November 2011 Archives

November 29, 2011

Ohio Nursing Home Aide Pleads Guilty to Abuse of Dementia Patient Caught on Camera

Here in greater Philadelphia, we recently saw a case of Pennsylvania nursing home abuse exposed only because of a hidden camera. That patient is now living with her daughter's family, and the family has filed a lawsuit against the home even as prosecutors pursue charges against the three employees involved. As a Philadelphia injury lawyer, I was interested to see a recent article in the Cleveland Plain Dealer about a similar hidden-camera situation uncovered abuse in an Ohio nursing home. According to the article, a former aide at the Prentiss Center for Skilled Nursing Care pleaded guilty this week to seven counts of abusing or neglecting a patient. Virgen Caraballo and other aides are accused of abusing and mocking Esther Piskor, 78, after they were caught on a hidden camera installed by her son. Caraballo and three others were fired, and the Piskor family is now suing the home.

Steve Piskor moved his mother into the Prentiss Center in 2009. He became concerned about the quality of her care after his daily visits sometimes found her sitting in a soiled wheelchair. He also found marks on her face. He filed four complaints with the home that led to no action, he said, so he installed a camera in the room that was visible to employees. Nursing home administrators permitted the employees to put a towel over that camera, so Piskor installed a hidden camera disguised as an air freshener and posted a sign on a bulletin board in her room notifying visitors about the camera. Within two days, he says, he had footage of employees throwing Esther Piskor into a wheelchair, pushing a hand into her face, spraying something into her face and other inappropriate behavior. He and his attorney brought the videos to police and nursing home administrators -- though the administrators reportedly debated whether the behaviors constituted abuse. Esther Piskor has been moved to another home.

The family's attorney said he suspects Esther Piskor was not the only victim, and as a Pennsylvania nursing home lawyer, I suspect he's right. Often, this kind of abuse or neglect is not targeted at one specific individual, but a result of failures throughout the system in place at the home. Sometimes, neglect grows from understaffing homes to save money -- staffers are simply too overwhelmed to give everyone the attention they need. As a result, they may start cutting corners or forgetting vital information about medication, feeding requirements and more. Cost-cutting measures can also lead to the hiring of workers with little training on the needs and legal rights of nursing home patients. As a Philadelphia medical malpractice lawyer, I believe patients deserve to be placed ahead of nursing home companies' profits.

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November 23, 2011

Pennsylvania Watchdog Raised the Alarm on Unethical Promotions of Risperdal in Nursing Homes

As a Pennsylvania nursing home lawyer, I have watched with interest the progress of multiple lawsuits over the antipsychotic drug Risperdal (riperidone). The drug, made by Johnson & Johnson's Janssen subsidiaries, is the subject of a federal lawsuit based in Massachusetts and numerous state lawsuits, all alleging that Janssen paid kickbacks to medical providers to promote the drug, thus defrauding Medicare and Medicaid, and downplayed negative safety information. This is especially disturbing because post-approval studies have shown that Risperdal carries a high risk of stroke, weight gain and related metabolic problems like diabetes. For this reason, it is no longer widely used off-label in dementia patients -- one of the uses Janssen is alleged to have illegally promoted.

According to the Morristown, N.J., Daily Record, Pennsylvania Inspector General's investigator Allen Jones noticed in 2002 that a computer program used by the state seemed to recommend Risperdal even when a less expensive medication would be appropriate. Jones couldn't find any independent studies suggesting that Risperdal or other Janssen drugs were more effective than older generics, but the computer program, which doctors used to prescribe drugs, mandated them. Jones went public with his claims in 2004 and was fired. He is now an expert witness in a Texas state lawsuit alleging that the drug company defrauded the state's Medicaid program out of many millions of dollars, through a similar computer program and questionable payments to doctors. A similar Pennsylvania lawsuit is on appeal, and ten other states and the federal government are also pursuing claims.

By the time Risperdal's patent expired in 2007, it had generated $25 billion in profits for Janssen. It is approved for the treatment of patients with schizophrenia and bipolar disorder, and sometimes with autism. As a Philadelphia injury lawyer, I'm interested in the nursing home safety aspects of this story. The drug's use to control dementia symptoms is off-label to start with, which means the company may not promote it for that use but doctors are free to prescribe it. This means offlabel marketing, including but certainly not limited to the Omnicare kickbacks, is already a violation of the law. However, independent studies have shown that Risperdal may increase the risk of death when used in dementia patients. In most cases, the death was cardiovascular in nature, which means heart failure, stroke or another serious medical emergency. As a result, the FDA required a black box warning on Risperdal's label in early 2011. As a Philadelphia medical malpractice lawyer, I'm not sorry to see that the rate of new prescriptions for this purpose has plummeted since then. Not only is the risk too great, but the use to calm irritable dementia patients could be considered a form of Pennsylvania nursing home abuse -- chemical restraints.

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November 14, 2011

Delaware Supreme Court Resurrects Nursing Home Lawsuit Missing Expert's C.V. - Dishmon v. Fucci

As a Pennsylvania nursing home lawyer, I was interested to see a nursing home decision from next door in Delaware. In Dishmon et al. v. Fucci et al., Michael Dishmon and others sued a nursing home for alleged malpractice leading to the death of his father. Dishmon filed an affidavit of merit, as required by Delaware law, as to the validity of his claims. However, the filing did not include a copy of the expert's C.V. (professional resume), and the trial court dismissed the case on that basis. The Delaware Supreme Court reversed it, finding that the lack of a C.V. was a procedural error only and that the trial court should have used its discretion to allow the C.V. to be filed at a later date.

James Dishmon entered the Hockessin Hills nursing home in late December of 2004 with a variety of medical problems, including heart problems. Four days later, he died of acute coronary ischemia and coronary artery disease. His son, Michael Dishmon, alleges that contrary to his express instructions, Dr. Pasquale Fucci and his physician's assistant, Bernie Schneider, put a "do not resuscitate" order on his father. Thus, the Hockessin Hills staff made no effort to revive the elder Dishmon when he fell ill. Michael Dishmon sued in December of 2006 and timely filed an affidavit of merit written by Dr. Herbert Muncie, which defendants moved to review in camera. That review led the judge to dismiss the case for three reasons: It did not contain a copy of Muncie's C.V.; it didn't demonstrate familiarity with the standard of care for a physician's assistant; and it didn't go into enough detail on Muncie's opinion. Dishmon moved for relief from the judgment within two weeks, attaching the missing C.V., but the trial court denied it without comment four months later.

Dishmon appealed, challenging all three grounds for dismissal. The Delaware Supreme Court started with the issues of Muncie's detail and familiarity with the physician's assistant standards. Though Delaware's affidavit of merit statute is designed to prevent frivolous lawsuits, the court said, its requirements are "purposefully minimal." Thus, it found that Muncie's affidavit was legally sufficient because it met the requirements of Delaware state law: "The General Assembly did not intend a minitrial at this stage of the litigation." Thus, the defendants were wrong to argue that Muncie needed to demonstrate special familiarity or evidentiary support to file a legitimate affidavit. The high court next turned to the C.V., which it suggested the trial court may not have dismissed if it hadn't found other parts of the affidavit insufficient. Delaware public policy favors allowing lawsuits to continue, it said. And trial courts have discretion to allow litigants to cure procedural mistakes. Thus, the trial court should have used its discretion to allow Dishmon to cure the mistake -- particularly in light of the requirement that the C.V. be submitted in a sealed envelope, leaving the attorney no chance to double-check its contents. Finally, the high court urged trial judges to supply reasoning for their decisions, which was absent in this case.

Though the court is reserved in its disapproval, this case still seems like a victory to me as a Philadelphia injury lawyer. In essence, the high court found that the trial court dismissed the case arbitrarily and, for the first two reasons, for reasons contrary to the law. Plaintiffs are required to file these affidavits in many states, including Pennsylvania. While the requirements differ from state to state, the same principle applies: Litigants should not be required to go beyond the requirements of the statute in order to keep their cases alive. Indeed, these statutes are themselves special requirements that don't apply to other kinds of lawsuits and were likely put in place for political reasons, requiring families that suffered from Pennsylvania nursing home abuse to jump through extra hoops. As a Philadelphia medical malpractice attorney, I vigorously fight to ensure my clients' cases aren't dismissed with arbitrary court rulings.

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November 7, 2011

CDC Calls for Increased Strep Throat Investigations After Philadelphia Nursing Home Outbreak

As a Philadelphia injury lawyer, I was disappointed to see that a Philly-area nursing home is getting national attention for the wrong reasons. As the Philadelphia Inquirer reported Oct. 29, the U.S. Centers for Disease Control and Prevention called out a Montgomery County nursing home for having "one of the largest and most prolonged" outbreaks of streptococcus infections in a nursing facility. The CDC report did not name the home, but the Inquirer determined that the home is Arista Care at Meadow Springs in the town of Plymouth Meeting, and an administrator there confirmed the outbreak. In all, 13 residents had invasive strep and 10 had noninvasive strep. The CDC urged all long-term care facilities to investigate even a single case of strep and ensure they have good practices for controlling infections.

Two people died at Arista Care, but the home disputes that the cases were directly linked to strep. However, the CDC and the Pennsylvania health department both had records of multiple infection control problems at Arista Care, including ineffective "hand-hygiene practices." State records showed that not every room had gloves and that the facility had housekeeping problems. The outbreak started in October of 2009 and was likely carried into the facility by more than one source, the article said. Near the beginning, admissions to the facility were suspended for about two weeks while five people, including four workers, were treated for the infection. In April of 2010, Artsta Care hired a full-time worker whose job is infection prevention. The spokesperson also mentioned adding hand sanitizer dispensers to every room and testing each new patient for strep. A state spokesperson said there have been no new cases since December of 2010.

It's a relief to hear that this home is getting praised by the state for taking the necessary steps to stop the outbreak. But as a Pennsylvania nursing home lawyer, I think it's worth asking what kind of ineffective practices may have led to the outbreak in the first place. Infectious disease control is absolutely vital at nursing homes, because nursing homes combine two features that make outbreaks particularly risky: vulnerable older people and many people living in close quarters. Age and illness can both depress an individual's immune system; once the infection takes hold, age makes the victim more likely to develop a complication like dehydration. And living in close quarters makes it very easy to spread an infectious disease like strep, which spreads through close contact between people. As a Philadelphia medical malpractice lawyer, I hope nursing homes take the CDC's warning to heart, because the risk is severe.

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November 1, 2011

Alabama High Court Remands Arbitration Dispute In Case of Delayed Motion to Arbitrate - Aurora Healthcare Inc. v. Ramsey

One very common issue for me as a Pennsylvania nursing home lawyer is arbitration agreements. Many homes, especially private for-profit homes, will require or pressure patients into signing arbitration agreements when they enter the home. These agreements take away the patient's right to pursue justice through the court system; instead, they are compelled to use a form of private judging that has no jury and is not public record. Some studies have even shown that some arbitrators decide in favor of the large company paying them more often than they decide in favor of the individual bringing the lawsuit. For these reasons, we always prefer to go to open court. This was also the preference in Aurora Healthcare Inc. v. Ramsey, a nursing home negligence case in Alabama. The trial court there found that Aurora waited so long to invoke its arbitration agreement that it prejudiced Sharon Ramsey, but the Alabama Supreme Court sent the case back for more investigation.

Ramsey is the administrator of the estate of Mary Pettway, who died at 75 after two stays in Aurora nursing homes. Pettway signed an arbitration agreement on her second admission to a home. However, she ended up returning to the hospital, where she died. Ramsey filed a complaint on Nov. 3, 2005, alleging wrongful death and other common-law torts. Aurora responded by moving for a change of venue, which it eventually got, and filing other pretrial and discovery motions. It didn't raise the issue of an arbitration agreement until Nov. 3, 2006; another filing from that day said it hadn't realized an arbitration agreement existed until then. Litigation continued at least two years, followed by a two-year gap in the record. When the trial court finally addressed the issue in June 2010, it denied arbitration, saying Aurora's pursuit of the litigation prejudiced Ramsey by incurring considerable expense. Aurora appealed.

On appeal, the nursing home company got a second chance, although the issue wasn't fully settled. Under Alabama law, the Alabama Supreme Court said, denying arbitration is correct when the party seeking arbitration has substantially invoked the arbitration process and when the opposing party has been substantially prejudiced as a result. Ramsey failed to meet that second burden, the court found. The litigation expenses she incurred in the change of venue dispute cannot count under state law, it said, because defendants have the right to establish venue before compelling arbitration. The subsequent litigation expenses were primarily about discovery issues, the court said -- and these could not prejudice Ramsey because discovery would also have taken place in arbitration. Nor are expenses for opposing arbitration prejudicial. The court noted that Aurora had filed motions that would have been unavailable in arbitration, but that Ramsey didn't incur expenses responding to those. Thus, there was little evidence that Ramsey met the high burden of showing prejudice, it said. To determine whether she could meet that burden, the Supreme Court remanded the case to trial court.

As a Philadelphia injury lawyer, I wish Ramsey well in the remanded case. Arbitrators are not necessarily prejudiced against the plaintiff, but studies show that they can be. Arbitration can also remove one of the benefits of litigation -- shining a light on unsafe or illegal practices that lead to Pennsylvania nursing home abuse. Indeed, this may be enough to explain why nursing homes so vigorously pursue arbitration agreements in the first place -- so their dirty laundry stays unaired. Of course, nursing homes also wish to avoid the expense of litigation, which is part of the stated reason for arbitration. However, this argument is somewhat undercut by the pursuit of years of pretrial litigation, as the Alabama high court noted. As a Philadelphia medical malpractice lawyer, I do not believe businesses with more attorneys and more money at their disposal should be able to have their cake and eat it too.

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