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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October 16, 2013

Elder Justice is a Necessity in Pennsylvania


Picture for a moment the life you built, saved, and diligently worked for, being stripped away from you at a time when you are unable to fight for yourself. That is what is occurring to millions of older Americans every year. Statistics vary from one in ten older Americans a year being abused, approximately a little over 4 million, to almost 11 percent or 5.7 million. Elder abuse includes physical, emotional, and sexual abuse, as well as, self neglect, and financial exploitation. Often times these patterns of abuse are at the hand of a relative, loved one, or a trusted caregiver or institution. As was true for the actor Mikey Rooney an outspoken advocate of senior rights. On March 2, 2011, Mikey Rooney appeared before a special U.S. Senate committee considering legislation to curb elder abuse. Before the panel, then 90 year old Mikey Rooney claimed he had suffered elder abuse when he was denied basic necessities such as food and medicine, and was financially, verbally, emotionally, and psychologically, tormented at the hands of a stepson and his wife. As ominous as it may sound, everyone must protect themselves and their loved ones from people who prey on our older Americans.

According to the 2010 U.S. Census, the nation's older population is growing and is only projected to further expand as "baby boomers" begin to reach the age of older adults. Pennsylvania has the fourth largest population of older citizens comprising approximately 21.4 percent of the population, or about 2.7 million individuals over the age of 60, with another 2.4 percent over the age of 85. The Pennsylvania State Plan on Aging ("The Report"), is a report released every four years as dictated by federal and state law in order for the commonwealth to receive federal funding under the Older American Act of 1965. The Report estimates that a rapid growth in Pennsylvania's older adult population is slated to reach an epic high by 2030. At which time, another 22.2 percent of the state's population approximately 2.8 million people, who currently fall into the age bracket of 45 to 59 will become incorporated in the older population increase.

The impact of the recent economic recession has greatly affected the surge in reports of abuse, neglect, abandonment, and financial exploitations of Pennsylvania's older population. Individuals in need of older adult protective services have grown exponentially. In 2011-2012 nearly 18,000 adults in Pennsylvania were in need of older adult protective services, that is a 17 percent increase from the previous year. Much like we check on our elderly neighbors when a heat wave strikes, so to should we speak up if we see any signs of elder abuse. If you believe there was an instance of elder abuse please at your earliest convenience contact the nursing home experts and personal injury attorneys at Rosenbaum and Associates for a free consultation. According to the SeniorLAW Center, victims of elder abuse, neglect, and financial exploitation, have three times the risk of dying prematurely. Typically the signs and symptoms may include, bruises or broken bones, dramatic weight loss, confusion due to malnutrition, medications, or an acute illness. Changes in the older adults behavior such as being withdrawn, signing over their house to a relative, or withdrawing large sums of money from a saving account, are all suspect. The Department of Aging's elder abuse hotline 1 (800) 490-8505, is available 24 hours a day, 7 days a week, for any person who believes that an older adult is being abused, neglected, exploited, or abandoned.


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September 19, 2013

Courts and Not Arbitrators Have Jurisdiction Over Pennsylvania Nursing Home Lawsuit - Pisano v. Extendicare Homes, Inc.


I've written a lot here about the trouble with arbitration agreements in nursing home negligence lawsuits. Arbitration is a form of "private judging" that allows disputes to be resolved out of court. It's often touted as quicker and less expensive than going to court, and thus advantageous to both sides of the dispute. But for nursing home companies, arbitration is often the preferred solution because it allows them to hide allegations of serious abuse or neglect, away from public records. In some cases, arbitration companies have even been known to decide cases in a way that's most favorable to their customers--the nursing home companies, who send them the cases and sometimes pay all of the bill. That's why I was pleased to see Pisano v. Extendicare Homes, Inc., a Pennsylvania Superior Court case denying an attempt to take the dispute to arbitration.

Vincent Pisano was admitted to Belair Health and Rehabilitation Center in April of 2010. His daughter, Jamie Pisano, had his power of attorney at the time and executed an agreement saying any dispute would be resolved by mandatory binding arbitration. Some time later, Vincent Pisano died at the facility. His family alleges negligence by Extendicare (doing business as Belair) in a wrongful death lawsuit filed by son Michael Pisano, individually and as administrator of his father's estate. Jamie Pisano executed a disclaimer and renunciation in October of 2011, giving up all proceeds in a recovery for wrongful death, and is thus not a party to the case. In trial court, Extendicare objected to the court's jurisdiction, citing the arbitration agreement. The trial court refused to compel arbitration, however. The parties agree that the agreement is valid and binding, the court said, but the wrongful death action was outside its scope.

Extendicare appealed, but the Pennsylvania Superior Court affirmed. In Pennsylvania, wrongful death actions by the estate of the deceased are separate from survival actions by the deceased person's immediate family. In this case, the agreement in dispute is broad enough to cover tort claims as well as contract claims. In relevant part, it says the parties agree to arbitration of "all disputes arising out of or relating in any way to this Agreement or to the Resident's stay at the center [including] ...wrongful death." Thus, the case turns on whether a Pennsylvania wrongful death lawsuit is derived from Vincent Pisano's rights. The Superior Court ruled that it is not. Pennsylvania courts have consistently ruled that wrongful death and survival actions are two separate rights of action deriving from a single death, the court said, but not from the decedent's rights. Thus, because Extendicare's agreement is between it and Vincent Pisano, it does not bind his family, the court found.

This is good news for Pennsylvania families that suffered a wrongful death because of nursing home abuse or neglect. The Superior Court is not the highest court in Pennsylvania, but if its reasoning is adopted by higher courts, it will be settled law in our state that arbitration agreements don't bind family members who never signed them. And that's important, because as I mentioned, arbitration is often not friendly to families hurt by nursing home abuse in Pennsylvania. It takes away their right to settle disputes in open court, file appeals and more. If this case is appealed further, I will be interested to watch its progress.

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September 5, 2013

Pennsylvania Counties Increasingly Consider Selling Their Public Nursing Homes


Because I practice nursing home abuse law in Pennsylvania, I was interested to see that publicly owned nursing homes are rapidly dwindling in our state. According to the Pocono Record, Monroe County's government is considering selling its publicly owned Pleasant Valley Manor, in part because it's running at a loss. To the west, Franklin County is already in the process of selling its nursing home, Falling Spring Nursing and Rehabilitation Center. One Monroe County Commissioner, Charlie Garris, noted that the trend in Pennsylvania counties is increasingly toward selling county-owned homes. But residents of both counties expressed concerns about the quality of care in the homes as they transitioned from public, nonprofit ownership to private, for-profit ownership. The news comes on the heels of an announcement from the Catholic Archdiocese of Philadelphia that it will sell several nursing homes in greater Philadelphia.

In Monroe County, the commissioners are considering a sale because the home is losing money. Pleasant Valley Manor lost $940,000 in 2012 and had already lost the same amount in the first six months of 2013. Garris noted that a supplier of food to the home once withheld its deliveries until it got paid, suggesting that the home's administrators were behind on payment. The only commissioner to publicly oppose a sale is Suzanne McCool, who said the county has a moral obligation to take care of elderly and infirm residents. The article said "there's a fear" that a for-profit home might not take indigent residents.

In Franklin County, Commissioner Robert Ziobrowski said county-run homes are no longer needed for indigent Pennsylvanians, because Americans can now rely on Medicare and Medicaid as well as private insurance. They have chosen two finalists from among the 10 private companies that offered to buy Falling Spring. But according to the local newspaper, Franklin County residents are concerned that private ownership will result in a drop in quality of care.

I share that concern. In my experience pursuing nursing home neglect lawsuits in eastern Pennsylvania, there is genuine cause for concern when nonprofit homes are sold to for-profit companies. As I noted in my blog post about the Catholic Church's sale of homes, studies show that nonprofit homes do better on multiple measures of care, including staffing ratios, number of bedsores, citations from government regulators and more. Indeed, one study concluded that statistically, for-profit ownership leads to an additional 7,000 pressure sores a year. The difference may be attributed to things like attempting to get along with fewer employees or employees who are not well trained, both of which can lead to overwhelmed employees who cut corners or forget important tasks. Nursing home abuse is devastating and sometimes fatal; Pennsylvanians should think very carefully before doing anything that could lead to more of it.

Based in Philadelphia, Rosenbaum & Associates represents clients across eastern Pennsylvania who have suffered serious injuries from abuse or neglect at a nursing home.

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August 22, 2013

Residents of Catholic Philadelphia Nursing Homes Face Uncertain Future Due to Sale


As a Pennsylvania nursing home lawyer, I was interested to see reports that the Catholic Archdiocese of Philadelphia plans to sell six nursing homes in greater Philadelphia. According to the Philadelphia Daily News, the archdiocese is selling six nursing homes and one assisted-living facility in order to address financial problems. Three of the homes are in Philadelphia: Immaculate Mary Home, St. John Neumann Home and St. Monica Manor. St. Martha Manor and Villa St. Martha are in Chester County, St. Francis Country House is in Delaware County, and St. Mary Manor is in Montgomery County. The announcement comes after several years of financial problems for the archdiocese. The National Catholic Reporter said the homes ran a deficit of $1.4 million at the end of fiscal year 2012.

In all, 1,400 residents will be affected by the proposed sales, as well as more than 2,000 employees. The archbishop for Philadelphia, Charles Chaput, said it will be a condition of the sale that no residents will be evicted, and "every effort will be made" to retain employees. As a Philadelphia injury lawyer, I am concerned for these residents and employees, because a sale is likely to mean a change to for-profit status. Studies show that nonprofit nursing homes generally deliver higher-quality care than for-profit homes, as measured by factors like citations by government regulators, use of restraints, number of bedsores the residents sustain, and staffing ratios. A 2009 meta-study published in the British Medical Journal drew that conclusion, echoing 2002 and 1991 studies. Among other things, it said, there are 7,000 pressure sores per year that can be attributed to for-profit care, statistically speaking.

It's not a given that for-profit status inevitably leads to Pennsylvania nursing home abuse, but if I had a loved one in one of these Catholic facilities, I would watch the sales closely. In my experience as a Philadelphia medical malpractice lawyer, for-profit status can lead to neglect when profit-motivated owners choose to understaff their homes or hire cheaper, unskilled workers. Overworked employees may skip or simply forget needed care, leading to problems like bedsores, missed medications or lack of attention to basic nutrition and hydration. In more serious cases, nursing home employees have been known to steal residents' drugs, physically abuse them or overuse psychiatric drugs as "chemical restraints" against unruly dementia patients. All of these are forms of abuse and neglect in nursing homes, which no Philadelphia family should have to experience.

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August 8, 2013

Oklahoma Supreme Court Resurrects Nursing Home Lawsuit By Voiding Affidavit Law - Douglas v. Cox Retirement Properties


As a Pennsylvania nursing home lawyer, I frequently end up pursuing medical malpractice claims because Pennsylvania nursing home abuse often takes the form of bad medical decisions. For example, over-medicating patients, failing to timely treat a clear illness or allowing bedsores to develop are all medical mistakes that are unfortunately common at nursing homes. But because medical malpractice is a highly politicized area of the law, nursing home patients and their families often face extra hurdles when they want to file a medical malpractice claim--such as Pennsylvania's affidavit of merit requirement. Oklahoma, too, has passed such a requirement, but that state's high court ruled that the requirement was part of an unconstitutional "logrolling" bill in Douglas v. Cox Retirement Properties, Inc..

Carol Douglas sued Cox in her capacity as the administrator for the estate of her father, Richard Lee Douglas. Richard Douglas was admitted for extended rehabilitative care but discharged 21 days later; he died less than a month after his discharge. The opinion does not detail the estate's contentions except to say that it alleges negligent care and treatment. But after the suit was filed, Cox moved to dismiss because Douglas had not complied with a 2009 law requiring a written expert opinion stating that the case is meritorious. Douglas replied that the 2009 law was unconstitutional because it was enacted as a multi-subject "logrolling" bill in violation of the single-subject rule in Oklahoma's constitution. The trial court granted the motion to dismiss but certified that order for immediate review, and the Oklahoma Supreme Court took it up.

The Oklahoma state constitution provides, in relevant part, that "every act of the Legislature shall embrace but one subject." This is intended in part to prevent "logrolling," the court said, which is bundling desirable provisions with unrelated, undesirable ones in order to make a law "veto proof" or certain to be vetoed. The court found that the 2009 law that contained the affidavit requirement, the Comprehensive Lawsuit Reform Act, contains 90 sections that are not closely related by theme or purpose. One adopts federal procedure code to control state lawsuits; another helps collects Medicaid refunds; several other provisions limit liability for specific kinds of businesses. Passing these provisions under the umbrella of lawsuit reform is not adequate to bring them into compliance with the single-subject rule, the high court said. A legislator considering the law would be required to vote for all of them in order to pass any. And the court declined to sever the provisions it found unconstitutional, arguing that this would make it the policy maker inappropriately. It revived the case and remanded to trial court.

This opinion from Oklahoma's Supreme Court followed a related opinion in which the affidavit requirement was struck down for separate reasons. In Wall v. Marouk, the high court found that the affidavit requirement was an unconstitutional "special law" that imposed different rights or duties on members of a class who are otherwise on the same footing. It also found that the requirement created a financial barrier to justice. As a Philadelphia medical malpractice lawyer, I've been highly critical of affidavit requirements in our state because of their financial cost--as well as the time problem they can create. As a Philadelphia injury lawyer, I don't believe we should impose more barriers to justice on people who are already suffering from serious physical and financial problems because of a nursing home's mistake.

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