June 2011 Archives

June 27, 2011

Court Finds Mental Incapacity Not a Bar to Enforcing Arbitration Agreement- Abell v. Bardstown Medical Investors


As a Pennsylvania nursing home lawyer, I was interested to see a trial court decision in Kentucky that could be bad news for nursing home residents in that state. In Abell v. Bardstown Medical Investors, Inc., Christine Abell sued a nursing home where she had been a resident, Life Care Center of Bardstown, for gross negligence, intentional and wanton conduct and disregard for her safety, stemming from alleged denial of care and mistreatment. The home moved to dismiss the case because Abell had signed an arbitration agreement on admission. Abell opposed that motion, saying the contract was not enforceable because she had been mentally incapacitated when signing it. She also argued that the contract was unconscionable and therefore unenforceable.

After a bad fall, Abell, 74, went to the hospital with a vertebral fracture. At that time, she lived in an "independent living facility." After three weeks in the hospital, she was discharged to the nursing home. When she was admitted, a nursing home employee noted that Abell suffered from a major mental disorder and requested a mental health screening. There was no indication that Abell was generally of below-average intelligence or impaired in another way. The screening found that Abell had not previously been treated for a mental health problem and suggested that any problem she displayed could be related to an infection. Directly after the screening, she was given a total of 37 intake papers to sign, including the arbitration agreement.

Abell argued that the arbitration contract should not be enforced because she was physically and mentally compromised when she arrived at the home; and because it was just one of many contracts in a large stack of paperwork. The court rejected this idea. The arbitration contract was not procedurally unconscionable, it said, because it was not intentionally unclear about its meaning and consequences. The court also dismissed Abell's argument that she didn't have the mental capacity to sign contracts when she was admitted. Under Kentucky law, sickness and distress are not adequate to create mental incapacity; Abell had to show that she did not and could not understand what she was signing. The record doesn't show any diagnosis of mental illness or impairment, the court wrote. Furthermore, there was no such diagnosis after she was admitted, and the screening said she did not have a serious problem. Thus, the court dismissed the case and granted the motion to compel arbitration.

As a Philadelphia injury lawyer, I would be interested to know what Abell's major mental disorder was, if it was not any kind of impairment. Arbitration agreements are an ongoing issue in nursing homes, in part for reasons similar to the ones raised in this case. Older people who are candidates for nursing homes are often sick or suffering from mental problems, which makes large stacks of paperwork like the one presented to Abell legally troublesome. Furthermore, an arbitration agreement makes it more expensive and difficult to hold homes responsible for Pennsylvania nursing home abuse, and less likely that the case will get media attention and warn others away from bad homes. As a Philadelphia medical malpractice lawyer, I urge clients to carefully consider everything they sign before entering a home and ask as many questions as they like -- because the patient is, after all, the client.

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June 20, 2011

Patient Advocates Ask HHS Not to Exempt Nursing Homes From Health Care Reform


As a Philadelphia medical malpractice lawyer, I wrote disapprovingly last month about the push among nursing home companies for an exemption from the Affordable Care Act. The Act is the official name of the health care reform law that has become the focus of several political fights, and one of its many provisions requires companies with 50 employees or more to provide health care to their employees. Companies that failed to do this would be fined. At least one industry group has told the media that the homes cannot afford to provide it because they have only a limited ability to raise their prices. Now, according to a June 20 article from Healthcare Finance News, nursing home patient advocates are actively opposing this with a letter of protest to the federal Department of Health and Human Services.

The group of 24 patient advocacy organizations was headed by Families for Better Care, a Florida-based group run by a former Florida nursing home ombudsman, Brian Lee. The letter called the industry's request an "outrage" that could have "disastrous consequences for residents." By exempting health care workers from the requirement to provide health insurance, the letter argued, the government would allow nursing home employees to continue coming to work sick, exposing their vulnerable patients to illnesses their compromised immune systems find hard to fight off. The letter also pointed out the very high rate of workplace injuries suffered by direct-care workers and the low wages that make it difficult for them to take time off or buy insurance in the open market. In an accompanying press release, Lee pointed out that nursing homes are largely government-funded and profitable. A McKnight's Long-Term Care News article suggested that the industry may be moderating its request.

I hope so. As a Pennsylvania nursing home lawyer, I do not believe it is in the best interests of anybody but nursing home owners to give them an exemption. People in the lowest-paid jobs frequently work when they're sick because they can't afford a doctor or a day off. Giving these workers access to basic health care would allow them to call in sick less often and get better faster. Not only would this limit residents' exposure to illness -- a goal in any facility where contagion is likely -- but it ensures that care is not interrupted by frequent turnover or substitutes. And that, as research has repeatedly demonstrated, reduces the chance of Pennsylvania nursing home abuse, neglect and other negative outcomes for patients. When the federal government considers this requests, as a Philadelphia injury lawyer, I hope it does so with patients' best interests in mind.

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June 13, 2011

Pennsylvania Nursing Home Bill Would Give Homes More Tools for Abuse Allegations


As a Pennsylvania nursing home lawyer, I was interested to read about a bill that could change the way nursing homes handle allegations of abuse, neglect and other regulatory violations. According to a June 12 article from the Standard-Speaker of Hazelton, a committee of the state Senate passed a bill last week that would give nursing homes the opportunity to hire an independent third party to investigate allegations against them by the state. The bill, if passed, would give homes the option to choose conventional investigation by the state Health Department or a third party investigator, which they would pay for themselves. It is backed by the Pennsylvania Health Care Association, a business group that represents nursing homes, and is being reviewed by the SEIU.

The bill by Joseph Scarnati, a Republican from Jefferson County, is intended to address complaints by the nursing home industry that the Health Department cannot be objective. Because Health Department workers often find the violations in the first place, or investigate complaints from taxpayers, the homes believe the Health Department has an incentive to validate those workers' findings. Under the bill, findings by independent companies would be implemented only with approval from the Health Department. If the department disagrees, it would be able to make a written recommendation. The companies would come from a list maintained by the department, and nursing homes would pay for their own inspections. Scarnati said that means it wouldn't cost the state any extra, and a spokesperson for the PHCA said the obligation to pay would make homes carefully consider what they dispute.

This bill is not law; it still has to pass both houses of the state legislature. As a Philadelphia injury lawyer, I hope that before legislators vote, they carefully consider what else the nursing home companies might be buying when they pay for their own inspections. Independent companies that depend on nursing homes for their business might find they have a financial incentive to come up with the results their customers want -- no health violations. If the Health Department doesn't have the time or resources to dispute this, it could allow hundreds of health code violations to go unaddressed. And while inspections would cost the homes money, that cost would likely be dwarfed by the cost of a single nursing home abuse lawsuit from a family using the state inspection results to prove there were problems at the home. As a Philadelphia medical malpractice lawyer, I also think it's appropriate in some ways for the Health Department to have a "bias." It should be biased in favor of whatever is safest for elderly and disabled Pennsylvanians, because accountability is an important tool for fighting Pennsylvania nursing home abuse.

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June 6, 2011

Psychiatrist and Federal Inspector General Debate Use of Drugs in Nursing Homes


I've written here several times as a Philadelphia medical malpractice lawyer about the use of antipsychotics in nursing home patients with dementia. The FDA has not approved antipsychotics for use controlling outbursts from patients with dementia, but a May study from the federal Department of Health and Human Services found that 88 percent of antipsychotic prescriptions filled by Medicare were for patients with dementia. Critics say this exposes the elderly patients to unnecessary health risks, while advocates say they're the best option available and the risks are overstated. On June 1, CNN.com ran op-ed articles on both sides of the debate, authored by HHS inspector general Daniel Levinson and psychiatrist Daniel Carlat.

Levinson said his office began investigating the use of atypical antipsychotics, a newer and more expensive generation of drugs, after a member of Congress asked about their use. Of the nursing home patients taking atypical antipsychotics under Medicare, he wrote, one-fifth were taking them in a way that violated Medicare standards. About half of the claims shouldn't have been covered at all, he said. This was especially concerning, Levinson wrote, in the wake of multiple settlements by drug companies for illegally marketing atypical antipsychotics and in one case, paying kickbacks.

In his piece, Carlat acknowledged that illegal advertising happens. Nonetheless, he defended atypical antipsychotics as less dangerous than studies have suggested. Many of the causes of death named in the studies, he said, are the most common causes of death for dementia patients overall. And despite being prescribed off-label, the drugs are effective at calming dementia patients who get confused and agitated as their memories and abilities fade. Geriatric psychiatrists try non-drug interventions, he said, but they do not always work.

As a Pennsylvania nursing home lawyer, I wonder how much of Carlat's article applies to a typical nursing home patient. The trouble with antipsychotics in dementia patients is frequently that their doctors are prescribing automatically, without a real examination. The doctors in question may not be psychiatrists or geriatric specialists, and nursing homes know that Medicare-funded drugs are quicker and less expensive than behavioral interventions. For this reason, I hesitate to believe that atypical antipsychotics are not misused. As a Philadelphia injury lawyer, I also wonder whether Carlat glossed over the risks of atypical antipsychotics. The drugs' increased risk of cardiovascular and metabolic complications has led to the FDA ordering a black box warning for the labels, the strongest available. And using antipsychotics as off-label sedatives may cut down on yelling and physical attacks, but keeping patients too drugged to experience life is a form of Pennsylvania nursing home abuse.

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June 1, 2011

Haverford Home Implicated in Nursing Home Abuse Case Gets Provisional License


As a Pennsylvania nursing home lawyer, I have used this blog to follow the story of the Delaware County nursing home where three ex-employees are accused of abuse. That home, the Quadrangle Sunrise Senior Living Center in Haverford, had its license pulled by the state in late April after a resident's family caught abuse on videotape. Now, as NBC Philadelphia reported May 27, the Quadrangle has received a new provisional license, covering only six months. The provisional license requires Sunrise Senior Living, the parent company, to meet multiple extra requirements to stay open, including implementing new hiring and training requirements; using independent oversight; and hiring an overnight manager for the dementia unit. Sunrise has a month to meet most of the requirements and 90 days to hire a full-time administrator with human services experience.

The Quadrangle hit the news after the family of Lois McCallister caught McCallister's abuse on a "nanny camera" disguised as a clock. Three employees -- Samirah Traynham, Tyrina Griffin and Ayesha Muhammed -- were taped making fun of McCallister and refusing to let her get dressed or leave the room. They have been fired and face elder abuse charges, with an arraignment scheduled for June 16. The state also pulled the Quadrangle's license to operate, saying its management failed to report abuse allegations, failed to investigate employee backgrounds quickly enough and made mistakes with medications and residents' belongings. Sunrise appealed that decision, and it's unclear whether the provisional license will end that appeal. The Philadelphia Inquirer noted that a provisional license can be pulled at any time.

As a Philadelphia medical malpractice lawyer, I am cautiously optimistic about this deal. The deal between Sunrise and the state DPW requires Sunrise to make major changes in the way it runs the Quadrangle, including new staff, more training for existing staff and independent oversight. If they work the way they're intended, these measures could prevent more Pennsylvania nursing home abuse -- which is what everyone wants. Closing this home might be appropriate if it's unable to clean up its act, but if it's not necessary, it's best for patients not to move. The state may revoke this temporary license if it does not feel that Sunrise is living up to expectations. And of course, this move doesn't take away the right of McCallister's family to pursue its nursing home lawsuit, so they can collect damages for the injuries to her dignity as well as the very real financial strain of finding other elder care. As a Philadelphia injury lawyer, I wish them good luck and hope Sunrise can make the needed changes at the Quadrangle.

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