Problem: ABUSIVE SEARCH

A nurse in People v. Coe 17 was charged with a willful violation of the Public Health Law in connection with an allegedly abusive search of an 86-year-old resident at a geriatric center and with the falsification of business records in the first degree. The resident, Mr. Gersh, had heart disease and difficulty in expressing himself verbally. Another resident claimed that two $5 bills were missing. Nurse Coe assumed that Gersh had taken them because he had been known to take things in the past. The nurse proceeded to search Gersh, who resisted. A security guard was summoned, and another search was undertaken. When Gersh again resisted, the security guard slammed a chair down in front of him and pinned his arms while the defendant nurse searched his pockets, failing to retrieve the two $5 bills. Five minutes later, Gersh collapsed in a chair gasping for air. Coe administered cardiopulmonary resuscitation but was unsuccessful, and Gersh died. Coe was charged with violation of the New York Penal Law for falsifying records because of the defendant's "omission" of the facts relating to the search of Gersh.

These facts were considered relevant and should have been included in the nurse's notes regarding this incident. "The first sentence states, ‘Observed resident was extremely confused and talks incoherently. Suddenly became unresponsive.' This statement is simply false. It could only be true if some reference to the search and the loud noise was included." 18 A motion was made to dismiss the indictment at the end of the trial. The court held that the search became an act of physical abuse and mistreatment, that the evidence was sufficient to warrant a finding of guilt on both charges, and that the fact that searches took place frequently did not excuse an otherwise illegal procedure: 19 It may well be that this incident reached the attention of the criminal justice system only because, in the end, a man had died. In those instances which are equally violative of residents' rights and equally contrary to standards of common decency but which do not result in visible harm to a patient, the acts are nevertheless illegal and subject to prosecution. A criminal act is not legitimized by the fact that others have, with impunity, engaged in that act.

Ethical and Legal Issues

1. With the number of senior abuse cases occurring so frequently, discuss why society waits for extreme violence to occur before preventative actions are taken.

2. Having studied ethics and the moral breakdown that appears to have occurred in society, what steps do you believe can be taken to reverse the trend of violence faced by our seniors?