August 2011 Archives

August 30, 2011

Oklahoma Appeals Court Upholds Judgment for Family of Veteran Who Died of Neglect - Lounds v. State

As a Pennsylvania nursing home lawyer, I know that keeping nursing home patients hydrated can be more difficult than it might sound. Older people can lose their sense of thirst, and some patients are disabled enough to need help with the mechanics of drinking. For these reasons, doctors advise caregivers that it's absolutely vital for patients to drink a certain amount of fluids per day -- but some nursing homes are too understaffed or uncaring to follow through. That was the allegation in Lounds v. State ex rel. Department of Veterans Affairs, a decision from the Oklahoma Court of Appeals. Lula Lounds sued the state-run nursing home where her father, David Shelton, died of causes including dehydration leading to kidney failure. The state raised issues on appeal including an alleged failure by Lounds to explain Shelton's care, but the court upheld a verdict for Lounds.

Shelton was 93 when he was admitted to the Norman Veterans Center, which is run by the Oklahoma Department of Veterans Affairs. The record does not show what medical conditions he had, but notes that he was supposed to be taking a diuretic and receiving at least 1,500 cubic centimeters of fluids per day. The record does show that the jury decided the center failed to provide that care. Just three weeks after his admission, Shelton had lost 20 percent of his body weight, and shortly died of congestive heart failure and acute renal failure caused by dehydration. At trial, evidence was introduced showing that the center failed to monitor Shelton's hydration, failed to respond to concerns raised by his family and did not follow its own policies. Lounds told the court she had not informed the center that her father was not taking a full dose of a diuretic, but said she never got a chance because an intake interview was promised but never completed. The center unsuccessfully moved to exclude testimony from her expert, Dr. Kaveh Kermanshahi, on the grounds that he is not a full-time nursing home doctor. Ultimately, the jury awarded $175,000 to Lounds, and found that more money was warranted although a tort awards cap made that impossible.

On appeal, the center argued that evidence for the verdict was insufficient and also that the trial court erred by admitting Kermanshahi's testimony. The center did not dispute the cause of death, but said Lounds failed to establish the standard of care she alleged the center did not meet. The appeals court disagreed. Lounds established a common-law standard of care in part through Kermanshahi, who the court said was clearly qualified as an expert. Furthermore, the center's medical director admitted in court that the center's care was not up to standards. Lounds also satisfactorily proved an alternative theory of statutory negligence under federal Medicare, Medicaid and veterans' laws that set standards for homes that take federal money. Finally, it dismissed the argument that $175,000 was an excessive award, noting that the money covers both funeral expenses and damages for the emotional pain of the family members.

In fact, the award seems rather small to me as a Philadelphia injury lawyer, given the damages cap. It's difficult to put a value on a person's life, but the award in question is designed not only to compensate his family, but also deter wrongdoing by the nursing home. In this case, the nursing home essentially admitted wrongdoing, but was prevented from facing higher damages by a damages cap -- even though the jury expressly said it would have awarded more. This may be public policy in Oklahoma, but I do not believe it is enough to deter Pennsylvania nursing home abuse. As a Philadelphia medical malpractice lawyer, I hope nursing homes in our state are paying better attention to the basic needs of their residents.

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August 22, 2011

Texas High Court Rules Nursing Home Claim Is Medical Malpractice Under State Law - Omaha Healthcare Center v. Johnson

As a Pennsylvania nursing home lawyer, I frequently address issues that cross the line between ordinary negligence, like that of a careless driver, and medical negligence. Medical negligence is also called medical malpractice, and it has become a controversial political issue. This in turn has led many states to pass special laws that apply to medical malpractice cases but not other types of negligence. One of those laws formed the basis of the controversy in Omaha Healthcare LLC v. Johnson, a Texas Supreme Court case finding that a nursing home negligence case fell within the purview of the state's law on health care liability claims. The ruling means Wilma Johnson missed her chance to file an expert report within 120 days of filing suit, and the high court dismissed her case.

Johnson is the sister of Classie Mae Reed, who died at the Omaha Healthcare Center nursing home after being bitten by a brown recluse spider. Johnson sued Omaha for negligently failing to inspect and clean the premises and take pest control measures. Omaha moved to dismiss on the grounds that Johnson's allegations were health care liability claims (HCLCs) and she failed to file the required expert report; Johnson maintained that her suit was about ordinary negligence. The trial court and the Court of Appeals both sided with Johnson. The appeals court ruled that Johnson's claim was a safety claim, and that Texas law requires safety claims to be directly connected with health care to quality as HCLCs. Omaha appealed.

On appeal, the Texas Supreme Court reversed both lower courts. Under state law, it said, HCLCs include claims "against a health care provider or physician for ... other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care[.]" Caselaw and Texas codes agree that meeting patients' fundamental needs, including effective pest control, is part of the services a nursing home provides. Furthermore, the court said, health care is defined in Texas law as "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's ... confinement." Johnson pleaded causes of action for failure to take ordinary care, the court said, but "the underlying nature of her claim" was that Omaha did not exercise the ordinary care expected of a nursing home. Thus, it was an HCLC and should have been supported with the required expert report. A dissent in the case said the majority's interpretation of the statute would cause confusion.

As a Philadelphia medical malpractice lawyer, I appreciate that the Texas court acknowledged the overlap between nursing home abuse and medical malpractice. The kind of abuse that involves overuse of prescription drugs, for example, could likely be called medical malpractice without any controversy. However, this ruling effectively adds another barrier to filing a claim for victims of nursing home neglect, because it includes more cases as HCLCs than Johnson and the lower courts apparently thought was appropriate. This is disturbing to me as a Philadelphia injury lawyer, because more barriers will undoubtedly discourage patients and their families from pursuing claims. This makes it easier for negligent homes to continue providing shoddy care, secure in their knowledge that they're unlikely to be held responsible.

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August 15, 2011

New Jersey Nursing Home Immune From Lawsuits as Charitable Organization - Griffin v. Bayshore Medical Center

As a Philadelphia injury lawyer, I was interested to read about a personal injury case against a nursing home that could not go forward -- not because the case was weak, but because nonprofit nursing homes are immune from many lawsuits in New Jersey. Edward Griffin et al. v. Bayshore Medical Center et al. brought two similar and related claims by two people injured in the same way at the Bayshore Nursing Home. Edward Griffin died of complications from a fall he took outside the home after he tripped on a protruding piece of sidewalk. Philomena Papa fell over the same protrusion about five month later and suffered permanent injuries. Papa, her husband, and the estate and son of Griffin sued the home and its associated corporate entities, but the Superior Court of New Jersey's Appellate Division found the home was immune under New Jersey's Charitable Immunities Act.

Griffin, 91, was on his way to visit his wife in the home when he tripped and fell on Oct. 16, 2007. The fall broke his C2 vertebra and landed him in the intensive care unit, where he stayed until his death the following Nov. 6. Papa, 86, was on her way to visit her husband in the home when she fell and broke several bones, including her kneecap and the orbit bone of one eye. She now relies on a cane. Both families brought their complaints in one suit naming Bayshore Medical Center, Bayshore Community Hospital and Bayshore Health Care and Rehabilitation Center. Bayshore Health Care Center is a nonprofit organization and part of a group of entities that also includes Bayshore Community Hospital. Bayshore Rehabilitation Systems Inc., however, is for profit. Despite the similar names and being located on the same road, the nursing home's parent entity said it was not related to Bayshore Rehabilitation Systems, and extensive discovery could not connect them. The trial court therefore granted summary judgment to the defendants and denied a cross-motion to file a new amended complaint.

Plaintiffs appealed, arguing that there was a genuine issue as to whether Bayshore Rehabilitation Systems made the nursing home a for-profit entity not entitled to protection under the Charitable Immunities Act. The Appellate Division disagreed. It noted that summary judgment was granted 13 months after the claim was originally filed, and after "a no doubt diligent search" by the plaintiffs that failed to come up with anything. The mere existence of a for-profit corporation with a similar name did not cast doubt on that status. Thus, there was no genuine issue of material fact to try. The court also denied their argument that they should have been granted leave to amend their complaint to allege gross negligence and recklessness, which would have given them an opportunity to avoid the Charitable Immunities Act. Gross negligence, the court said, is "wanton or reckless disregard for the safety of others" -- and it disagreed that failure to fix the protruding sidewalk qualifies as grossly negligent or reckless. The sidewalk protrusion of an inch and a half simply does not qualify, the court noted. Thus, it upheld both of the trial court's rulings.

As a Pennsylvania nursing home lawyer, I'm disappointed that these plaintiffs were unable to get their day in court. It should surprise no one that many of the visitors to a nursing home are older people themselves, because they are the loved ones of older people -- their spouses, brothers and sisters and friends as well as children and grandchildren. For older people, a trip and fall that a child might shake off can be life-changing, because it can cause injuries that rob them of their independence. As Griffin's family discovered, it can even be fatal if the victim is unlucky enough to fall on the head or neck. Leaving dangerous conditions like a tripping hazard unfixed is not Pennsylvania nursing home abuse as families normally think of it, but it is certainly dangerous and highly avoidable. As a Philadelphia medical malpractice lawyer, I'm glad Pennsylvania does not recognize a charitable immunities defense.

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August 8, 2011

Jury in Nursing Home Abuse Case Awards $91.5 Million to Son of Woman Who Died of Dehydration

As a Philadelphia injury lawyer, I was pleased to see a large jury award in a case of alleged severe neglect in Pennsylvania's neighboring state of West Virginia. According to the Charleston Gazette, jurors in Kanawha County awarded $91.5 million to the family of a woman who died of complications from dehydration. Dorothy Douglas died at the age of 87 after spending three weeks at Heartland of Charleston. Attorneys for her son, Tom Douglas, alleged that parent company ManorCare Inc. (which is itself owned by an equity company called Carlyle Group) intentionally kept the staff to patient ratios at Heartland very low to save money. They alleged the very low staffing levels, and the extremely high turnover rates they produced, had a side effect of making it difficult to properly care for patients with difficulty eating and drinking on their own, like Dorothy Douglas.

Dorothy Douglas came to Heartland from her son's home, where she could walk and talk a little despite suffering from Alzheimer's, dementia and Parkinson's disease. The family was using Heartland as a short-term home before a spot at a home for dementia patients opened up. But in the three weeks Douglas was at Heartland, they said she lost 15 pounds, became unresponsive and was confined to a wheelchair. By the time she left for the new nursing home, she was covered in bruises, sores and scabs, and her mouth was encrusted from what the attorneys said was dehydration. She died in the hospital one day after the transfer. Attorneys for Tom Douglas said Heartland had a 112 percent turnover rate, in part because the low staffing levels made it hard to properly care for patients. Heartland attorneys said the death certificate for Douglas cited dementia, not dehydration, as the cause of death; and that she refused to eat or drink. West Virginia state inspectors cited Heartland for 28 deficiencies between February of 2010 and April of 2011, more than double the statewide average of 13. The Carlyle Group has said it will appeal.

As a Pennsylvania nursing home lawyer, I'm pleased that this case is so high-profile locally, because it might make Charleston-area residents think twice about putting their loved ones in a home that apparently has very high turnover. Unfortunately, it's not unusual for nursing home patients to have trouble getting nutrition and water. Older people sometimes lose their sense of thirst, which means nursing home staff members must urge them to drink and make drinking convenient. The situation is even worse for patients who have dementia that makes them forget to eat, or physical disabilities that make eating and swallowing difficult. In all of these cases, nursing home workers need to work closely with the patients to ensure they eat and drink, helping them when necessary. This is difficult work even under good conditions.

When a home is too understaffed for workers to do basic parts of their job, tasks like helping residents remember to drink water can fall by the wayside (since younger, healthy people can forget how important this is). At severe enough levels of understaffing, Pennsylvania nursing home abuse and neglect become much more likely. As a Philadelphia medical malpractice lawyer, I believe homes should be required to address these issues, preferably before they create a tragedy like this one.

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August 1, 2011

Hospices Receive Allegations of Neglect and Abuse Resembling Nursing Home Abuse

As a Philadelphia injury lawyer, I focus my nursing home abuse practice on fighting abuse of vulnerable elderly and disabled people in nursing homes. But according to a July 22 article from Bloomberg News, nursing homes aren't the only places where able-bodied people neglect and take advantage of the sick -- hospice care companies have come under fire. The article outlines allegations that some hospice companies, especially for-profit hospice companies, routinely neglect the medical needs of their patients. It also reports allegations that for-profit hospice companies have pushed hard to admit people who are not terminally ill or who are expected to live a long time, and keep them from being discharged while still alive, so they can maximize their payment. In many cases, these companies are being paid from Medicare and Medicaid, just like nursing homes.

One such company is Vitas Healthcare, a subsidiary of Chemed Corp. Robert Rogers of California is suing Vitas over the death of his mother, Thelma Covington, from sepsis brought on by gangrene in her toe. Medical records show that a Vitas doctor requested cleaning and ointment for the wound on Covington's toe in early July of 2008, but this was never carried out. In late July, the treatment was discontinued without having started. When she complained of intense pain, nurses gave her morphine and a sedative. A month later, nurses noted signs of gangrene, yet noted "interventions effective." A few days later, a nurse found the maggots and wrapped the toe in plastic. When Rogers visited and found his mother in severe pain, wheezing and passing out, he asked Vitas employees to admit her to the hospital, only to be told that "our job is not to prepare them to live." He called 911 and an emergency room doctor eventually removed 11 maggots from an open wound on Covington's toe. Covington died in the hospital two days later.

This lengthy article contains several other stories of alleged patient neglect at for-profit hospice companies. As a Pennsylvania nursing home lawyer, I wouldn't hesitate to sue over many of these allegations of neglect and elder abuse. The article describes companies whose motive is very clearly profit rather than patient care, with dubious medical diagnoses used to admit some patients and allegations that they were routinely understaffed to save money. Understaffing is a major cause of Pennsylvania nursing home abuse, because employees stretched too thin simply can't give all the patients the attention they need. As a Philadelphia medical malpractice lawyer, I hope lawmakers take note of this and take steps to ensure that laws against abuse and neglect apply to hospice care just as well as nursing homes.

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