THE TRAGEDY OF GUARDIANSHIP FRAUD
What can happen when Court ordered Guardianship goes WRONG

Silverado Senior Living Sued for False Imprisonment and Battery of Elderly

Mack, Tonya and Ruby Ruby During Happier Days

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By: Candice Schwager Houston Small Business Examiner

With allegations of false imprisonment, conspiracy, assault and battery, and intentional infliction of emotional distress for wrongfully denying a 93-year old woman the right to leave its lock down facility. Cause No. 2014-40980; Mackey Glen Peterson vs. David Troy Peterson, Silverado Senior Living of Sugarland, et al.Among other allegations, the lawsuit alleges that Ruby Peterson has been forcibly drugged with dangerous Psychotropic drugs and narcotics, prevented from leaving Silverado's premises since August 23, 2013, denied access to her three sons, a phone and her mail. Ruby Peterson (93) is a long time resident and philanthropist of Baytown, Texas, where she has generously supported Lakewood Church of Christ and other community churches through her giving.

The lawsuit alleges that Ruby's troubles began when her daughter and son, Carol Ann Manley and David Troy Peterson of Sugarland, illegally procured a prescription for Seroquel from David's daughter-in-law, a San Antonio-based Geriatric Psychiatrist who has never examined Ruby. In her 93 years, Ruby has taken only one medication, Prozac, which was also procured by her daughter for depression. Though her daughter has no medical credentials, Carol Ann Manley maintains that her mother suffers from dementia, while her sons insist that their mother is of sound mind with no significant health problems beyond normal aging.Significantly, the FDA has placed a black box warning on Seroquel against the use of this dangerous drug for elderly patients with dementia, citing the risk of death and cerebrovasular incidents. Ruby has a longstanding heart arrthmia, for which Seroquel is not recommended. The Merck Manual, Drug Categories of Concern for the Elderly and American Geriatric Society Beers Criteria Update of 2012 includes Seroquel on its list of Inappropriate Drugs for the Elderly, stating that conventional and/or atypical antipsychotics should NOT be used in elderly patients suspected of having dementia unless the patient is poses a serious risk of harm to himself or others.

The Merck Manual emphasizes that these dangerous drugs are only marginally better than placebo in terms of benefit as compared with their unjustifiable risks. These risks include increased confusion (especially in elderly women), fatigue, confusion, tardive dyskinesia, drug induced parkinsons. Tardive Dyskinesia involves uncontrollable jerk, rapid, unsuppressable movements of the muscles, especially in the face.

Carol Ann Manley and David Peterson placed their mother at Silverado's Memory Care facility in August of 2013 by virtue of their 1993 Durable Power of Attorney over Ruby's HealthCare Needs. This document also grants them the right to complete control of her estimated $2,000,000 estate and trust. Carol Ann insists that her mother is "completely demented" and is nothing more than a shell of a person no longer there, which the spritely 93 year old vigorously disagrees with! The State of Texas apparently agrees, granting Ruby's request for two year extension of her driver's license in 2013, having passed all tests. Her sons are adamant that their mother is quite healthy, as evidenced by her acute sense of humor. A finding of incapacity can only be made by a Texas Judge. Moreover, Texas Law prohibits psychiatric "commitment" or "institutionalization" without a Court Order. No Judge has ordered that Ruby be committed or refused egress from Silverado, yet Silverado is accused of repeatedly refusing Ruby's requests and demands to leave.

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FALSE IMPRISONMENT AND CONSPIRACY

Silverado is accused of falsely imprisoning Ruby against her will in a conspiracy with Carol Ann and David, though they maintain that Ruby has the right to come and go from its "assisted living" facility just like any other patient. Since her August admission, Silverado has found a reason to deny her this right every time she has requested permission to leave, ultimately stating that Carol Ann said "no." Ruby is not permitted to leave for lunch, shopping, social events, holidays, or any purpose other than in Silverado's van. She has been repeatedly denied egress with her sons, with Mack being turned away in November from taking Ruby to his Central Texas home for a vacation as she cried with her bag packed, ready to go.

From November through Christmas of 2013, her sons were denied all contact with their mother, which was only restored when they hired a lawyer to sue for Guardianship in Probate Court No. 1. Ruby spent the holidays under the watchful eye of Silverado personnel after being informed that she could no longer have unsupervised visits with her sons. After Ruby requested that an attorney be retained to prepare a New Durable Power of Attorney last November and signed the same, Silverado personnel called the police and threatened to have them arrested for trespass if they ever returned. In response to their request of when they could see their mother again, they were told "when she's dead." To date, Silverado Senior Living has categorically refused to acknowledge the 2013 Durable Power of Attorney executed by Ruby Peterson, revoking the 1993 POA that is the source of her misery.

Though Ruby remains trapped inside Silverado's Memory Care facility, her sons are now permitted to visit her, subject to restrictions set forth by Carol Ann's attorney,Sarah Pacheco of Crain Caton Probate Firm. They must provide 12 hours notice of their intent to visit to Carol Ann or David. Visits can last no longer than 2 hours and the brothers are not permitted to visit Ruby as a family, but must do so apart.Significantly, Ruby Peterson has not been adjudicated to be "incapacitated" or made a ward of the State of Texas through guardianship proceedings. The Waco Court of Appeals ruled in 1970 that a nursing home commits the tort of false imprisonment by restricting the physical liberty of a person without sufficient legal justification, upholding a jury verdict against Big Town Nursing Home, Inc. for actual and punitive damages. False imprisonment is also potentially criminal, listed as a Class A Misdemeanor.

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CONSTITUTIONAL RIGHT TO LIBERTY AND DUE PROCESS

The 14th Amendment to the United States Constitution eloquently reminds us that,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law....

Inherent in the Due Process Clause is the idea that the United States Constitution is the Supreme Law of the Land and any State law which purports to conflict with it is void ("Supremacy Clause"). The Texas Constitution, Articles I and V echoe this protection. The Elderly Bill of Rights found in Section 102 of the Human Resource Code codifies Constitutional mandates, further listing rights of the elderly, whether or not the individual is incapacitated. In addition to the rights enjoyed by all Americans, the Elderly have the right to be free from exploitation, neglect, abuse, chemical restraints other than in emergency situations, humiliation, invasion of privacy, or unauthorized restriction upon their liberty and ability to participate in social activities. Section 102 specifically addresses an elderly individual's right to unopened mail and free access to communication, such as via telephone.

Yet, this lawsuit alleges that the Defendants have repeatedly and routinely denied Ruby access to her mail or a phone, taken the cell phones purchased by her sons from her, diverted mail she wrote to her sons, and even humiliated her by having two large women strip her nude and shower her when they knew she could do this alone in the privacy of her own room. What seems rather clear under Texas law and Ruby's case is that Silverado is in trouble.

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ANTI-PSYCHOTIC ABUSE IN NURSING HOMES

The July issue of AARP Magazine features a special report on Drug Abuse in Nursing Homes that mirrors what Ruby Peterson is enduring at Silverado Senior Living in Sugarland, Texas. The beginning paragraph details the downspiral and unconscionable death of Patricia Thomas, a 79 year old Alzheimer's patient and is illustrative of the gist of this Nationwide problem. Kathi Levine, Thomas' daughter, says that only 18 days after entering a nursing home, her mother was not the same person she knew any longer, but was found "withdrawn, slumped in a wheelchair with her head down, chewing on her hand, her speech garbled" just shortly before she died--from the heavy duty illegal antipsychotics the nursing home chemically restrained her with. One has to wonder what rationale could exist to drug an elderly women, wheelchair bound, into a drug induced stupor? Levine says it's because "profit is more important than people."

With that statement, the Peterson brothers would agree. But this scenario is by no means limited to Ms. Ruby. In fact, AARP negotiated a large scale settlement with California based nursing homes illegally drugging their elderly patients with antipsychotics on July 14, 2014. This settlement is expected to result in sweeping National reform as nursing homes and assisted living facilities engaged in this unconscionable illegal practice face similar lawsuits.

Some experts estimate that 50-75% of nursing home and assisted living patients are being improperly and/or illegally chemically restrained with these highly dangerous drugs. The reason is clear. Corporations charged with care of the elderly are placing overhead and profits above their ethical, moral and legal obligations to the elderly. Toby Edelman, Attorney at the Center for Medicare Advocacy in D.C. says "when nursing facilities divert funds from the care of residents to corporate overhead and profits, the human toll is enormous."

The United States Department of Justice just settled one of the largest healthcare settlements in U.S. History against Johnson & Johnson and subsidiaries, fined more than $2.2 billion to resolve civil and criminal charges in connection with their aggressive marketing of antipsychotics for improper use in elderly patients. The DOJ found extensive kickbacks to Physicians working in nursing facilities in exchange for prescribing the dangerous drugs. A report issued by the Inspector General of the Department of Health and Human Services in March revealed that as many as one-third of Medicare patients suffered harm in nursing homes from these practices--which was preventable. Inspector General Daniel Levinson said, "Anti-psychotic drugs are intended for people with severe mental illness, such as patients with schizophrenia or bipolar disorder. As such, they carry the FDA black box warning that they are not intended for frail older people or patients with Alzheimer's or dementia. In those poplulations, these drugs can trigger agitation, anxiety, confusion, disorientation, and even death." They can dull a patient's memory and sap their personality, turning them into virtual zombies, according to California Advocates for Nursing Home Reform.

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INVOLUNTARY CHEMICAL RESTRAINT

One of the most egregious allegations in the Peterson lawsuit is that Silverado personnel are engaged in the practice of involuntary chemical restraint of Ruby Peterson. The Peterson brothers' lawsuit attests to witnessing Silverado personnel sneak as many as 11 different medications into their mother's "vitamin drink" after Ruby refused the medications, stating they made her sick. Apparently, the attendant did not inform Ruby that she had "spiked" her vitamin drink and her family reports that within 20-30 minutes, Ruby was almost incoherent, slumped over in her wheelchair and confused--to the extent she could even speak at all. The brothers reported that Ruby was drugged against her will as frequently as three times per day and even awakened during the night for more drugs. Given that Ruby is an extremely tiny, docile woman who is so easily deceived by her naivety, she cannot reasonably be deemed dangerous or violent to justify the involuntary administration of these drugs. So why is she getting them?

California Advocates for Nursing Home Reform cite chronic understaffing and money as the reason for this unconscionable and potentially illegal practice. Nationally, dementia is on the rise by a three fold increase due to baby boomers reaching retirement age. CAHHR explains that these facilities place profits over the needs of dementia patients, grossly understaff facilities with poorly trained CNAs who work for mere dollars per hour with as little as 75 hours of on the job training. There is high turnover due to employee exhaustion and burnout. Nursing home patients require a high level of care and many facilities simply do not want the burden of using behavior modification to control patients' behavior, particularly when a strong antipsychotic will accomplish their objectives for hours to come.

Fortunately, a move is underway to implement more humane, patient-centered treatments and interventions--the Beatitudes Facility in Phoenix, Arizona being a model for reform. Rated by U.S. News and World Reports as one of the top Nursing facilities in the United States, the Beatitudes is not part of a chain, which is probably the recipe in their award winning formula, caring for the elderly. And if the word "Beatitudes" rings a bell, it denotes the Beatitudes in the Holy Bible, with the Campus being an outgrowth of the Church of the Beatitudes.

With statistics showing that hospice experienced a sharp decline in humane practices as it transitioned from a volunteer based organization to a multi-billion dollar industry, the lesson should be clear. Privatization of health care for the elderly in facilities managed by huge corporate conglomerates--is harming the elderly, hastening their deaths unnecessarily and destroying their quality of life. Bloomberg's 2011 feature, "Preparing Americans for Death lets For Profit Hospices Neglect End of Life" illustrates with shocking, rather graphic perspective.

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SILVERADO SENIOR LIVING

Silverado Senior Living is a large corporate conglomerate that operates "memory care" facilities in many States, including California, Arizona, Texas, Utah, Colorado, Washington, Illinois and Wisconsin. In the Greater Houston Metroplex, Silverado operates facilities in Kingwood, Sugarland, Cypresswood, and the Woodlands. The two areas of practice emphasized in Silverado's expertise are memory care and hospice. Harris County District Court records reveal two prior lawsuits against its Cypresswood and Sugarland faciities. With allegations of overmedication similar to those brought in Ruby's case, a Kingwood area woman is currently to file her lawsuit against the Corporation.

The Peterson lawsuit is certainly complex, but the Peterson brothers are hoping that Corporate Executives will take interest in their mother's plight and ensure that prompt, appropriate measures are instituted to recify the harm to them and their mother, as well as prevent this from happening in the future with other patients. A hearing is scheduled for July 28, 2014 in the 129th Judicial District Court on the Peterson Brothers' Emergency Application for Temporary Injunction, in which they hope to secure Ruby's freedom and stop Silverado from drugging her against her will.

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