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Nursing home staff interrupts sexual assault of patient, waits to report it

After finding an 88-year-old woman being sexually assaulted by another resident, a Gowanda nursing home’s staff waited more than six hours to call police and destroyed possible evidence, the state Health Department has determined.

Now the woman’s family is suing the Gowanda Rehabilitation and Nursing Center, alleging its negligence allowed the assault to occur.

A certified nursing assistant heard the woman in her room saying, "No, no," at around 4:30 a.m. May 29 and found a 73-year-old male resident on top of the woman in her bed, with his pants around his ankles, according to a Gowanda Police Department report. The woman’s gown was over her head, and her underwear was partially off.

The man had been in her room for 37 minutes, a nursing home staff member later determined after reviewing videotape footage of the hallway, a Health Department investigation found. 

The staff did not secure the woman's underwear, clothing or sheets as evidence, according to the agency.

Both the male and female resident had been diagnosed with dementia prior to moving into the nursing home, according to the Health Department's report. The female resident, who has "severe cognitive impairment," also suffers from depression and is unable to get out of bed without the help of a mechanical lift. The man, who has "moderate cognitive impairment," had no history of inappropriate sexual behavior before moving into the nursing home in May. 

A staff member wrote in a statement to police that the man "knew what he was doing, but I don't think he knew with who. He seemed confused."

Jennifer Page removed her father from Absolut Care of Aurora Park nursing home in East Aurora because she said it provided poor care. She's started an online petition asking New York State to shut down the facility and is organizing a protest outside the facility at 11 a.m. Sunday, April 28. (Sharon Cantillon/Buffalo News)

The nursing supervisor later told a state investigator that she assessed the woman “from head to toe” and found no signs of sexual intercourse. The nursing supervisor ordered staff to check on the man every 15 minutes and directed that only female staff members should care for the woman.

When a staff member checked on the woman around 8 a.m., she saw no signs of trauma when she cleaned the woman and changed her underwear, according to her statement to police. But the woman was reaching toward her pelvic area while saying, "Ugh, ugh, get it off!"

When a social worker interviewed the woman shortly afterward, she did not seem agitated, the social worker told police. "Resident was alert with confusion, made eye contact, smiled at writer but made no sense and stuttered. When asked how she slept last night, resident shook head up/down," the social worker wrote.

Shortly before 10 a.m., a physician assistant examined the woman and determined that she “was the victim of sexual assault and sent to the hospital for a sexual assault assessment,” according to the Health Department report. 

The nursing home called an ambulance at around 10:11 a.m., according to a police report, and then called police 25 minutes later, according to the report. The woman was taken by ambulance to a nearby hospital, where she was examined, and was later taken back to the nursing home.

That afternoon, the male resident was moved to another unit in the nursing home, and a motion detector was put on his door, according to the state report, and “stop sign banners were placed across female resident rooms.” He was also sent to an emergency room for a psychiatric evaluation.

It could not be determined if criminal charges were filed against the male resident. The Cattaraugus County district attorney could not be reached.

The police report and the Health Department were provided to The Buffalo News by the attorney who filed suit on behalf of the woman and her family.

The Department of Health found in July that the Gowanda Rehabilitation and Nursing Center was out of compliance with a number of regulations, including failing to: ensure the resident’s right to be free from abuse; report the incident to local police and the state Department of Health within two hours; thoroughly investigate the allegation of assault; and secure potential evidence, including the woman’s clothing and sheets.

A spokesman for the Health Department did not respond to a question asking whether the nursing home had been fined or otherwise penalized. 

“Multiple deficiencies were cited at Gowanda Rehabilitation and Nursing Center, and we will continue to hold providers accountable for their actions,” Jeffrey W. Hammond wrote in an email to The Buffalo News.

In a letter to the woman’s daughter in July, a Health Department official said that the nursing home had been required to submit a correction plan to indicate what steps would be taken to come into compliance.

“Please know that your concerns were given serious consideration and were carefully addressed during the course of this investigation,” wrote Gloria A. Duffey, the Buffalo area office acting program manager in the Division of Nursing Homes.

The lawsuit was filed by Angelo S. Gambino, an attorney with Brown Chiari, on behalf of the 88-year-old woman’s daughter, who is acting as her power of attorney. The suit names the nursing home and the company that owns it, Personal Healthcare, which is based in Tarrytown. The suit also names Ephraim B. Zagelbaum, owner of the nursing home, and Alexander Barth, an authorized official of the nursing home. The woman's alleged attacker was not named as a defendant in the lawsuit.

Phone calls to Zagelbaum, Barth and the nursing home were not returned.

Gowanda Rehabilitation, which has about 130 residents, is rated by the federal government as a two-star — or below average — nursing home.

State investigating sexual assault allegation at Gowanda nursing home

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