July 18, 2014

Hip Fracture and Survival Rates of Nursing Home residents


Preventing hip fractures and increasing the rate of recovery must be a top priority in all nursing homes across the United States. A recent study published in the medical journal JAMA Internal Medicine discusses the survival rates of nursing home residents after having a hip fracture surgery. The study used data from nursing homes and Medicare claims totally roughly 60,000 nursing homes residents who had been hospitalized for a hip fracture during the years of 2005 to 2009. The study's objective was to get hard evidence on both the mortality rate and the decline in activities of daily living for residents of nursing homes who had received surgery for a hip fracture. The lead author of the study, Dr. Mark D. Neuman, from the Perelman School of Medicine at the University of Pennsylvania reported that six months after surgery one in three patients had died with 28 percent of those who had survived became newly dependent on others for basic care. As a Pennsylvania and New Jersey nursing home injury specialist I am well aware of the dangers of neglect in a nursing home setting. Falls in particular pose a real threat to individuals' ability to live mobile self-sufficient lives.

The Centers for Disease Control and Prevention estimates that the number of hip fractures will online likely rise as the population continues to age. Approximately 95 percent of all hip fractures occur because of a serious fall normally onto one's side. At the centennial annual meeting for the Clinical Orthopaedic Society Dr. Erika J. Mitchell addressed the mortality rate and severity of hip fractures in the geriatric population. Dr. Mitchell bringing to light the scope of the problem stated that, "Statistically speaking, up to half of all women will have fragility fractures in their lifetime, and up to a third of all men." Further stating, "Far more people will have a fragility fracture than will have a heart attack, cancer, or stroke." Once one fracture occurs the chance of a second fracture within 3 to 5 years is nearly 50 percent.

Preventative Measures:

According to the CDC one in five patients will die within a year of having hip fracture surgery with a large portion of those deaths attributable to complications from the surgery. Pneumonia after a hip fracture can increase the patient's mortality rate by as much as 43 percent. Osteoporosis is a disease that causes bones to become porous and thus more susceptible to factures after sustaining a fall effects over 10 million people in the United States with another 34 million at risk of the disease. Helping to strengthen your bones into old age can reduce the chance of suffering a hip fracture, but there are other steps as well that both nursing homes and health advocates should take into consideration when working with aging patients.

If you or your loved one takes both prescribed and over the counter medication including supplements inform your doctor of all of your medicines to ensure that no drug interactions are causing dizziness or balance issues. Make nursing home residents eyesight is checked every year as loss of eyesight steady increases with age. Throw rugs and other trip inducing items should be cleared to ensure a path that is free from obstructions. Added guardrails around a tub and toilet can also help reduce instances of falls. Sometimes in nursing homes falls occur because a resident is tired of waiting for assistance often verging on neglect and instead independently tries to go about their daily activities without assistance leading to a severe fall or other injury. Nursing home staff levels play a vital role in the safety and wellbeing of the nursing home residents. When choosing a nursing home facility make sure to look to the staff levels and frequency in staff overturn.

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June 17, 2014

The Effects of Sepsis on the Elderly


The American Thoracic Society met for their annual conference where findings from a recent sepsis study was presented. Sepsis infections also known as blood infections can cause whole body inflammation, organ decay, and in some severe cases death. Sepsis is particularly fatal among the elderly and those with weakened immune system such as infants and those with HIV/AIDS. At the annual conference the researchers of a recently published study in the Journal of American Medical Association discussed the deadly effects of sepsis and the increased rate at which emergency departments are seeing patients present with sepsis along other infections. The occurrence of sepsis has been steadily rising with about one of out every 10 patients being treated for sepsis in U.S. hospitals. Even more telling the study found that 52 percent of those who died in a hospital were diagnosed even if sepsis was not the direct cause of the patient's death. Dr. Vincent Liu, the lead study author indicated that the researchers were surprised at the number of deaths in which sepsis was present. Approximately as many as "1 in 2 patients dying in the US hospitals had sepsis." Further stating the need for improved care for sepsis patients in order to save many more lives.

Sepsis and the Elderly:

Sepsis deaths have been on the rise according to the U.S. Centers for Disease Control and Prevention. During a ten-year span from 2000 to 2010, the rate of deaths associated with sepsis infections increased 17 percent equating to a death toll of 135,000, an increase from 45,000 deaths. The Mayo Clinic defines sepsis as a "potentially life-threatening complication of an infection." Sepsis, which is the body's response to fighting a severe infection often caused by pneumonia, abdominal infection, kidney infection or a bloodstream infection such as bacteremia, can trigger inflammation throughout the body. The inflammation can prove deadly as damage to multiple organ systems can occur, if left to progress sepsis can also cause blood pressure to severely drop which may also lead to death. The longer a patient goes untreated with sepsis the lower the chances of survival. Early treatment is particularly important for those with advanced aging.

It has even been suggested that for those over the age of 65 who contract sepsis the long-term effects may include being susceptible to cognitive impairment. A 2010 study in the Journal of the American Medical Association authored by the lead researcher Theodore J. Iwashyna, MD, PhD, of the University of Michigan Medical School, found that sepsis may have a direct link to 20,000 new cases of dementia among those 65 years or older who contract sepsis each year in the U.S. While there have been advances in the treatment of sepsis prevention among the elderly is vital to their survival and overall quality of life. Vaccinating those with compromised immune systems against the flu and pneumonia is still one of the best practices available.

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May 20, 2014

Prescription Drug Theft in Nursing Homes


Often with aging comes the necessary need of daily medications to help control pain, cholesterol, blood pressure, and other ailments. In nursing homes across Pennsylvania and New Jersey strict maintenance and dispensing procedures of patient medication is key to both the patient's ailments and survival. In some cases the pain medication has attracted unscrupulous characters that take advantage of elder patients often robbing them for their pain medication. Withholding medication from a nursing home resident can amount to nursing home abuse. Chronic pain is both under treated and a common ailment according to a recent study published by the Archives of Gerontology and Geriatrics. The study made up of 105 nursing home patients with the mean age of 82, living in two separate nursing homes in Torino, Italy, found that chronic pain was wide spread. The study suggests that chronic pain was present in 82.9 percent of the sample of patients studied, and that persistent pain lasting more than 24 months was present in half of the residents. Chronic pain can affect every part of a resident's daily life. From their mood, nutrition consumption, sleep pattern, and overall quality of life, chronic pain can play a direct role in making a resident's life enjoyable. That is why instances of prescription theft are particularly disheartening in the nursing home setting.

Many of those who work in nursing homes who steal prescription medication from residents are caught and prosecuted, as was the case for a former nurse at North Muskegon senior care facility in Missouri. Former registered nurse Ruth Ellen Everett unknowingly was under investigation by local police as she worked at Hillcrest Nursing Center in North Muskegon. As reported by MLive News affiliate, Everett was arrested on charges of elder abuse and larceny in connection with stolen morphine from a patient at the senior care facility on Monday, April 28. Unfortunately many residents are unaware that their medication has been tampered with and therefore are unable to press charges. Prescription theft in a nursing home or extended care setting can be slow and steady process leaving the victim often helpless and disoriented or writhing in pain. If you or a loved one is in a nursing home or being cared by another it is important to note what medications the resident has been prescribed. In some instances when a medication is stolen by a care provider the doctor may assume that the medication is not working and change the dosage. In some instances lethargy, weight loss, and anti-social behavior may result. If you are advocating on behalf of a loved one feel free to ask more information regarding medication tracking and rules over who and how medications are doled out in your specific nursing home or special care facility.

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May 12, 2014

New Screening Procedures Required for Representative Payees


Earlier this month the Social Security Administration adopted new representative payee policies originating from a Philadelphia based pilot program with new screening requirements for all potential representative payees. Representative payees are individuals who collect on the behalf of a disabled individual who is deemed unable to competently manage their own finances and therefore require a legal proxy. The new backgrounds checks disqualifies individuals who have been convicted of one of twelve listed crimes from being able to serve as a payee. The crimes include human trafficking, false imprisonment, rape or sexual assault, first-degree homicide, kidnapping, robbery, multiple forms of fraud, abuse, neglect, forgery, and identify theft. According to the Huffington Post "Bob Casey: Social Security Screening Program Should Be Expanded" January 27, 2013 article, U.S. Senator Bob Casey has been a strong advocate of tougher screening policies for individuals granted representative payees for years. In Pennsylvania and other states such as California and Massachusetts with a significant older adult population, financial elder abuse is a rising area of concern as it impacts an older adult's overall quality of life. As a Pennsylvania and New Jersey nursing home injury specialist some typical signs of financial abuse may include drastic changes in behavior, weight loss, medical decline due to shortage in medication, and even unusual financial behaviors such as large cash withdrawals, or signing over a piece of property. If you suspect that you or a loved one has suffered financial elder abuse feel free to talk to a Pennsylvania and New Jersey elder abuse specialist today.

The initial pilot representative screening program began this past June in Delaware, Maryland, Virginia, West Virginia, and Pennsylvania. As of this March program has become standard practice for the Social Security Administration. While Senator Bob Casey has been advocating for tougher policies to combat finical abuse of elders and those who are disabled for many years, it was not until a recent horror was discovered of extreme abuse and neglect in Philadelphia that made the topic ripe for action. What has been referred to as the "Philadelphia Dungeon Case" only describes a fraction of the alleged horror that at least six victims were subjected to by those who they thought they could trust. The Philadelphia Police Department discovered the victims in the Tacony section of Philadelphia on October 15, 2011. The accused ringleader Linda Ann Weston and five others were charged with a laundry list of offenses including a federal hate crime involving acts against the disabled. For over a decade the Philadelphia resident allegedly lured children and the disabled into her care, and then imprisoned and drugged her victims for their Social Security checks.

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April 25, 2014

Questions Remain Surrounding Nursing Home Death



The death of 94-year-old nursing home resident Irene Sansone has left her loved ones with may questions, primarily was it an avoidable tragedy? In August 2013, Irene Sansone was admitted to the Golden Living Center in Waynesburg, a small borough in Greene County, Pennsylvania, about 60 miles outside of Pittsburgh. For over 7 months Ms. Sansone was a resident at the nursing home until her death on the evening of February 22, 2014. It has been reported by the Pittsburgh Post-Gazette that during the night in question Ms. Sansone may have attempted to get out of bed and in the process her head became lodged between the mattress and the bed rail. Ms. Sansone's torso fell to the ground trapping her body in the bedrail and mattress, ultimately making it so that Ms. Sansone was unable to free herself. According to the Greene County coroner's office, Irene Sansone died as a result of "accidental asphyxiation." While accidental asphyxiation was the official cause of death, Ms. Sansone's niece and caretaker, Stephanie Jupina, strongly believes that the tragic accident could have been avoided with proper supervision. Ms. Jupina stated, "I think this is a serious case of neglect." In such instances when you have a loved one seriously injured or killed while in a nursing home, and there are lingering doubts, it may be advisable to speak with an experienced Pennsylvania and New Jersey nursing home injury specialist.

Golden Living Center in their past yearly inspection had fewer minimal harm deficiencies than the state average. With the nagging feeling lingering Ms. Jupina scheduled a meeting with administrators from Golden Living Center the following day. The executive director of the Golden Living Center, Jackie Hainer, stated that the nursing home has 24-hour staff on site, with 106 employees, some full-time, many part-time, including what they call, "casual employees." With ample staff coverage, Ms. Jupina questions who was the last staff member to check on her Aunt, and what was the nursing home's policy for checking on nursing home residents throughout the night? Golden Living Center declined to comment citing privacy restrictions of the Health Insurance Portability and Accountability Act. If you are considering admission to a nursing home, especially if the resident is advanced in age or disabled, knowing the nursing home's night policy and use of bed alarms can be the difference between life and death.

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April 16, 2014

Nursing Home Quality of Care Addressed in Latest OIG Report



The Department of Health and Human Services' Office of the Inspector General ("OIG") released the March 2014 edition of Compendium of Priority Recommendations, ("Compendium") which for the first time addressed the need for reform in nursing home care. The Office of the Inspector General is required under the Inspector General Act of 1978, to report to Congress problems, abuses, and deficiencies, which still need to be addressed, as well as the duties listed in the Consolidated Appropriations Act of 2014 which requires the reporting of the top 25 unimplemented recommendations that best protect the integrity of the Health and Human Services programs. It is common for OIG recommendations to require legislative, regulatory, or administrative action to become policy. Even Congressional appeal can be required, especially if financial backing is necessary to implement the new ideals. As I have reported before when it comes to elder abuse tracking the problem can be one of the biggest challenges. That is why as a nursing home injury specialist I was pleased to see the latest Compendium specifically addressing "Medicare Quality of Care and Safety Issues." Three areas of concern were included in the Compendium regarding nursing home reform, (1) improving quality of care plans and discharge procedures in nursing homes, (2) decreasing preventable harm and hospitalization of nursing home residents, and (3) improve emergency response and preparedness in nursing homes. While these recommendations may be incorporated in future elder abuse studies and possibly help to reform elder abuse rights, for many the help can come too late. If you or a loved one were seriously injured, neglected, or abused as a resident in a nursing home in Pennsylvania or New Jersey, our dedicated team of nursing home injury specialists may be able to help you get the compensation you deserve.

Improve Care Plans Improve Nursing Home Safety

Of the three proposed areas of nursing home reform, I found the quality of care plans and oversight to be of particular importance as it spells out the individualized plan of care that the resident is to receive. A care plan can assist in tracking any significant changes of the resident, including their mental, physical, and emotional health. The individualized care plan is also important as it details what kind of medication and what level of supervision the resident needs. For instance, a person who has dementia will need different care from someone who is bedridden, yet without proper supervision both resident's health could greatly suffer. Insufficient care plans are also costly to both the government and private nursing homes. The Compendium report found that Medicare paid approximately $5.1 billion in 2009 for stays in which the nursing home did not meet quality-of-care requirements. Oversight for care plans and implementation is also an area that needs to be focused and addressed on a state and federal level according to the report. Nearly 37 percent of nursing home care plans do not meet federal requirements and the report also found that services were not provided as specified by the care plans. Increased oversight alone has a tremendous opportunity to help decrease instances of low quality of care in nursing homes. To read more about the areas for improvement and suggestions in long term care by the Office of the Inspector General read the latest issue of the March 2014 edition of Compendium of Priority Recommendations.

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April 1, 2014

Newly Formed Long-Term Care Commission Holds First Meeting


On Thursday March 7, 2014 the members of the newly formed Pennsylvania Long-Term Care Commission, along with the Secretary of Public Welfare and the Secretary of Aging, met for the first time to begin developing long-term fiscally responsible recommendations for the current Pennsylvania long-term care health care system. By executive order Governor Tom Corbett on January 31, 2014 established a 25 person commission with the goal to "ensure the system and its services are person-centered, efficient, effective, and fiscally accountable." According to Secretary of Public Welfare Beverly Mackereth, Pennsylvania spends an estimated $4.7 billion each year on Medicaid long-term care services. As the demands of the aging Pennsylvanian population is expected to grow so to will the cost of the long-term care services. As a nursing home injury specialist I am hesitantly hopeful that true change will be initiated on a state level.

The need for long-term care is inevitable with one of four citizens expected to be over the age of 60 by 2015. Governor Tom Corbett established the commission as part of the Healthy Pennsylvania plan that helps to ensure affordable quality health care. One of the more serious and common injuries sustained by nursing home residents are falls. In 2000, the cost of all fall injuries in the United States for people 65 and older exceeded $19 billion. It seems that if Pennsylvania wants to lower the cost of Medicaid long-term care services then we must invest in proper staffing in all long-term care facilities as well as training to reduce preventable injuries such as falls. While a fall to a young health individual may only require time to heal and a little rest, a fall sustained by an older American can be severe and costly.

The cost of a fall increases rapidly with age. According to a 2005 study entitled "The acute medical care costs of fall-related injuries among U.S. older adults," the average cost for hospitalization for a fall injury was about $17,500. In nursing home setting falls are often caused by lack of supervision, unrevised fall risk plans, medications that causes dizziness or lack of coordination, and understaffing. Traumatic head injuries, hip fractures, and broken bones caused by a fall can require extensive care and hospitalization and can even be fatal. A long-term care patient may have to undergo surgery, take pain medication, and have physical therapy when released, all of which can lead to a loss in their quality of life. As mobility and independence tend to go hand in hand it is common to see residents who after suffering a severe fall suffer bouts of depression as their daily routines become interrupted. By the end of the year the Long-Term Care Commission will submit their recommendations to the Governor, hopefully plans to lower the rate of preventable injuries will be among the suggestions.

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March 19, 2014

Oklahoma Legislature Tackles Nursing Home Reform


Earlier last week, nursing home advocates took to the Oklahoma governor's office in hopes of initiating desperately needed nursing home reform talks. Of particular importance a meaty Oklahoma nursing home reform Bill, which sought to address many elder abuse and neglect concerns, was defeated last month. As a Pennsylvania and New Jersey nursing home abuse attorney I was interesting in a proposed Oklahoma House Bill 2901 much of which was geared towards supplementing elder care resources as a means of preventing nursing home abuse and neglect. House Bill 2901 was tailored to increase nursing home staff, create medical director oversight, and other measures. The House Bill did not make it to committee, but it did help shed light on staggering cases of elder abuse that on average is greatly underreported. The Oklahoma based grassroots long-term care reform organization, A Perfect Cause, estimates that more than 3,500 nursing home residents in Oklahoma die each year from nursing home abuse and neglect. The House Bill 2901 would have address preventable deaths and injuries in two separate areas of interest, mandated increased nursing staff, and the state required investigation of family members and the accused, while investigating elder abuse claims. As reported by Oklahoma's Own News 9, there were disagreements in the language and content of the bill, but lawmakers look optimistically to the next session in which to work out their disagreements. Wes Bledsoe, an advocate for nursing home reform, and President and Co-Founder of A Perfect Cause, estimates that about 62,000 cases of nursing abuse goes unreported nationwide. Underreporting is one of the many hurdles in addressing nursing home abuse and elder abuse on both a state and federal level.

Nursing home abuse reform has remained in Oklahoma's legislature since the December 2012, disturbing nursing home abuse that was caught on tape. A hidden camera in 96-year-old Eryetha Mayberry's nursing home room exposed the devastating abuse she was being subjected to on a daily basis by members of the nursing staff. Mayberry suffered from dementia, which requires greater care and more supervision as the patient's capacities diminish. Dementia patients are particularly vulnerable to unscrupulous residents and staff members in nursing homes that take advantage of a patient, knowing full well that their victim will not be able to fully recall the transgressions. Mayberry's daughter, Earlene Adkisson, installed the camera after she believed items were disappearing from her mother's room. The extreme instances of abuse caught on camera including rough handling, choking, blocking the resident's airways and more, totally shocked and horrified Mayberry's family. The reported images left many questioning whether "granny cams" or monitoring devices were needed to keep themselves and their loved one's safe. Oklahoma lawmakers say they have seen a rise in proposed legislation for the installation and monitoring of cameras in common areas of nursing homes. However, informed consent for monitoring in nursing homes is a complicated legal terrain, as you have to balance the general welfare of the residents and the individual resident's right to privacy. Many opponents strongly believe that the safer alternative is to add more quality staff to help ease the burden of daily care.

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March 12, 2014

Distilling the 2014 Nursing Home Ratings by U.S. News & World Report



When a family makes the decision to transition a loved one into a nursing home it can be an overwhelming and understandably emotional experience. The daily care, safety, and overall wellbeing of your loved one are being placed in the hands of another. It is a duty that many nursing home staffs and facilities pride themselves in excelling in. U.S. News & World Report has released their sixth annual data and ratings results of nearly every nursing home in the United States. The search tools and valuable information within the detailed U.S. News database can help make choosing a nursing home a better, quicker, safer, more informed experience. The user-friendly search tools gives a multi-layer approach in finding a suitable nursing home that meets the needs for you or a loved one. It is estimated that over 3 million Americans live in approximately 16,000 nursing homes throughout the United States. That number is expected to only increase as the nation's older adult population continues to steadily climb. Much of the raw data relied on by U.S. News in rating nursing homes comes from Nursing Home Compare, the federal database detailing every Medicare and Medicaid certified nursing home in the country. You can search by state, region, city, or zip code, or by a numerical star rating of 1 to 5. The 2014, ratings of 1,893 nursing homes in Pennsylvania indicate that 702 nursing homes, about 25 percent, earned a five-star rating, while less than 5 percent of Pennsylvania nursing homes earned a one-star rating.

Distilling the ratings:

There are three key areas that the overall ratings correlate to, the nursing home's individual ratings of their (1) state-conducted health inspections, (2) sufficient nursing staff and, (3) the quality medical care measures. As a nursing home injury specialist with practices in both Pennsylvania and New Jersey, when looking at a nursing home's overall rating, I place particular importance on a nursing home's nursing staff rating. The nurse staff rating relates to the average number of hours per day of care received per resident from nurses and physical therapists. A nursing home with a low rating for nursing staff raises concerns as understaffing is the leading cause of neglect and abuse in nursing homes and long care facilities. When a nursing home is inadequately staffed the required daily care to stave off fatal infections, pressure sores, devastating falls, and to meet the minimal quality of care required by both federal and state regulation, is often found lacking. Sufficient staffing is a critical component in running a safe, clean, well managed nursing home, so much so that all nursing homes participating in Medicare are required to meet specified requirements of the Federal Nursing Home Reform Act, part of the Omnibus Budget Reconciliation Act of 1987. Specifically facilities are legally required to have "sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." Therefore, when narrowing down the choices of a nursing home facility remember to pay close attention to the nursing home's staff rating, as this singular component can have life-altering effects.

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March 3, 2014

Competency and Arbitration Clauses


I have spoken extensively about nursing home arbitration clauses often placed within nursing home admission papers. An arbitration clause has the power to dictate which causes of action can go before a jury and which must go through arbitration, a more discrete out of public view dispute resolution option. Arbitration agreements are construed according to contract law, requiring a valid offer, acceptance, and consideration. The recent case brought before the Pennsylvania Court of Common Pleas, Tyler v. Kindred Healthcare Operating, the court overturned the defendant's preliminary objections to plaintiff's wrongful death and survival complaint. The court held that the meeting of the minds could not be established when the decedent signed her admission papers for admittance into Kindred Healthcare nursing home. Further finding that the decedent's daughter was also unable to act as the decedent's power of attorney as the decedent had not given away any rights nor did the decedent authorize any family member to make any legal decisions on her behalf.

In Tyler v. Kindred Healthcare Operating, plaintiff Avenia Tyler brought a wrongful death and survival action against two nursing homes, Kindred Healthcare Operating, Inc. ("Kindred"), and St. Francis County House ("St. Francis"). Plaintiff alleged that decedent Ruth McNear, had developed necrosis, advanced pressure sores on her right lower extremity, and a second fracture to her right femur which required surgery. Plaintiff further stated that Ruth McNear had passed away due to complications from the second leg fracture and subsequent surgery. At the time decedent's death, McNear was in complete control and care of defendants. When proper care is taken bedsores should not be present in residents of nursing homes. Part of care plans for residents that have limited mobility is a reposition of the resident approximately every 2 hours. If repositioning continues to be overlooked or ignored, often as a means to save limited time in understaffed facilities, a resident can suffer bedsores, urinary tract infection, and even a wrongful death. As part of the Federal Nursing Home Reform Act of 1987, all nursing homes that receive federal funding are required to have "sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." Bedsores are the most common form of negligent care given in nursing homes. It takes time and pressure for a bedsore to begin to form and even more time for the pressure wound to become infected.

Ultimately the court held that the arbitration clause could not be enforced as the decedent was not competent at the time of signing and therefore there was no meeting of the minds when the contract was executed. Medical records note at the time of signature decedent was disoriented and her thoughts were cloudy. While a resident at the nursing homes, nurses noted that decedent was both confused and impaired. St. Francis the second nursing home for the deceased Ruth McNear wanted to enforce the arbitration clause despite the late McNear state of confusion. The court held that the decedent's daughter could not act as her mother's agent simply because there is a familial relationship. Instead, the court held that the decedent would have had to given Lynette, her daughter power of attorney or at the very least the authority to make legal decisions on her late mother's behalf. Accordingly, the court held in favor for the plaintiff finding that the survival action could not be severed from the wrongful death action.

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February 19, 2014

Federal Arbitration Act Pre-emption of Pennsylvania's Wrongful Death Act and Survival Act Upheld, Lipshutz v. St. Monica Manor


A recent ruling by the Court of Common Pleas in Philadelphia, upheld the federal and state public policy that favors promoting arbitration agreements. There are definite plus and minus to arbitration. Especially true with nursing home arbitration agreements, where the publics' knowledge of a nursing homes' safety record is greatly limited. Before placing a loved one into a facility checking their safety record of known allegation of serious abuse and neglect is of great importance. However, when a party is bound by contractual principles, which upholds arbitration agreements, instead of being able to file a lawsuit that is public record, these legal disputes are processed in a more private manner. It has long been touted as an efficient, and less costly alternative to trial litigation, enabling the courts to free up limited resources and time. Often, nursing home companies' favor, and accordingly place an arbitration agreement clause into their contracts, a contract which is required to be signed prior to admission into their facility. As was the case in Lipshutz v. St. Monica Manor, the Philadelphia Court of Common Pleas found that the survivorship action related to a wrongful-death case was bound by the arbitration agreement and further upheld by federal law.

In Lipshutz v. St. Monica Manor, the plaintiffs brought a wrongful death and survival claims on behalf of their deceased mother and her estate under Pennsylvania's Wrongful Death Act and Survival Act. Decedent suffered a stroke on November 4, 2011 at which time she was taken to Jefferson University Hospital. The decedent was discharged with an "impaired mental status" unable to care for herself. On November 11, 2011, decedent's daughter, plaintiff Elizabeth Lipshutz, acting as her mother's power of attorney, signed an admission agreement which contained within a mandatory arbitration clause. On May 16, 2013, plaintiffs alleged that the substandard care at St. Monica Manor was the direct cause of the decedent's untimely death.

Because the decedent's daughter acted with the authority and in a representative capacity, the court held that the survival claims had to be remanded to arbitration. At the time of the signing there was a valid contract supported by fundamental contract principles, such as a valid offer, acceptance, and consideration and that no traditional defenses to formation were available. The court held that the Federal Arbitration Act ("FAA") pre-empts Pennsylvania civil procedure rules, Pa.R.Civ.P. 213(e), which requires wrongful-death claims and survival claims to be litigated together.

In determining who was bound by the arbitration clause, the court looked to Pisanco v. Extendicare Homes, Inc., which determined that "one who is not a party to a contract cannot be bound by it, and that arbitration agreements are not binding on non-signatory beneficiaries." Here, her four children, three of whom did not sign an arbitration agreement with St. Monica Manor, survived the late Mrs. Lipshutz. Therefore, Elizabeth Lipshutz signing of the agreement in her capacity of power of attorney bound her late mother's decedent's survival claims to arbitration, but did not affect her own right or the rights of other surviving beneficiaries to bring wrongful death claims. While the Court of Common Pleas is not the highest court in Pennsylvania, if higher courts uphold the ruling, it can soon become precedent in the state.

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February 10, 2014

Parking Lot Accidents and Older Adult Drivers


Earlier this month, in a devastating and gruesome parking lot accident, a group of pedestrians were run over after leaving church in Bradenton, Florida. At approximately 11:20 a.m. Sunday, February 2nd, 2014, 79-year-old Doreen Landstra, of Palmetto FL., was seen backing out from a handicapped space at the Sugar Creek Country Club. 1 pedestrian was declared dead at the scene, while 2 more were pronounced shortly after arriving at local area hospitals. Another 4 pedestrians were transported in critical condition; no word has been released at this time on their current condition. According to the Bradenton Herald, Florida Highway Patrol sighted Doreen Landstra the driver of the white Chevrolet SUV with "improper backing." If found guilt of this non-criminal moving violation, Florida's mandatory punishment imposed where there is a fatality involved, is a fine of $1,000 and suspension of one's license for six months. This week's earlier church parking lot accident was not the first for Landstra. Only two and a half years earlier, on July 28, 2011, Landstra accidentally drove her 2009 Chevrolet Tahoe into a McDonald's restaurant as she tried to pull into a parking lot space. The Centers for Disease Control and Prevention ("CDC") finds that as drivers age, their risk of being severely injured or killed in a motor vehicle crash increases. The most recent CDC statistics finds that nearly 500 older adults are injured daily due to motor vehicle accidents.

As a personal injury lawyer, practicing in both Pennsylvania and New Jersey, I understand the complexities and life-altering events a parking lot accident can have especially on our older population. Many older Americans can quickly have their freedom and quality of life greatly impacted if they are involved in a motor vehicle accident, both as a driver and as a pedestrian. In this case, 8 such lives were greatly affected by Sunday's parking lot accident. A tragedy such as being struck and run over by a car can require expensive medical bills, a long stay in a hospital, extensive physical therapy, and in some rare cases it may require that the injured party check into a long-term care facility, while they heal from the injuries sustained.

Nationwide, according to the June 2008 National Highway Traffic Safety Administration ("NHTSA") study, pedestrians are more likely to be fatally injured between the hours of 3 a.m. and 6 a.m. and especially during the weekend days of Saturday and Sunday. Parking lots in particular can seem like a mind field for drivers and pedestrians alike. As one ages their eyesight also degrades making it more difficult to see at dusk, and at night. On average, a vehicle fatally injures 13 pedestrians every day. While many do not consider parking lots a place to drive with added caution, such as in a school zone, in parking lots pedestrians and other vehicles can act unpredictability. Unpredictability when driving can increase the likelihood of being involved in a parking lot accident.

In Pennsylvania, if you are a driver over the age of 55, you are eligible to receive a 5 percent discount on your vehicle insurance, if you complete a Pennsylvania Department of Transportation approved Basic Mature Driver Improvement Course. In order to maintain the discount the driver would have to take a supplemental Refresher Mature Driver Improvement Course, every three years. The courses are offered through AAA, AARP, or Seniors for Safe Driving.

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December 11, 2013

Protecting Older Citizens From Scammers This Holiday Season



Abuse of our older citizens in the United States comes in many forms, but one of the most insidious practices is through financial abuse. Elder financial abuse is the misuse, mismanagement, or misappropriation, of an older person's property or equity without their informed consent. An example of such a malicious act is when a grandchild for instance, takes their grandmother's social security check out of her mailbox without her knowledge or consent, and then cashes it. A 2009, study from MetLife, found that elder financial abuse is booming, with an estimated costs for older Americans ranging in the billions, some estimating the effect as great as $2.6 billion per year. While all older Americans are potential targets, the National Adult Protective Services Association (NAPSA) states that the "typical" victim of elder financial abuse is between the ages of 70 and 89, tend to be Caucasian, female, with a potential health or cognitive impairment. While most older Americans do not report elder abuse based upon fear of retaliation, fear of loss of personal freedoms, or fear of a change in their current living situations, over 90 percent of all reported elder abuse is committed by an older person's own family members. Most frequently their adult children, grandchildren, extended family and lastly a caregiver are often to blame for their deceptive motives. Similar methods can be used to determine whether one's loved one is being taken advantage of by a pop up charity, or telemarketers, as with unscrupulous family members who may not think twice about taking advantage of the older Americans in your life.

Financial exploitation can be conducted in numerous ways but the overarching themes are giving strangers your private information without first vetting them, believing that you can get something for nothing, and playing to a person's goodhearted nature. Suspicious spending is always a trigger for financial abuse. If your loved one who has been diligent about money all their lives suddenly begins making unusual purchases outside of their character, probe to see if they have shared their social security number or credit card information with anyone recently, be it over the phone, or in person, for any reason. If any checks bounce that normally are well within your older citizen's monthly budget, this could be a red flag that someone has been tampering with his or her finances. Particularly going into the holiday season or after tragedy strikes, pop up charities with detailed but bogus websites are ready to take an unsuspecting person's credit card information. Charity websites should end with .org not the typical .com if it is a reputable site, but that nugget of wisdom alone cannot keep you from being scammed. Especially hurtful with these type of scams, is that the person donating thinks they are doing a good deed, when in actuality they have just given their personal information to a scammer who later intends to use the donator's information for the purpose of identity theft.

The Internet is ripe with scams, particularly enticing to older Americans is the one that promises generic or lower costing medications all for a low monthly fee. When you take into account that one of the costliest parts of an older citizens monthly budget is their health insurance and prescription plans it is understandable as to why older Americans are preyed upon. Once you sign up the scammers now have access to your name, address, and credit card information. Even more unsettling is that older Americans who sign up are often being sent placebos or pills that exacerbate their prior medical conditions. Lastly this holiday season by implementing a quick screening of potential scammers you can avoid the "grandparent scam". The grandparent scam goes something like this; a grandparent picks up a call from a frantic voice. The voice on the other end of the phone says, "Hi Grandma, do you know who this is?" Once the unsuspecting grandparent gives a name, the scammer goes into a tearjerker of a story as to why they quickly need them to wire them money, be it payment for a car repair, overdue rent, or hospitalization. Most importantly is that the scammer will implore the grandparent to not tell their parents as it will get them into hot water. In order to ensure that your loved ones do not fall for the "grandparent scam" make it a policy to not answer an open ended question with the correct grandchild's name, and see if the scammer continues with their scripted response. Give the name of a pet or best friend, something easy to remember when you are being pressured to answer quickly. A great way for your parents or loved one to not be bombarded by such phone calls is to put them on the "Do Not Call" list by visiting www.donotcall.gov and to be suspicious of anyone that calls in a panic with a pressure sale.

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November 19, 2013

Domestic Violence in Later Life


On Wednesday, November 13, a domestic violence incident was reported that both stuck out in my mind, and remained there over the weekend, as it pertained to domestic violence in couples over the age of 80. The article, "Husband Charged With Fatally Stabbing His Wife In Cinnaminson" as reported by CBS news, detailed how 83-year-old William Coggins had been formerly charged with murder in the violent death of his 81-year-old wife, Laura Coggins. According to the Burlington County Prosecutor's Office, Cinnaminson Police were called to the 55-and-over community on the morning of November 4th, after the husband's brother discovered the lifeless body of Laura Coggins fully clothed in her bathroom with multiple knife wounds. An autopsy later performed confirmed that Laura Coggins' death was a homicide and a result of the multiple stab and slash wounds she sustained. William Coggins, whose bail has been set at $500,000, with a court ordered psychiatric evaluation as a condition of his bail, was taken to a local area hospital for treatment before being taken into police custody. Mr. Coggins was treated for self-inflicted wounds, which were deemed as a result of an apparent suicide attempt. Two of Coggins' neighbors in the 55-and-over community, days after news broke of the homicide were shocked. They described Laura Coggins as "one of the nicest people you would ever meet." Further stating that Laura lived in the home with her husband and that the couple were "very private."

Elder domestic violence can happen to anyone, regardless of race, gender, ethnicity, sexual orientation, socio-economics, and culture. Isolation in particular can become the breeding ground for abuse in older couples. According to the Center for Disease Control and Prevention, somewhere between 1 and 2 million residents in the United States aged 65 and older have been abused, neglected, or exploited by a person with whom they depend on for care or protection. Even with such a staggering number of instances of abuse in older Americans, reports to police and other social services remains minimal. The largest cited reason to not report is the coupled fear that 1) financially the older American cannot sustain their quality of life on their own, and 2) that by the victim reporting the abuse, they believe it will lead to them no longer being able to live in their own home, further stripping them of their freedoms that they currently enjoy.

Another added wrinkle to elder domestic violence is that typically loved ones are the perpetrators. Nine out of ten of the substantiated incidents reported to Adult Protective Services, were caused by family members. In the instances of abuse reported to Adult Protective Services, the perpetrators were spouses or former spouses, domestic partners, adult children, and extended family, with just a slim margin being committed by hired caregivers. Typically domestic violence studies stop short of including couples who are over the age of forty-five, which makes getting a clear picture of the problem all that more difficult. A 2007 study by the American Bar Association entitled "Elder Abuse and Domestic Violence in Later Life," found that elder abuse statistics are alarming. The study held that 84 percent of elder abuse cases are never reported, and as many as 5 million older Americans are abused each year in the United States. Without a legislative push for change in elder abuse laws, the number of older Americans suffering abuse at the hand of a loved one, is set to steadily rise. By the year 2050, a historic change will occur when for the first time in history there will be a greater number of older people on earth than children.

The Philadelphia based law firm of Rosenbaum and Associates works closely with victims of nursing home abuse in order to help residents regain their quality of life and restitution for their injuries. However, not all-elder abuse occurs in a nursing home or long-term facility. The National Institute of Justice, in their June 2013 research brief, found that the vast majority of older Americans choose to reside in their domestic settings, with only about 3 percent residing in nursing homes or long-term care facilities. Accordingly, 89 percent of elder abuse reported to Adult Protective Services occurs in domestic settings. Elder abuse can go undetected for longer periods of time as protective social networks; such as school or work, is no longer part of an older American's everyday life. Much like law can help shape society, so to can society help shape the law.

It speaks volumes the fact that it is incredibly difficult to track down an accurate and updated statistic involving domestic violence in later life, yet it takes less than a minute to find statistics on child or domestic violence rates on both a state and federal level in the United States. Elder abuse lacks a national data collection system and reporting requirements, much like it lacks a definitive definition, and agreed upon statistics. Elder domestic violence is routinely seen as an "invisible" problem, often falling short of the "moral panic" with regard to the broader approach to combating family violence. With out a demand for change little can be done to help curb the systematic abuse of our older Americans. Some believe that apathy and negative attitudes towards "cotton tops" are simply the byproduct of societal and media enforced ageism. Regardless of the root of the cause, we all age, and we all deserve protection.

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November 4, 2013

Infectious Diseases Have Deadly Results in Older Patients


While the most frequent type of abuse and neglect reported in older patients tends to be physical abuse, the majority of mistreatment involves neglect or quality-of-life issues. When a caregiver fails to properly tend to a patient an infectious disease can set in. Infectious diseases account for one third of all deaths in people 65 years and older. Despite advances in antibiotic therapies, infectious diseases continue to be a major cause of death in older adults. Further frustrating the matter is that infections do not present themselves the same way in older patients. Nonspecific complaints and subtle changes in their cognitive impairments, as well as weight loss, are some of the signs indicating that an infection has set in older adults. The role of a caregiver is all that more important in tracking any physical and mental changes in their patients. It is not uncommon for a patient to form an infection especially when a catheter is being used, as was the case in Schoemaker v. Ganon, et al.

In October 2008, the plaintiff Shannon Schoemaker was receiving at home care serviced by defendants Concordia Hospital, Inc., and their agents. On October 13, 2008, Ms. Schoemaker was being fed through an indwelling catheter, the nurse attending to her, nurse Yapp, indicated that there were signs of redness at the site of the catheter. Despite the increase in infectious caused by a catheter and that Ms. Schoemaker exhibited early signs of a possible infection, nurse Yapp failed to take any further steps. There were no plans in place for a follow up even though Ms. Schoemaker displayed signs of a catheter-related line infection. In fact the nurse had no intention of checking on Ms. Schoemaker until eight days later. Two days after nurse Yapp indicated redness at the site of the catheter, Ms. Schoemaker called Concordia Hospital, Inc. Hospital Home Care as Ms. Schoemaker had developed an infection that progressed and rapidly worsened. When Nurse Yapp returned Ms. Schoemaker was in acute respiratory distress with mottled lower legs, purple nail beds, lips, and nose. Ms. Schoemaker was hospitalized for forty-two days and had multiple surgeries where both of her legs were amputated, as well as the tip of her nose, and her left pinky finger.

Before the Court of Common Pleas in Lehigh County the jury rendered a verdict in favor of Ms. Schoemaker where they found the defendants liable. The jury awarded a $23 million in damages to Ms. Schoemaker. While defense argued that the harm Ms. Schoemaker suffered was not causally connected to the infection at her catheter site, the jury concluded that the plaintiff was not contributorily negligent. This verdict is among the highest ever for a medical malpractice case in Lehigh County and among the highest in all of Pennsylvania. It goes to prove the importance of a quality caretaker, and how their decisions and the quality of care rendered can have life or death consequences for elder patients in their care.

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