Crime and Justice

Judge nixes woman’s chance to clear record of elder assault

RUTLAND — A judge has denied a defense request for a deferred sentence in the case of a caregiver who assaulted an elderly woman at a residential care home in Rutland late last year.

The judge said such a sentence — which could allow the conviction to be cleared from the offender’s record — would send the wrong message in a case involving abuse of a vulnerable adult.

Marissa Flagg, a former employee of Our House Too, a 13-bed facility for people with severe dementia, was sentenced Thursday to two years of probation. If she violates the terms of her probation, she could face up to 18 months in prison, Rutland Superior Court Judge Cortland Corsones ruled.

Flagg initially denied having committed the assault, which was captured on video. She later pleaded guilty and during a status conference in June requested a deferred sentence.

In the video, Flagg can be seen shoving Marilyn Kelly, a 78-year-old resident with Alzheimer’s and heart disease, to the ground in the home’s living room. The incident occurred in the early morning after a brief tussle between Kelly and Colleen Knowles, the only other employee working that night, over a pile of laundry.

Knowles, who testified at the hearing, said she was able to wrest the laundry from Kelly’s hands and then left the room.

After Knowles left, she heard Flagg and Kelly yelling at each other. Knowles said she heard Flagg threaten to hit Kelly and then heard a cry of apparent pain followed by a loud thump. When she returned to the living room, Kelly was lying on the floor “angry, scared and shaking,” Knowles said.

About an hour later, Flagg gathered her belongings and walked out. Knowles then notified her boss, Lisa Patorti, a registered nurse. Patorti dispatched another employee to help out. The facility later reviewed the video and contacted Adult Protective Services and the police.

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Our House, a network of four care homes with about 50 residents, is owned by Paula Patorti and her husband, Pasquale. In an interview, Paula Patorti said they were glad the whole episode came to light. “I would be horrified if (Flagg) had done something like that and was able to continue to work with us or anybody. I don’t want her around any vulnerable adults,” she said.

The sequence of events was captured on video, and according to the police affidavit, “Flagg can be seen to push M.K. from behind, causing M.K. to fall to the floor.”

The assault led to severe bruising of Kelly’s right hip and possibly contributed to a compression fracture of the spine. Kelly died of pneumonia one month later.

“Her health declined drastically after the assault,” said her daughter June Kelly.

The defendant’s state-appointed attorney, Albert Fox, argued that Flagg, only 20 at the time and the victim of abuse herself, was in the midst of a mental breakdown when the incident occurred and should be granted some leniency. Fox said the morning of the incident she was taken to Rutland Regional Medical Center as a suicide risk.

“She hurt someone — that is not denied,” Flagg’s attorney said. “But it was an isolated incident by someone having a complete mental breakdown.”

A deferred sentence allows criminal defendants to have their records cleared by a judge if they’ve complied with the terms of their probation.

Judge Corsones said in this case such a ruling would be inappropriate and would send the wrong message, “that a caregiver can act in this manner and receive a deferred sentence.” However, he noted that because Flagg was 20 at the time of the assault, under Vermont law her records and files can be sealed if she hasn’t committed another listed crime two years after the end of her probation.

“It’s something she will have to earn,” he said.

Flagg will be placed on the Vermont Adult Abuse Registry offender list, a confidential database maintained by the state and accessible by current or prospective employers in the field of adult care.

One month after the assault, Our House Too was assessed by the Department of Licensing and Protection, which found the facility failed to comply with state regulations mandating that all employees receive 12 hours of training each year.

According to the report, two of eight employees did not have training hours in emergency response, resident rights, abuse/neglect and exploitation, and one had not been trained in proper procedures regarding infection control. The review also found that Our House Too had failed to comply with numerous policies pertaining to medication management, safe and proper storage of food, and annual resident assessments, which are required.

Paula Patorti said every employee goes through an orientation and formal training with professional staff. “Our training is ongoing every minute of every day,” she added.

Suzanne Leavitt, assistant director for survey and certification with the Division of Licensing and Protection, said residential care facilities are reviewed approximately every two years.

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As part of the review process, care homes must outline the steps they will take to address citations. Our House Too was last surveyed May 31 and was found to have addressed the earlier problems. However, in May there were issues with medication management.

If residential care homes fail to remedy violations, they can be fined up to $100 a day or in some rare cases have their licenses suspended or revoked.

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