By
Gretchen Rachel Hammond
 |
| Mimi Brun and her mother, Virginia Wahab |
A number of
studies
have found that the greatest fear expressed by senior citizens, a
demographic that’s exponentially growing in number in this country, is
not death but the eradication of their independence if they are forced
to live in a nursing facility. According to
a lawsuit filed on May 8,
that fear became reality for a vital and healthy Detroit-area woman,
Virginia “Jean” Wahab, who spent two years falsely imprisoned in a
Waterford, Michigan, nursing home owned by Lourdes, Inc., and sponsored
by the Dominican Sisters of Peace religious order. The home demanded
payment of what amounted to a ransom of $25,000 to release Wahab from
the facility.
“Mom was a fearless, independent woman before Lourdes took
control of her,” Wahab’s daughter and caregiver Mimi Brun said. “When I
finally got her out of there, it took me a long time to wean her off all
the unnecessary anti-psychotic and anti-depressive drugs they had been
giving her.”
Brun is the plaintiff in the lawsuit, which claims her mother
was subject to false imprisonment, negligence, breach of contract,
malicious prosecution, abuse of court process, and the intentional
infliction of emotional distress. Filed in the Oakland County Circuit
Court, the complaint is a first for Michigan and comes on the heels of
Attorney General Dana Nessel’s
creation of an Elder Abuse Task Force.
Brun said that although her mother had been living alone before
her ordeal began in 2016, by the time she was able to secure
Wahab’s release after a protracted legal battle, “She couldn’t stand up.
She was terrified of being locked in a room and of someone coming to
take her back to Lourdes.”
Before Wahab passed away at the end of April, mother and
daughter were finally able to spend a precious few months together after
having been kept apart by a court order obtained by Lourdes that
severed Brun’s visitation rights.
Short-term rehab to long-term guardianship
According to the complaint, the family’s problems began in
February 2016, when Wahab was admitted to Lourdes Senior Community, a
$21 million nonprofit organization housing 250 residents at four
facilities, for short-term rehabilitation following a recommendation
from her doctor. By April 2016, Wahab’s insurance company, Health
Alliance Plan, had terminated Wahab’s Medicare benefits at Lourdes,
stating that she needed no further services or medication and was
“medically stable for discharge.”
However, the complaint asserts, “Even though Virginia did not
need to be in a nursing home, Lourdes kept her in a section reserved for
terminally ill and dementia patients for over two years [and] would not
release Virginia without the payment of a bill in the amount of
$25,000.”
Court documents show that Lourdes filed a June 6, 2016,
petition for guardianship of Wahab with the Oakland County Probate
Court. During a June 29, 2016, hearing on the petition, Lourdes social
worker Sara Van Acker stated that the organization was seeking
guardianship of Wahab because of “a concern about the nursing home being
paid.”
Without any medical documents regarding Wahab’s alleged
incapacity presented at the hearing, presiding Oakland County Probate
Court Judge Linda S. Hallmark granted the request and appointed former
Oakland County Public Administrator Jon B. Munger as Wahab’s guardian.
Guardianship under scrutiny
Guardianship is a system that has come under scrutiny.
Under guardianship, an individual deemed legally incompetent by a
probate or family court judge must cede their personal rights, freedoms,
financial powers, and medical decisions, often to a total stranger.
Cases in which court-appointed professional guardians have used their
power to exploit and abuse their elderly or vulnerable wards have been
uncovered
nationwide. A 2015 Hunter College/
New York Times study determined that the use of guardianship as a collection agency by nursing facilities has “become routine.”
Despite a
statute
in Michigan’s Estates and Protected Individuals Code (EPIC) giving Brun
priority over a professional guardian in the care of her mother, Judge
Hallmark stated that she was appointing Munger “to make sure we have the
Medicaid application on track [and] get this bill taken care of.”
According to Brun’s lawsuit, Wahab was “kept in Lourdes against
her will in exchange for the Medicaid payments [and] as collateral for
payments it claimed were owed to it by Ms. Brun.”
The fight to be reunited
During the two-year fight Brun waged to have Wahab released
from both the guardianship and the nursing home, the complaint alleges,
Lourdes denied Brun visitation rights and barred her from the
premises; chemically restrained Wahab while denying her personal liberty
and freedom of movement; and obtained an illegal injunction from
Hallmark and a bench warrant for Brun’s arrest unless she paid them
$25,000.
The complaint notes a Feb. 2, 2017, email from Lourdes attorney
Mary Lyneis telling Brun, “We want to be paid. You cannot expect to
show up to see your mother when you have not paid for the privilege.”
A disturbing June 27, 2018,
video
shows a brief reunion between mother and daughter outside the Oakland
County Probate Court before Munger’s attorney Joseph Ehrlich pulls
Wahab’s wheelchair away with such force that Wahab is jolted back in her
seat. Brun said her reaction was visceral and born out of exhaustion,
frustration, and helplessness. “I hadn’t seen my mother for two years,”
she recalled. “They had no right to separate us. What Ehrlich did was
aggressive and illegal. If it was your mom, what would you do?”
Ultimately, Brun decided the answer was to take legal action
against Lourdes and to seek justice—but not only for Wahab. “The
irreparable suffering in my mom’s case, the inhumanity she was subjected
to, the illegalities and the breaches of her legal and human rights
cannot be repeated to anyone else anywhere,” she said.
Respecting rights
Passed in 1987, the federal Nursing Home Reform Act is supposed to require facilities to ensure the
rights and protection
of residents. Representing Brun in the case, Michigan trial attorney
Mark Hafeli noted that the nursing home’s alleged actions were in
violation of those rights. “All federal regulations and resident rights
say that a resident of a nursing home has a right to visits. You can’t
condition a mother’s right to see her daughter based upon the daughter’s
payment of $25,000. To be locked in a nursing home when you don’t want
to be there is a serious wrong,” Hafeli said.
Even though the act stipulates that in cases where a resident
has been deemed incompetent by a state judge, their rights are
transferred to a guardian, Hafeli does not believe it lets Lourdes off
the hook for filing an unwarranted petition in the first place
and holding, isolating, and treating Wahab in a negligent manner.
“According to an expert I have consulted, regardless of what the
guardian may or may not do, the nursing home has a duty to discharge a
person when they don’t need skilled nursing care,” he said, “especially
when there’s a family member willing to take care of them.”
Diane Menio is the executive director of the
Center for Advocacy for the Rights and Interests of the Elderly,
which promotes “the wellbeing, rights and autonomy of older adults.”
Menio said, “There are national trends such as nursing homes going for a
guardianship when they can’t get payment or an application for
Medicaid. But you can’t keep someone hostage until money is paid. A
family member being told ‘you can’t visit because you owe us money’ is
something new to me.”
Menio noted that her organization has lately seen nursing
facilities applying for guardianship of their residents “in batches.”
Such activity raises the question of whether a reason for the increase
in guardianship and nursing home abuse is an increasing senior
demographic that, both politically and culturally, the United States
would prefer to ignore. “Society doesn’t see elderly people,” Menio
agreed. “The abuse of them is underreported. People take advantage of
them. Making sure we have protections in place for the elderly
population is extremely challenging.”
Brun said that her lawsuit is part of a greater elder-abuse
awareness campaign she calls #justiceforjean. “People need to wake up
about the potential for destructive forces in the lives of people they
love,” she said.
Reached by email, Debi Batchelder, assistant to Lourdes Senior
Community CEO Sister Maureen Comer, said the organization had no comment
on the lawsuit or the allegations.
Gretchen Rachel Hammond is an award-winning journalist whose body
of investigative work has focused on social injustice and marginalized
communities. She has just completed a year-long investigation into a
massive, alleged elder abuse and exploitation ring operating out of a
Detroit-area probate court, which will be published soon.
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