April 2012 Archives

April 30, 2012

West Virginia Supreme Court Takes Up Appeal by Nursing Home Hit With $91.5 Million Verdict


Last year, I wrote here about a very large jury verdict in West Virginia, for the family of a woman who died of alleged neglect after just 15 days in a nursing home. So, as a Pennsylvania nursing home lawyer, I was interested to see a new development in that case. According to WOWK, the parent company of the nursing home Heartland of Charleston has succeeded in having its appeal considered by the West Virginia Supreme Court. The company's appeal granted a request to suspend enforcement of the trial court's judgment while it considers whether there were errors in the jury verdict form used in the case. The case gained local media attention because the Kanawha County jury awarded $91.5 million to the family of Dorothy Douglas, finding she died at least in part because of neglect during her short stay at Heartland of Charleston.

The family had placed Douglas in Heartland as a temporary measure while they waited for a spot in a dementia-specific home to open up. She suffered from Alzheimer's with dementia, Parkinson's disease and other conditions, but was able to walk and talk a little before moving to the home. The family contended in its lawsuit that staff at Heartland neglected her needs so badly that she lost 15 pounds and became unresponsive during her stay there. Staff allegedly also confined her to a wheelchair, saying she was at risk of falls. Douglas died not long after her transfer out of Heartland. Her family says the cause of death was severe dehydration and other neglect, though the home and its lawyers point to the death certificate saying the cause of death was dementia. Her family's attorneys argued that with a turnover rate of 112 percent, Heartland didn't have the staff to care for Douglas or others properly; and that indeed, its business model revolved around keeping costs low by keeping staffing ratios low. It had more than double the state's average number of citations from February 2010 to April 2011.

According to the article, Heartland and its for-profit parent companies are asking the state high court to consider alleged mistakes in a jury verdict form. The article did not discuss what those mistakes were or how they would affect the jury's determination of the verdict. An attorney for the Douglas family said the nursing home companies had opposed another jury verdict form near the end of the trial, and ended up working from the family's proposed verdict form. That attorney also said the defendants had improperly used the jury verdict form to bring up certain legal issues for the first time. This is not permitted in appeals of lawsuits, he noted; trial courts must be given a chance to hear objections and the reasons for them so it can correct mistakes. The article also mentioned that the Douglas case has driven controversy over whether medical-malpractice damage caps should apply to nursing home cases, with this court splitting from another county circuit court on the issue.

As a Philadelphia medical malpractice lawyer, I'd welcome an investigation of that issue. As a rule, plaintiffs in Pennsylvania nursing home abuse lawsuits don't have to file medical malpractice claims, though some do; nursing home abuse claims are generally for negligence. Some nursing home defendants are not medical professionals and cannot be sued for medical malpractice in any case. Indeed, this is sometimes a problem with the care at a bad home -- inadequate training or experience for the jobs staff members must do. I also look forward, as a Philadelphia injury lawyer, to hearing about the outcome of this jury verdict form appeal. If the family's attorney is correct, much of the appeal will be simply disregarded by the West Virginia Supreme Court, making all of this much ado about not much.

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April 17, 2012

Mississippi Supreme Court Upholds Exclusion of Punitive Damages in Nursing Home Negligence Case - Estate of Gibson v. Magnolia Healthcare


Punitive damages are an ongoing issue for Pennsylvania nursing home lawyers like me. Political movements for "tort reform" often ban or cap punitive damages, believing they are "free money," but nothing could be further from the truth. Juries and judges may only award punitive damages when the injury was caused by egregious intentional acts or knowing disregard for the victim's safety. They are designed for the rare cases when courts wish to deter the defendant from repeating the egregiously unsafe behavior. And of course, they're not common. However, because they're a political issue, courts may set a higher bar for considering them. That was what happened in Estate of Henry Gibson v. Magnolia Healthcare, Inc., a Mississippi Supreme Court decision. The estate challenged the court's decision not to allow consideration of punitives, as well as the constitutionality of the state's noneconomic damages cap.

Henry Gibson was 71 when he suffered a stroke and seizures that left him bedbound and incontinent, with trouble communicating and serious underlying health conditions like diabetes and high blood pressure. His family sought care at Arnold Avenue Nursing Home in Greenville, Miss. Gibson was overweight when admitted, so his family may not have seen a red flag when he lost 40 pounds during his year and a half at AA, while he was using a feeding tube. However, he was hospitalized on December 31, 2002 for difficulty breathing, and hospital staff discovered a collection of fluid and blood around his lung as well as a broken arm. Both were attributed to a fall, an unusual circumstance for a bedbound patient. Gibson's family transferred him to another home, but he died on Jan 26, 2003, of sepsis contributed to by the broken arm and a hematoma of the lung.

The estate sued, arguing that AA was negligent for leaving Gibson's bedrails down, allowing the fall; allowing two bedsores to develop by failing to turn him, then failing to prevent them from getting worse; failing to ensure he got the recommended feeding tube, causing malnutrition and dehydration; and failing to perform range-of-motion exercises to prevent him from losing use of muscles. They offered evidence that AA was short-staffed and had left bedrails down in the past, as well as failed to document Gibson's care. Despite arguments from the nursing home that there was no proof of a fall, the jury found for the estate and awarded $1.5 million, which the judge reduced to $575,000 due to a state cap on noneconomic damages. The estate also moved to allow the jury to consider noneconomic damages, but the judge denied this, finding evidence did not support a finding that AA's conduct was not "sufficiently egregious or offensive."

The estate appealed both the punitive damages decision and the state damages cap, arguing that it was unconstitutional. The Mississippi Supreme Court ultimately disagreed on both counts. The argument about the constitutionality of the statutory damages cap was rejected quickly, because the high court found that the estate had never raised the issue in trial court. Thus, it said, the issue was waived for consideration on appeal. But it did examine whether punitive damages should have been considered. Punitive damages are awarded in Mississippi when the defendant behaved with malice, actual fraud or gross negligence showing willful or reckless disregard for others' safety. The high court said the evidence presented by the estate, which relied on the same evidence used for compensatory damages, was insufficient to show this. Thus, it upheld the trial court's decision.

As a Philadelphia medical malpractice lawyer, I suspect the outcomes of both appeals might have been different in another state. In fact, some state high courts, including Arkansas and Georgia, have already ruled that punitive damages caps are unconstitutional (according to their own state constitutions). Because the Mississippi Supreme Court found the issue was waived, it didn't truly address this issue and may well revisit it in the future. As for allowing the jury to consider punitive damages, I wish the court had gone into detail on its reasoning. The kind of underfunding alleged by the estate, along with the history of leaving bed rails down, could well form the basis of a finding of reckless disregard for safety. As a Philadelphia injury lawyer, I ask for punitive damages whenever I feel state law and the circumstances warrant.

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April 3, 2012

FBI Arrests Five Nurses at Philadelphia For-Profit Hospice, Alleging $9 Million Medicare Fraud


As a Pennsylvania nursing home lawyer, I was extremely interested to see an announcement of arrests in a major alleged Medicare fraud ring involving nursing home care. According to the Philadelphia Business Journal, the FBI announced in late March that it had arrested five nurses at Home Care Hospice Inc. of Philadelphia, a for-profit hospice. Those arrested, all of greater Philadelphia, include Patricia McGill, the hospice's director of professional services; and nurses Natalya Schvets, Giorgi Oqroshidze, Yevgeniya Goltman and Alexsandr Koptyakov. Those arrests followed the October arrest of HCH's co-owner, Matthew Kolodesh, In all, the defendants are accused of submitting $9.32 million in fraudulent Medicare claims, for patients who weren't eligible for hospice care or who received less care than was billed for them.

According to the Business Journal, the now-defunct HCH provided hospice care for patients from nursing homes, private homes and hospitals. However, the FBI believes employees conspired to admit ineligible or inappropriate patients between 2005 and 2008. The four nurses McGill supervised are accused of creating fraudulent nursing notes for about 150 patients, in support of Medicare bills for services never provided; other notes reflected a higher level of care than actually provided. Those notes were submitted by McGill and an unindicted hospice director called A.P., for a total of $9.328 million in false Medicare claims. When HCH was notified of a claims review audit, McGill and A.P. reviewed and altered charts where necessary to support the false documents. After the audit required HCH to refund $2.625 million to the federal government, McGill and A.P. asked the staff to discharge hospice patients; 128 were discharged over four to five months, but often moved to another hospice owned by Kolodesh. Within six months, about 20 percent of those discharged were returned to HCH.

Unfortunately, this kind of news about a for-profit nursing business does not surprise me as a Philadelphia medical malpractice lawyer. I recently wrote about an article exposing exactly this kind of fraud in for-profit hospice care, and it's easy to see the parallels with for-profit nursing home care. With hospice care, the goal is to make patients comfortable at the end of life, but fraudulently included patients often aren't at the end of life. That means they may be inappropriately given powerful painkillers or other drugs, and that they and their families may suffer emotionally from believing they are near death. That belief may also lead patients to abandon future plans and squander the time they do have in expensive full-time care they don't need -- another form of Pennsylvania nursing home abuse. As a Philadelphia injury lawyer, I believe all of these injuries can and should be penalized when appropriate, including through a lawsuit.

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