Murder charges against rehab center are a first in California

Feb. 28, 2016 3 AM PT

Gary Benefield was in rough shape when a driver from the substance abuse treatment company A Better Tomorrow met him at the San Diego airport in 2010.

It was the day before his 53rd birthday. The longtime smoker had recently been hospitalized for pneumonia and was tethered to an oxygen tank, which he had relied on for years. He was seeking treatment for a drinking problem and had signed himself up for a round of detox and rehab.

Sometime that night, he collapsed by his bed at a Murrieta residential facility and died. The house manager, who was supposed to check on him regularly, had fallen asleep. Benefield’s body was found in the morning.

The family sued, reaching an out-of-court settlement.

What came next sent a jolt through California’s large drug and alcohol rehabilitation industry. The state attorney general’s office pursued second-degree murder charges against A Better Tomorrow and four of its employees — the first time in California history that a corporation had been accused of murder, according to the facility’s attorneys.

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The indictment, returned by a Riverside County grand jury, comes as California prosecutors have moved aggressively against healthcare providers accused of putting profits before patients. Just this month, a Rowland Heights doctor was sentenced to 30 years to life in prison after a Los Angeles jury found her guilty of second-degree murder for overprescribing drugs to three patients who fatally overdosed, one of the first such murder convictions in the nation.

Legal experts say the criminal case against A Better Tomorrow is a warning to California’s treatment centers — an industry with more than 1,500 facilities across the state.

The prosecutor has argued that the company, in its drive for profit, accepted a client it was not prepared to care for and killed him by failing to refill his oxygen and allowing employees with little or no medical training to give him drugs that made it harder for him to breathe. Benefield was the fourth person to die after checking into the facility in a little over two years.

At a recent hearing, Riverside County Superior Court Judge Elaine M. Kiefer said she found some practices at the facility “troubling to say the least” but questioned whether they amount to murder.

To prove the corporation guilty, prosecutors have to show that its employees, acting in the scope of their duties, knowingly acted in ways that endangered Benefield’s life, legal experts said.

Defense attorneys have asked Kiefer to throw out the charges, accusing the attorney general’s office of prosecutorial misconduct and saying Deputy Atty. Gen. Joel Samuels unfairly presented evidence to the grand jury. The prosecutor, they said, failed to call as a witness the coroner who found that Benefield died of natural causes.

“There simply was no homicide here,” attorney Benjamin Gluck told the court.

Kelly Strader, a professor at Southwestern Law School, said the attorney general’s office may have filed the charges as a warning to treatment facilities “that you’d better clean up your act. We’re going to take this very seriously.”

A 2012 report by the California Senate Office of Oversight and Outcomes, which outlined the four deaths at A Better Tomorrow, among others, said that the state had failed to police treatment homes, “with deadly results.”

In March 2008, Roberta McMinn, 68, died three days after being admitted to A Better Tomorrow. Her death was attributed to heart disease and intoxication with an antidepressant, the Senate report said.

State investigators concluded that the facility had done nothing wrong in her case. But the report said “there appeared to be grounds for further investigation,” given indications “the program was providing medical care, contrary to state law.”

In February 2009, another client with a history of medical problems died the day he arrived for treatment, after apparently suffering a seizure, the report said.

Later that year, a third client died after being taken to a hospital. The facility’s records showed that he was incontinent, jaundiced and weak when he arrived and had told employees he suffered from liver disease, according to the Senate report, but he was not medically assessed.

Separate death investigations by the state Department of Alcohol and Drug Programs following those cases found the company deficient for failing to provide “safe and healthful accommodations” and for not completing a “physical health assessment” for a client who died.

Two former employees of A Better Tomorrow’s call center, where salespeople handled calls from prospective clients, described in court records how they worked in a high-pressure environment with a mandate to fill beds. Former Operations Director Jose Ochoa said in a declaration filed as part of a lawsuit brought by Benefield’s widow that staff “were under tremendous pressure to bring in paying clients … regardless of any health issues.”

Michael Cartwright, chairman and chief executive of American Addiction Centers, which was formed in 2011 following a merger involving A Better Tomorrow and other health-related businesses, said that far from focusing on profits, employees’ “number one focus is to save lives.” In an interview with The Times, Cartwright said people in treatment frequently die.

“The population that we work with on a daily basis has health problems, mental health problems. Multiple scenarios occur where people pass away inside treatment facilities,” he said.

Benefield, who lived in Springerville, Ariz., decided to enter rehab in the summer of 2010, after being hospitalized with pneumonia. He and his wife set about searching for a facility that could handle his medical needs.

He was “totally pumped to go,” his stepdaughter, Jessica Barker, recalled.

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Jody Brueske, a call center worker for A Better Tomorrow who sold Benefield a stint in detox and rehab, said she asked her boss, Tami Scarcella, whether they could accommodate Benefield’s need for oxygen. Scarcella assured her they could, Brueske said in grand jury testimony. But Ochoa, who was fired in 2012, said he told a company director, James Fent, that they were not equipped to care for Benefield.

When Benefield arrived at the airport, he was met by driver Robert Swensrud, who noticed that he smelled of alcohol and that he was staggering and wheezing. His oxygen had been drained for the flight.

“I could immediately tell that he was very sick,” Swensrud said in a declaration filed in support of Kelly Benefield’s lawsuit. Swensrud said he asked Benefield if he wanted his oxygen tank filled and Benefield declined, saying he would be fine before arriving at the facility.

Swensrud said he called his supervisor, Meg Dean, who told him to give Benefield two tablets of Serax, an anti-anxiety drug often used to treat alcohol withdrawal, to calm him. He gave Benefield the pills from a “‘house supply’ of prescription medicines.”

In court records and state investigative reports, multiple employees similarly described giving detox clients medications before they had been prescribed.

When Benefield arrived at the detox home in Murrieta, House Manager Kris McCausland gave him more Serax and Trazodone, an antidepressant, according to a report by a state licensing official who investigated the death. McCausland told the official that Benefield had said he would be fine without his oxygen tank filled until the next day.

State experts Dr. David Smith, who served as medical director for the agency that previously regulated treatment facilities in California, and Dr. Joseph Cohen, the former chief forensic pathologist for Riverside County, told the grand jury that Serax would have inhibited Benefield’s breathing, compounding his lack of supplemental oxygen and ultimately contributing to his death. Both men were retained as experts in Kelly Benefield’s civil lawsuit.

The grand jury indicted the company, McCausland, Fent, Dean and Jerrod Menz, the founder of A Better Tomorrow, on murder and dependent adult abuse charges. Scarcella was indicted for dependent adult abuse.

Defense attorneys note that the county pathologist who issued the death report determined that Benefield died of heart and lung disease. Dr. Mark A. Fajardo, now the coroner in Los Angeles County, said in a court declaration that he did not believe the lack of oxygen or drugs given to Benefield at the facility contributed to his death and that he was never contacted by the attorney general’s office.

Cartwright said the company is not responsible for the death. “There’s nothing [the treatment center] could have done differently that could have changed the outcome for Mr. Benefield, and we’re sorry for that,” he said.

Attorneys for the defendants declined to comment or did not return calls for comment. Samuels, the deputy attorney general, also declined to comment.

In their investigation into Benefield’s death, state licensing officials found the company deficient in 14 areas, including dispensing sample medications to residents, providing medication without a prescription, filling out medication logs in advance and providing medical-related services beyond the scope of its license.

In the months after Benefield died, the state Department of Alcohol and Drug Programs moved to revoke the license for the house where he was admitted. By then, the company had already closed it.

In 2013, after a man with a history of physical and mental illness committed suicide at another Murrieta facility run by A Better Tomorrow, state licensing officials faulted the firm for failing to regularly observe him during detox, failing to refer him to a higher level of care and recording inaccurate information on death report documents, according to state records.

Barker, Benefield’s stepdaughter, said his death left a hole in her family. She recalled him as a man who pulled out all the stops at Christmas, loved his motorcycle and lovingly raised his two stepchildren as his own.

He “should still be here,” she said.

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