Administrators at a northern Minnesota senior living home may have impeded an investigation into the rape of an 89-year-old resident by withholding information from medical professionals and even suggesting that the sex was consensual, attorneys contend in recently filed court documents.
Days after a caregiver at the Edgewood Vista facility in Hermantown, Minn., admitted to having sex with the woman, an administrator at the home told a sexual-assault nurse that the woman had flirted with her assailant and had made up the story of the assault.
The caregiver, Andrew Scott Merzwski, 30, was sentenced last month to 53 months in prison.
The allegations against the home's administrators raise new questions about the state's handling of the case, and whether the facility should have faced disciplinary action. The Department of Health investigated the rape and held the individual caregiver responsible, not the facility.
The department, which regulates more than 2,000 licensed care facilities, has come under criticism in recent years for failing to follow up on complaints of abuse and hold facilities accountable.
In 2011, the department received 12,262 complaints of maltreatment and self-reported incidents, but investigated only 1,023. Just less than one in five investigations resulted in findings of maltreatment.
"The question has to be asked: Why wasn't the facility held accountable for the neglect of care?" asked Roberta Opheim, the State Ombudsman for Mental Health and Developmental Disabilities.
Department officials point to records showing that the agency initiated an investigation on Jan. 28, 2013, 10 days after the rape. Investigators considered whether Edgewood Vista should have been held accountable for the incident, but found that the facility had policies to prevent abuse and had documentation that the employee received abuse prevention training.
The state conducted two additional site inspections, and found that the facility violated state law by not immediately reporting abuse of a vulnerable adult. Edgewood Vista did not notify local authorities until two days after the rape.
Edgewood Management Group, a Grand Forks, N.D., company that owns the Hermantown facility, issued a statement saying it has cooperated with local and state authorities in the "criminal matter involving Andrew Merzwski." The company added, "The safety of our residents is of the utmost importance."
'It's not right'
Court documents and testimony in a lawsuit brought on behalf of the elderly woman paint a disturbing picture of her ordeal.
The victim told a nurse examiner that she was preparing for bed when an aide entered her room. She invited him to sit down and watch a film with her. The man, later identified as Merzwski, then walked around the side of the bed and started taking his clothes off. The woman pointed at a photograph of her husband on the shelf, saying, "It's not right, this wouldn't be right," according to testimony filed with the court.
That, however, did not stop him, according to a police report. After the assault, the woman washed her sheets and underwear, which had blood on them, according to testimony.
Early the next morning, the woman reported the incident to her daughter, who lives in the Twin Cities, and she immediately notified the police. Later that day Merzwski admitted to them that he had intercourse with the woman.
But the survivor's trauma did not end there. One day after the rape, she was taken to St. Luke's Hospital in Duluth, where she would spend nearly three days in a room in a locked psychiatric ward while investigators tried to determine the veracity of her story.
"The room she was in was dark and cold … and they locked her in at night and all she had was a blanket," nurse examiner Theresa Flesvig said in testimony filed with the court.
Only later did she receive a complete examination for evidence of rape. In court testimony, Flesvig said the laceration that resulted from the rape was the "biggest tear" she had ever seen in her six years of work in the field.
Appeared to defend rapist
Attorneys for the woman allege that administrators at Edgewood never informed the hospital that Merzwski had already admitted to having sex with the woman. In testimony, a sexual assault advocate who visited the victim at the hospital said she had multiple conversations with Edgewood staff but was never told about Merzwski's admission to police.
Days later, an administrator at Edgewood Vista appeared to defend the rapist even after his admission to police.
According to court testimony, Marilyn Moore, clinical services director at the home, asked Flesvig, "Did she tell you that this was consensual? Did she tell you that she flirts with this boy mercilessly?"
In a separate conversation with Mary Salisbury, a sexual assault advocate, Moore said she thought the elderly woman "was making it up," and referred to the woman as a "flirt."
"I was just shocked that somebody was so blatantly putting the blame on this woman," Flesvig said. Moore could not be reached for comment Friday.
Mark Kosieradzki, the victim's attorney, argues that the Health Department failed in its duty as a regulator by not conducting a thorough investigation of Edgewood's handling of the case.
"Is this a situation where the state doesn't understand where a woman is harmed if she's raped?" Kosieradzki asked.
Since the case came to light, sexual assault advocates said they were amazed that the rape survivor persisted with her claims amid the obstacles.
"I don't have the adjectives that would best portray … this woman's courage," said Iris Freeman, director of the Vulnerable Adult Justice Project at William Mitchell College of Law. "There was a resilience and a fierceness in her that allowed her to be superhuman and help herself."