July 2011 Archives

July 25, 2011

Lay Testimony Is Enough to Establish Abuse of Nursing Home Patients - Stone v. Missouri Dept. of Health Services


As a Pennsylvania nursing home lawyer, I frequently use witnesses to abusive behavior at nursing homes when my cases go to trial. Those witnesses are not always experts in what constitutes abuse; they are simply the people who happened to be nearby when the incident occurred. So I was interested to see a recent ruling from the Missouri Supreme Court saying the testimony of a non-expert witness is enough to prove that a nurse knowingly abused a patient. In Stone v. Missouri Department of Health Services, the complaint was actually from the nurse, Catherine Ann Stone, who was appealing a temporary disqualification from working that stemmed from allegations that she abused a patient.

Stone was a charge nurse at a nursing home; part of her job was to dispense medication to patients who needed it. In the incident underlying her case, she had to give medication to K.S., a female patient with dementia and mental disabilities who was known to become agitated and violent when receiving mediation. The instructions for K.S. said to leave her alone if this happened and try again later. On this occasion, after K.S. knocked a spoon away from her mouth and hit Stone in the shoulder, Stone asked a nursing assistant to restrain the arm. Stone then forced the spoon into the patient's mouth, pushing her head forcefully against the back of a wheelchair. A dietary aide who witnessed this said K.S. was upset and crying, and took steps to calm her down rather than remove her from the dining room, as Stone instructed.

The dietary and nursing aides reported the incident and Stone was suspended, then fired. The incident was also reported to the state, which concluded that the incident was abuse and Stone would be disqualified from working as a nurse in Missouri for 18 months. Stone filed an administrative appeal, which she lost. She then appealed to state trial court, which reversed the decision, saying expert testimony was needed to show that K.S. suffered any physical or emotional harm. The state appealed.

The Supreme Court started by noting that the "injury or harm" necessary to find abuse is not defined by the statute or caselaw. However, previous nursing home abuse decisions had established that there is a low threshold for finding injury or harm, and that the mere fact of striking a patient necessarily involves injury or harm. In those decisions, expert testimony was not necessary. The same applies here, the Supreme Court said. Laypeople may testify as to what they experienced, and no special expertise is necessary to determine whether someone with mental disabilities is suffering. The court also found that Stone committed the abuse knowingly, because a reasonable person would have known that it would be emotionally distressing for K.S. to be held down and force-fed her medication, especially because she was known not to like her medication. Thus, the Supreme Court reversed the trial court and authorized the state to disqualify Stone from nursing for 18 months.

As a Philadelphia injury lawyer, I believe the court was right to find that a lay witness is enough to establish whether an action constituted abuse of a person with dementia. I believe most people would be emotionally distressed if they were physically held down and force-fed medication. A person with mental disabilities is not likely to feel differently about it, although it may be harder for that person to express it. In fact, judging by the facts laid out in this opinion, K.S. reacted with clear signs of fear and distress: screaming, crying and attempts to move away. Improper restraints are a clear type of Pennsylvania nursing home abuse, because they restrict the patient's liberty and autonomy for the convenience of the nursing home's staff. As a Philadelphia medical malpractice lawyer, I believe nursing homes can and should do better, even if it requires them to take a little more care.

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July 18, 2011

Woman Fired From Nursing Home for Assisting State Investigation Wins Damages - Williamson v. Ciena Healthcare Management


As a Pennsylvania nursing home lawyer, I was interested to see a story out of Detroit about a nursing home employee who was actually fired for putting patient safety first. That was the allegation made by Elizabeth Williamson, who sued Ciena Healthcare Management for wrongful firing. Williamson alleged that she was fired after cooperating with an investigation by the Michigan Department of Community Health, which was looking into several patient safety incidents. After a six-day trial in Williamson v. Ciena Healthcare Management, a jury in Wayne County, Mich. awarded Williamson $705,000 for lost pay and emotional suffering.

Williamson was a respiratory therapy manager at a Detroit nursing home called Omni Continuing Care. She and her colleagues were interviewed by the state Department of Community Health after several patient safety incidents. In one such incident, a patient who was not eating was given insulin, causing very low blood sugar levels. A nurse was supposed to check on the patient, but did not and falsified records showing she had, with the cooperation of supervisors. The patient was found dead by an outside lab technician, who also discovered the nurse sleeping. Another incident involved a patient who was left unsupervised long enough to pull out a tracheostomy; the patient died. In a third incident, a resident was given a wrong dosage of narcotics and developed respiratory distress, which wasn't properly assessed. And the state issued a fourth citation after an employee tied a resident to the bed with sheets and clothing.

As part of its investigation, the Department of Community Health interviewed Williamson and other managers at Omni. The state investigator testified that where others were evasive or tried to hurt the investigation, Williamson was honest and accurate. After the investigation was completed, she was fired. Omni was eventually cited for failure to train, monitor or hold staff members accountable, understaffing and directing employees to falsify records.

Unfortunately, news coverage and a law firm's press release don't tell us whether the facility was sued, fined or otherwise faced consequences for its actions. But as a Philadelphia medical malpractice lawyer, I feel confident that a facility with the record of violations outlined here could face both regulatory penalties and lawsuits by families of the victims. Families who put vulnerable loved ones in a nursing home expect the home to provide the kind of care they can't, including monitoring when necessary as well as medical expertise. When nursing homes not only don't provide this, but take steps to cover it up, they are violating families' trust as well as the law. As a Philadelphia injury lawyer, I help families with this kind of history of Pennsylvania nursing home abuse and neglect hold the facilities legally and financially responsible, recovering money they can use to find more appropriate care and making sure the facility's poor record is well publicized as a warning to others.

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July 11, 2011

Nursing Home Need Not Keep Resident Until Medicaid Appeals Are Exhausted - King v. Butler Rest Home et al.


As a Pennsylvania nursing home lawyer, I was interested to see an appeals court decision in Kentucky that could spell bad news for patients fighting for Medicare funding. In King v. Butler Rest Home et al., Geneva King and her family were fighting to keep her in the River Valley Nursing Home while she appeals decisions denying her Medicaid funding to pay for the home. King had been a private-pay client before applying, but was denied twice before filing appeals. While those appeals were pending, the home attempted to discharge King for nonpayment. In this decision, the Kentucky Court of Appeals found that King and other potential Medicaid recipients are not entitled to stay in nursing homes until their appeals are exhausted.

King stopped making payments to River Valley in June of 2009, as part of applying for Medicaid. She applied twice and was denied both times, then appealed. That appeal was pending in February of 2010, when the home informed her daughter and legal representative, Diana Livengood, that King would be discharged for nonpayment. King then filed an appeal of the discharge with the Kentucky Cabinet for Health and Family Services. That appeal was denied, and King then appealed to state court, which issued a temporary injunction stopping the discharge while it reviewed the Cabinet's decision. After affirming that decision, the court lifted its injunction, giving rise to the current appeal.

On appeal, King first argued that the Cabinet was wrong to rule that River Valley could not discharge her before there was a final ruling on the Medicaid appeal. Under Kentucky law, nonpayment is explicitly named as one of the reasons nursing home patients may be discharged. King pointed to rules from the Centers for Medicare and Medicaid Services, which say residents cannot be transferred for nonpayment unless their claims have been denied -- but the court said Medicare payment had already been denied. It declined to agree that a claim is not denied unless an appeal is exhausted. It also disagreed that notice should have gone to King rather than to Livengood, since Livengood was King's legal administrator. Finally, the appeals court ruled that River Valley did not prepare King insufficiently for the transfer, because it followed its normal discharge procedure of preparing the home a week in advance. Thus, King's appeal of her discharge was denied.

This situation is disappointing to me as a Philadelphia injury lawyer. Nursing home patients are generally in the homes because their health problems make it hard for family members to take care of them. This makes them hard to move; they frequently also do not want to be moved. If King's Medicaid appeal succeeds, she will later have to move back to River Valley or another home, disturbing her further in what was ultimately an unnecessary pair of moves. And of course, Livengood may not be well equipped financially and personally to handle having an elderly mother with health problems in her home full time. Of course, businesses need to be paid, but as a Philadelphia medical malpractice lawyer, I'm disappointed that the needs of this patient did not come first.

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July 5, 2011

West Virginia Supreme Court Finds State Nursing Home Law Preempted by Federal Arbitration Act - Brown v. Genesis Healthcare Corp.


Last week, I wrote as a Pennsylvania nursing home lawyer about arbitration agreements in nursing homes. This is a hot topic right now, as more and more private homes require patients or their families to sign arbitration agreements as part of their admissions to the home. That was true in the several consolidated cases before the West Virginia Supreme Court in Brown v. Genesis Healthcare Corp. et al, decided June 29. In all three of the cases at hand, patients; family members signed arbitration agreements with nursing homes, and later sought to sue the homes for substandard care after the patients died. Prior to death, all three were admitted to hospitals with conditions including infection, dehydration, pneumonia, malnutrition and untreated pressure sores.

In each case, the nursing homes asked the courts to dismiss their claims and compel arbitration under the contracts. In two of the cases, the plaintiffs appealed from a dismissal; in the third, the trial court asked the Supreme Court to decide whether the Federal Arbitration Act preempted the West Virginia Nursing Home Act. The Supreme Court started by noting that families are generally under a lot of pressure and unable to shop around when choosing a nursing home. The Nursing Home Act prohibits patients and their representatives from waiving their rights to the courts. However, the Supreme Court said, the FAA preempts the state Act because the state Act does not provide "grounds for the revocation of any contract"; it applies specifically to nursing home arbitration contracts.

The court next looked at the plaintiffs' contention that the arbitration clauses should be voided as unconscionable. Here, they had more success. The Supreme Court found the clauses unenforceable because they were contrary to public policy; unconscionable in their presentation to the patients; and unconscionable in their content. The trial courts that found otherwise gave no reasoning for their decisions, the court said, and failed to consider plaintiffs' arguments. Finally, the court held that it did not believe Congress intended the FAA to apply to pre-injury arbitration contracts, and directed trial courts to find the arbitration clause unenforceable.

As a Philadelphia injury lawyer, I am pleased to see this issue being addressed by more and more state high courts. West Virginia rulings do not apply in Pennsylvania, of course, but this ruling touches on federal preemption, which is an issue affecting every U.S. state. Thus, this decision and others like it from other states can provide a guide for our courts when they consider mandatory nursing home arbitration contracts. As the court wrote, nursing home contracts are often signed under stress, and lock patients in to legalities they may not fully understand. By squeezing nursing home patients and their families for this kind of concession, the homes put themselves in a position to allow all kinds of Pennsylvania nursing home abuse without accountability -- and that's bad for society's most vulnerable people.

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