emeritus told Joan, ‘Trust us,’ and Emeritus told you to trust them. Trust their officers, their directors, their managing agents, and yet when they came into this courtroom they lied to you. They lied to Joan Boice. They lied to her family, and they lied to their own employees.”
Reid staunchly defended Emeritus’s ethics and its record. He said Clement had distorted facts, misrepresented the company’s policies and enlisted a bunch of disgruntled former employees to make false allegations. It amounted to a stock formula for litigating an elder abuse case, he said.
“The tragedy is the vicious allegations,” Reid said. “It’s not the care.”
On March 1, the jury got the case, and after two days of deliberations, its members filed back into Courtroom 45. They had reached unanimous verdicts on more than a dozen questions, finding the nation’s largest assisted living company had acted with “malice, oppression and fraud” — and that its negligence had caused Joan’s death. The jury awarded the Boice family $3.875 million for pain and suffering — a figure that was automatically reduced to $250,000 under California law.
There was more work to do, however. The jury convened again to settle on a number, a dollar figure Emeritus would have to pay in punitive damages. The figure came back: $22.9 million. Two jurors had actually wanted to award more.
Emeritus promptly appealed, asking the trial judge, Judy Holzer Hersher, to reduce the punitive damages or order a new trial.
It would be three months before Judge Holzer Hersher handed down her ruling. But on June 10, she denied the company’s appeal in all respects. The award was lawful, she ruled. Clement had proved her case. And the evidence had shown that the company’s most senior officials were well aware of the troubles at their facilities, including Emerald Hills.
Eric said he is glad the family took the case to trial. He is grateful for the $23 million total jury award, but says Emeritus’s refusal to acknowledge any wrongdoing or failure or error has caused a kind of ambivalence to grow in his mind.
“Technically, yeah, we won and Emeritus lost,” Eric said. “But to me it’s bigger than that. It’s more about right and wrong. And I don’t feel that with this loss Emeritus is doing anything different. I honestly don’t think they have changed their practice, their business as usual.”
The jurors, in calculating their award, appear to have sent a message to Emeritus about its business practices. They came to the $22.9 million in punitive damages by adding together the 2011 compensation for Emeritus’s chairman and chief executive officer.
And then the jury took a step to make sure Emeritus didn’t forget Joan Boice, the Illinois farm girl who had come to California to chase a dream, and who, in an effort to hang onto her dignity near the end of her life, signed on with Emeritus Senior Living.
The jury tacked on 81 cents to the award — Joan’s age when she moved into Room 101 at Emerald Hills.