October 16, 2013

Elder Justice is a Necessity in Pennsylvania


Picture for a moment the life you built, saved, and diligently worked for, being stripped away from you at a time when you are unable to fight for yourself. That is what is occurring to millions of older Americans every year. Statistics vary from one in ten older Americans a year being abused, approximately a little over 4 million, to almost 11 percent or 5.7 million. Elder abuse includes physical, emotional, and sexual abuse, as well as, self neglect, and financial exploitation. Often times these patterns of abuse are at the hand of a relative, loved one, or a trusted caregiver or institution. As was true for the actor Mikey Rooney an outspoken advocate of senior rights. On March 2, 2011, Mikey Rooney appeared before a special U.S. Senate committee considering legislation to curb elder abuse. Before the panel, then 90 year old Mikey Rooney claimed he had suffered elder abuse when he was denied basic necessities such as food and medicine, and was financially, verbally, emotionally, and psychologically, tormented at the hands of a stepson and his wife. As ominous as it may sound, everyone must protect themselves and their loved ones from people who prey on our older Americans.

According to the 2010 U.S. Census, the nation's older population is growing and is only projected to further expand as "baby boomers" begin to reach the age of older adults. Pennsylvania has the fourth largest population of older citizens comprising approximately 21.4 percent of the population, or about 2.7 million individuals over the age of 60, with another 2.4 percent over the age of 85. The Pennsylvania State Plan on Aging ("The Report"), is a report released every four years as dictated by federal and state law in order for the commonwealth to receive federal funding under the Older American Act of 1965. The Report estimates that a rapid growth in Pennsylvania's older adult population is slated to reach an epic high by 2030. At which time, another 22.2 percent of the state's population approximately 2.8 million people, who currently fall into the age bracket of 45 to 59 will become incorporated in the older population increase.

The impact of the recent economic recession has greatly affected the surge in reports of abuse, neglect, abandonment, and financial exploitations of Pennsylvania's older population. Individuals in need of older adult protective services have grown exponentially. In 2011-2012 nearly 18,000 adults in Pennsylvania were in need of older adult protective services, that is a 17 percent increase from the previous year. Much like we check on our elderly neighbors when a heat wave strikes, so to should we speak up if we see any signs of elder abuse. If you believe there was an instance of elder abuse please at your earliest convenience contact the nursing home experts and personal injury attorneys at Rosenbaum and Associates for a free consultation. According to the SeniorLAW Center, victims of elder abuse, neglect, and financial exploitation, have three times the risk of dying prematurely. Typically the signs and symptoms may include, bruises or broken bones, dramatic weight loss, confusion due to malnutrition, medications, or an acute illness. Changes in the older adults behavior such as being withdrawn, signing over their house to a relative, or withdrawing large sums of money from a saving account, are all suspect. The Department of Aging's elder abuse hotline 1 (800) 490-8505, is available 24 hours a day, 7 days a week, for any person who believes that an older adult is being abused, neglected, exploited, or abandoned.


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September 19, 2013

Courts and Not Arbitrators Have Jurisdiction Over Pennsylvania Nursing Home Lawsuit - Pisano v. Extendicare Homes, Inc.


I've written a lot here about the trouble with arbitration agreements in nursing home negligence lawsuits. Arbitration is a form of "private judging" that allows disputes to be resolved out of court. It's often touted as quicker and less expensive than going to court, and thus advantageous to both sides of the dispute. But for nursing home companies, arbitration is often the preferred solution because it allows them to hide allegations of serious abuse or neglect, away from public records. In some cases, arbitration companies have even been known to decide cases in a way that's most favorable to their customers--the nursing home companies, who send them the cases and sometimes pay all of the bill. That's why I was pleased to see Pisano v. Extendicare Homes, Inc., a Pennsylvania Superior Court case denying an attempt to take the dispute to arbitration.

Vincent Pisano was admitted to Belair Health and Rehabilitation Center in April of 2010. His daughter, Jamie Pisano, had his power of attorney at the time and executed an agreement saying any dispute would be resolved by mandatory binding arbitration. Some time later, Vincent Pisano died at the facility. His family alleges negligence by Extendicare (doing business as Belair) in a wrongful death lawsuit filed by son Michael Pisano, individually and as administrator of his father's estate. Jamie Pisano executed a disclaimer and renunciation in October of 2011, giving up all proceeds in a recovery for wrongful death, and is thus not a party to the case. In trial court, Extendicare objected to the court's jurisdiction, citing the arbitration agreement. The trial court refused to compel arbitration, however. The parties agree that the agreement is valid and binding, the court said, but the wrongful death action was outside its scope.

Extendicare appealed, but the Pennsylvania Superior Court affirmed. In Pennsylvania, wrongful death actions by the estate of the deceased are separate from survival actions by the deceased person's immediate family. In this case, the agreement in dispute is broad enough to cover tort claims as well as contract claims. In relevant part, it says the parties agree to arbitration of "all disputes arising out of or relating in any way to this Agreement or to the Resident's stay at the center [including] ...wrongful death." Thus, the case turns on whether a Pennsylvania wrongful death lawsuit is derived from Vincent Pisano's rights. The Superior Court ruled that it is not. Pennsylvania courts have consistently ruled that wrongful death and survival actions are two separate rights of action deriving from a single death, the court said, but not from the decedent's rights. Thus, because Extendicare's agreement is between it and Vincent Pisano, it does not bind his family, the court found.

This is good news for Pennsylvania families that suffered a wrongful death because of nursing home abuse or neglect. The Superior Court is not the highest court in Pennsylvania, but if its reasoning is adopted by higher courts, it will be settled law in our state that arbitration agreements don't bind family members who never signed them. And that's important, because as I mentioned, arbitration is often not friendly to families hurt by nursing home abuse in Pennsylvania. It takes away their right to settle disputes in open court, file appeals and more. If this case is appealed further, I will be interested to watch its progress.

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September 5, 2013

Pennsylvania Counties Increasingly Consider Selling Their Public Nursing Homes


Because I practice nursing home abuse law in Pennsylvania, I was interested to see that publicly owned nursing homes are rapidly dwindling in our state. According to the Pocono Record, Monroe County's government is considering selling its publicly owned Pleasant Valley Manor, in part because it's running at a loss. To the west, Franklin County is already in the process of selling its nursing home, Falling Spring Nursing and Rehabilitation Center. One Monroe County Commissioner, Charlie Garris, noted that the trend in Pennsylvania counties is increasingly toward selling county-owned homes. But residents of both counties expressed concerns about the quality of care in the homes as they transitioned from public, nonprofit ownership to private, for-profit ownership. The news comes on the heels of an announcement from the Catholic Archdiocese of Philadelphia that it will sell several nursing homes in greater Philadelphia.

In Monroe County, the commissioners are considering a sale because the home is losing money. Pleasant Valley Manor lost $940,000 in 2012 and had already lost the same amount in the first six months of 2013. Garris noted that a supplier of food to the home once withheld its deliveries until it got paid, suggesting that the home's administrators were behind on payment. The only commissioner to publicly oppose a sale is Suzanne McCool, who said the county has a moral obligation to take care of elderly and infirm residents. The article said "there's a fear" that a for-profit home might not take indigent residents.

In Franklin County, Commissioner Robert Ziobrowski said county-run homes are no longer needed for indigent Pennsylvanians, because Americans can now rely on Medicare and Medicaid as well as private insurance. They have chosen two finalists from among the 10 private companies that offered to buy Falling Spring. But according to the local newspaper, Franklin County residents are concerned that private ownership will result in a drop in quality of care.

I share that concern. In my experience pursuing nursing home neglect lawsuits in eastern Pennsylvania, there is genuine cause for concern when nonprofit homes are sold to for-profit companies. As I noted in my blog post about the Catholic Church's sale of homes, studies show that nonprofit homes do better on multiple measures of care, including staffing ratios, number of bedsores, citations from government regulators and more. Indeed, one study concluded that statistically, for-profit ownership leads to an additional 7,000 pressure sores a year. The difference may be attributed to things like attempting to get along with fewer employees or employees who are not well trained, both of which can lead to overwhelmed employees who cut corners or forget important tasks. Nursing home abuse is devastating and sometimes fatal; Pennsylvanians should think very carefully before doing anything that could lead to more of it.

Based in Philadelphia, Rosenbaum & Associates represents clients across eastern Pennsylvania who have suffered serious injuries from abuse or neglect at a nursing home.

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August 22, 2013

Residents of Catholic Philadelphia Nursing Homes Face Uncertain Future Due to Sale


As a Pennsylvania nursing home lawyer, I was interested to see reports that the Catholic Archdiocese of Philadelphia plans to sell six nursing homes in greater Philadelphia. According to the Philadelphia Daily News, the archdiocese is selling six nursing homes and one assisted-living facility in order to address financial problems. Three of the homes are in Philadelphia: Immaculate Mary Home, St. John Neumann Home and St. Monica Manor. St. Martha Manor and Villa St. Martha are in Chester County, St. Francis Country House is in Delaware County, and St. Mary Manor is in Montgomery County. The announcement comes after several years of financial problems for the archdiocese. The National Catholic Reporter said the homes ran a deficit of $1.4 million at the end of fiscal year 2012.

In all, 1,400 residents will be affected by the proposed sales, as well as more than 2,000 employees. The archbishop for Philadelphia, Charles Chaput, said it will be a condition of the sale that no residents will be evicted, and "every effort will be made" to retain employees. As a Philadelphia injury lawyer, I am concerned for these residents and employees, because a sale is likely to mean a change to for-profit status. Studies show that nonprofit nursing homes generally deliver higher-quality care than for-profit homes, as measured by factors like citations by government regulators, use of restraints, number of bedsores the residents sustain, and staffing ratios. A 2009 meta-study published in the British Medical Journal drew that conclusion, echoing 2002 and 1991 studies. Among other things, it said, there are 7,000 pressure sores per year that can be attributed to for-profit care, statistically speaking.

It's not a given that for-profit status inevitably leads to Pennsylvania nursing home abuse, but if I had a loved one in one of these Catholic facilities, I would watch the sales closely. In my experience as a Philadelphia medical malpractice lawyer, for-profit status can lead to neglect when profit-motivated owners choose to understaff their homes or hire cheaper, unskilled workers. Overworked employees may skip or simply forget needed care, leading to problems like bedsores, missed medications or lack of attention to basic nutrition and hydration. In more serious cases, nursing home employees have been known to steal residents' drugs, physically abuse them or overuse psychiatric drugs as "chemical restraints" against unruly dementia patients. All of these are forms of abuse and neglect in nursing homes, which no Philadelphia family should have to experience.

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August 8, 2013

Oklahoma Supreme Court Resurrects Nursing Home Lawsuit By Voiding Affidavit Law - Douglas v. Cox Retirement Properties


As a Pennsylvania nursing home lawyer, I frequently end up pursuing medical malpractice claims because Pennsylvania nursing home abuse often takes the form of bad medical decisions. For example, over-medicating patients, failing to timely treat a clear illness or allowing bedsores to develop are all medical mistakes that are unfortunately common at nursing homes. But because medical malpractice is a highly politicized area of the law, nursing home patients and their families often face extra hurdles when they want to file a medical malpractice claim--such as Pennsylvania's affidavit of merit requirement. Oklahoma, too, has passed such a requirement, but that state's high court ruled that the requirement was part of an unconstitutional "logrolling" bill in Douglas v. Cox Retirement Properties, Inc..

Carol Douglas sued Cox in her capacity as the administrator for the estate of her father, Richard Lee Douglas. Richard Douglas was admitted for extended rehabilitative care but discharged 21 days later; he died less than a month after his discharge. The opinion does not detail the estate's contentions except to say that it alleges negligent care and treatment. But after the suit was filed, Cox moved to dismiss because Douglas had not complied with a 2009 law requiring a written expert opinion stating that the case is meritorious. Douglas replied that the 2009 law was unconstitutional because it was enacted as a multi-subject "logrolling" bill in violation of the single-subject rule in Oklahoma's constitution. The trial court granted the motion to dismiss but certified that order for immediate review, and the Oklahoma Supreme Court took it up.

The Oklahoma state constitution provides, in relevant part, that "every act of the Legislature shall embrace but one subject." This is intended in part to prevent "logrolling," the court said, which is bundling desirable provisions with unrelated, undesirable ones in order to make a law "veto proof" or certain to be vetoed. The court found that the 2009 law that contained the affidavit requirement, the Comprehensive Lawsuit Reform Act, contains 90 sections that are not closely related by theme or purpose. One adopts federal procedure code to control state lawsuits; another helps collects Medicaid refunds; several other provisions limit liability for specific kinds of businesses. Passing these provisions under the umbrella of lawsuit reform is not adequate to bring them into compliance with the single-subject rule, the high court said. A legislator considering the law would be required to vote for all of them in order to pass any. And the court declined to sever the provisions it found unconstitutional, arguing that this would make it the policy maker inappropriately. It revived the case and remanded to trial court.

This opinion from Oklahoma's Supreme Court followed a related opinion in which the affidavit requirement was struck down for separate reasons. In Wall v. Marouk, the high court found that the affidavit requirement was an unconstitutional "special law" that imposed different rights or duties on members of a class who are otherwise on the same footing. It also found that the requirement created a financial barrier to justice. As a Philadelphia medical malpractice lawyer, I've been highly critical of affidavit requirements in our state because of their financial cost--as well as the time problem they can create. As a Philadelphia injury lawyer, I don't believe we should impose more barriers to justice on people who are already suffering from serious physical and financial problems because of a nursing home's mistake.

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July 24, 2013

Federal Report Finds 'Huge Number' of Younger People Unnecessarily in Nursing Homes


As a Pennsylvania nursing home lawyer, I was interested to see a report criticizing the states for overusing nursing homes for disabled but younger people. According to McKnight's Long-Term Care News, a report from the Senate Health, Education, Labor and Pensions Committee found that states are not living up to a 14-year-old obligation to transition working-age and younger people out of nursing homes. The obligation was created by a 1999 court ruling in Olmstead v. L.C., which was based on the states' obligation to integrate disabled people into society under the Americans With Disabilities Act. Fourteen years later, the Senate HELP Committee investigation found that almost a quarter of a million of working-age disabled adults are in nursing homes. In fact, the committee's press release said, the number of institutionalized disabled adults is actually growing. It called for actions that would provide community care for more disabled adults.

The Olmstead ruling found that the ability to live within the community is a protected civil right for disabled people under the ADA. Thus, states were asked to transition non-elderly disabled people out of nursing homes if they were able to live independently with some help. But according to the committee report, states are reporting very little progress. Of all 50 states, the report said, only 12 are spending more than half of their Medicare funds on community-based care rather than institutional care. As the committee's press release notes, this is especially disappointing because institutionalization is more expensive than community-based care. It's also less popular among the patients themselves, the press release said. The federal report came less than a week before the federal government sued the state of Florida for "warehousing" disabled children in nursing homes unnecessarily.

In my experience as a Philadelphia injury lawyer, this problem is not limited to working-age adults or children. Frequently, disabled elderly people are able to live at home with some help, but the systems aren't in place to make that possible. This forces them to leave home, often against their will, and accept far more expensive institutional care under Medicaid. That's especially disturbing because nursing homes are not necessarily safer than living at home. Away from loved ones or neighbors who know them, and in the care of facilities that stretch their staffs too thin, patients can become victims of Pennsylvania nursing home abuse. And the abuse can lead to even more serious health problems, including expensive hospitalization or chronic problems that could truly require an institution. As a Philadelphia medical malpractice lawyer, I think Pennsylvania's disabled people, seniors or not, deserve better.

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July 9, 2013

Texas Supreme Court Rules Expert Report Required to File Any Medically Related Tort - PM Management-Trinity NC v. Kumets


I've written here before as a Philadelphia medical malpractice lawyer about the onerous requirements in many states for filing a medical malpractice claim. Medical malpractice is a common assertion in cases of Pennsylvania nursing home abuse, but it's so politicized that it's much more difficult to file a medical negligence claim than it is to file a general negligence claim. Among other things, plaintiffs in many states, including Pennsylvania, must file an expert's affidavit with the lawsuit to show that at least one expert believes the case has merit. A missing or inadequate affidavit is a reason for the dismissal of many medical malpractice lawsuits, and that was the problem in PM Management-Trinity NC v. Kumets, a Texas Supreme Court case that found an affidavit is needed even for a non-malpractice claim based on the same facts as the malpractice claim.

Yevgenia Kumets was admitted to a nursing home in Texas to recover from a stroke. While she was there, she suffered a second stroke. Some of her family believed that poor care she suffered at the home was responsible for the second stroke, though the opinion doesn't detail their complaints. However, she was discharged from the home after the family complained about her treatment, leading the family to believe she was retaliated against. The Kumets family sued with claims for medical negligence, ordinary and gross negligence, negligence with employees, breach of fiduciary duty and contract, fraudulent billing, violations of the state Deceptive Trade Practices Act and retaliation, as authorized by a statute. They filed an expert report, but the court ruled it was deficient and an amended report didn't cure the defects. The court dismissed all their claims except retaliation.

The two sides cross-appealed, arguing that various claims were or were not health care liability claims subject to the expert affidavit requirement. A divided Court of Appeals affirmed the ruling, saying a health care liability claim must involve "injury or death of the claimant," and the retaliation claim asserted only economic loss.

The Texas Supreme Court reversed that decision, siding with the dissent in the Court of Appeals. The high court had previously held that any claim based on the same underlying facts as a health care liability claim is also a health care liability claim, and thus subject to the expert report requirement. As the court had noted in a prior case, 2010'sYamada v. Friend, Texas law does not permit plaintiffs to circumvent the expert report requirement through "artful pleading" or splitting claims. It noted that it was not holding that all retaliation or discrimination claims are health care liability claims, or even that the breach of fiduciary duty claim brought by the Kumetes is such a claim. But the Kumetses did not appeal the dismissal of that claim, the court said. It reversed the Court of Appeals and remanded with orders to dismiss the retaliation claim.

As a Pennsylvania nursing home lawyer, I think this ruling will not do any favors to Texas patients who have suffered serious injuries from abuse or neglect in a nursing home. The expert affidavit requirement is expensive and time-consuming at a time when victims are already facing a deadline and, often, high medical bills and relocation costs related to the underlying abuse. It also inappropriately shifts extra burdens to the plaintiff, because no expensive expert is required to certify that the defense's arguments have merit. Applying it to claims that are not about medical malpractice makes it harder to recover fair compensation--and easier for nursing homes to continue providing shoddy care. As a Philadelphia injury lawyer, I don't believe it's good for anyone to protect bad nursing homes from consequences.

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June 22, 2013

Chronic Understaffing in Nursing Facilities: Punitive Damages


Camay Williams brought a wrongful death and survival action against Willow Terrace and Albert Einstein Health Network on behalf o f Marcel Mackey, claiming that various healthcare workers were negligent in their care and treatment of Marcel.

Marcel was a very sickly man when he entered the care of these hospital providers in 2007 complaining of thirst and incontinence. He had a history of two above the knee amputations, diabetes, multiple strokes, dementia and various other maladies. While he was at the hospital he developed a pressure ulcer on his sacrum. When he was transferred to a long-term care hospital it was noted that there was an infection in the ulcer. Marcel was eventually transferred to Willow Terrace and had several brief admissions to Albert Einstein Medical Center (AEMC). The admission to AEMC noted dehydration, malnutrition, pneumonia, worsening of the ulcer, poor hygiene, and infections.

Marcel passed away a little over a year after his initial admission. His death certificate lists, among other things, severe end stage ulcer. Camay argued that substandard care, staffing, assessments, oversight, and administration, led to Marcel's death.

The jury awarded Camay punitive damages in the amount of $500,000 finding that the facilities' conduct was willful or wanton, or exhibited reckless indifference to the rights of the deceased. Punitive damages are meant to punish the defendant for outrageous conduct and serve as a deterrent to the defendant and others who may engage in similar conduct. The defendants in this case appealed the punitive damage award stating that the evidence presented fell short of the minimum required to warrant consideration of punitive damages.

Camay called several employees of Willow Terrance and AEMC to testify during the trial. The employees testified that Marcel was supposed to be repositioned every two hours and note it in his chart or his ulcer wound would worsen. There were portions of his chart, which were silent on repositioning, for example in the month of August there were 33 eight-hour shifts with no mention of repositioning. Multiple employees complained of chronic understaffing and testified that even with all staff present there were not enough employees to reposition all the patients every two hours. One nurse testified that Marcel's ulcer was the size of a dinner plate and infected with a foul smell and puss drainage. Another nurse testified that when she changed the wound dressings it was clear that they had not been changed every shift as required. Further, nurses testified that incomplete chart entries revealed a lack of catheter care, showers and skin assessments. Willow Terrace also received numerous deficiencies from state inspectors.

Camay also called an expert who testified that the facilities were operating "woefully below the standard of care" and that they played a substantial role in Marcel's death. Another expert testified that the failure to reposition played a large role in the deterioration of the ulcer and ultimately in his death.

The reviewing court upheld the lower court's punitive damage award finding that the facilities acted in an outrageous fashion, in reckless disregard to the rights of their patients and created an unreasonable risk of physical harm to Marcel. The court relied heavily on the record of chronic understaffing and its resultant inability to care for patients.

Williams v. Willow Terrace, PICS Case No. 13-1208 (C.P. Philadelphia April 8, 2013) Jackson, J.

June 20, 2013

Ohio Attorney General Shuts Down Nursing Home After Hidden Camera Reveals Neglect


When Pennsylvania nursing home abuse takes place, it often takes place behind closed doors. If the victim is a patient with disabilities that prevent clear communication, it may be some time before the abuse is uncovered. That's why I was interested, as a Philadelphia injury lawyer, to see news out of Ohio that a long-term hidden camera investigation of one nursing home has led to revocation of the home's license and possible criminal charges. The Columbus Dispatch reported that state officials recorded "shocking and disturbing" instances of abuse and neglect with hidden cameras at Autumn Health Care Nursing in Zanesville, Ohio. The local NBC affiliate added that the cameras revealed multiple kinds of neglect and falsified documents. The home has 60 days to shut down; the state is helping patients move to new facilities.

NBC reported that patients' families' complaints originally motivated the investigation. The state attorney general wouldn't say how long the cameras were in place, but state regulators have been monitoring the nursing home for at least four years, in response to complaints. The cameras, installed with permission from patients and families, recorded neglect of at least one patient's medical, nutritional and personal needs. Employees were accused of falsifying documents to make it look as if those needs had been met, the article said. Once the state health department had these results, it performed an inspection and found violations in patient treatment and care; infection control; food and nutrition; and resident rights. Families were upset that their loved ones were not given adequate care and that they had to move.

The state attorney general said criminal charges could be filed in the case, including possible charges of Medicare fraud, patient abuse, theft and falsification. The articles don't say what exactly happened to these patients, and perhaps it's for the best that the patients themselves and their families will have a chance to decide whether to go public. But as a Philadelphia medical malpractice lawyer, I suspect we'll receive more details if any of the families involve decide to file lawsuits. Lawsuits are a real possibility because patients and their families often end up with steep medical bills from this kind of neglect. Malnutrition, dehydration and pressure sores can be serious threats to an immune-compromised elderly person, requiring hospitalization. The obligation to change facilities is also unlikely to be cheap. All of these costs are recoverable in Pennsylvania with a Pennsylvania nursing home abuse lawyer's help.

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June 14, 2013

Is the Document my Elderly Loved One Signed Really Binding?


Unfortunately, there are people who willingly take advantage of the elderly people in our lives. You may discover that an elderly member of your family has signed a document which appears to eliminate the possibility of bringing a claim for injuries they suffered. That was the case in Philadelphia, where the executor of the estate of Richard MacPherson sought to bring an action for the abuse and neglect Richard suffered while a resident at several hospitals and nursing home facilities.

The defendant health care facilities sought to introduce an arbitration agreement signed by Richard that would have forced his executor into arbitration and set the terms of the arbitration instead of being allowed to file a complaint in Common Pleas Court. The agreement Richard had signed required, among other things, that whoever lose in arbitration pay attorneys' fees and costs, arbitration costs be divided equally, there be no jury trial and that there be a very limited right to appeal the arbitration decision.

The defendants relied on a case called Williams v. Penn Center Rehabilitation and Care, when they claimed that the executor could not file a case and must comply with the terms of the arbitration agreement. There, Mr. Williams testified during a deposition and stated that he understood the process and knew what he was signing when he signed it. In Richard's case, however, he had lost more than twenty pounds in a matter of two months. He was incontinent and entirely reliant on facility staff. His body was covered in blisters, scar wounds, necrotic tissue and lesions. Richard also suffered from various medical maladies including chronic obstructive pulmonary disease, congestive heart failure, depression, Hepatitis C, diabetes and substance abuse. Richard had passed away before this case was filed and therefore could not testify at a deposition regarding his understanding of the arbitration agreement he had signed. Further, defendants' representative who had presented the paperwork to him had no recollection of her conversation with Richard.

Agreements are found to be "procedurally unconscionable" and therefore void when there is a lack of meaningful choice by the weaker party in accepting the terms of the agreement. In finding that this agreement was indeed unconscionable and void the Court here relied on the fact that Richard had no ability to negotiate the terms of the agreement. He signed the agreement on the same day it was presented to him and would not have had an opportunity to review it or discuss it with an attorney or others.

Therefore, due to factors such as the degree of Richard's illness, the fact that the agreement strongly favored the defendants, the inability to obtain testimony from Richard regarding his understanding of the agreement and Richard's inability to negotiate the terms of the contract because of how quickly it was presented and signed, the Court found that the agreement was void and allowed the executor to move forward with his case. Depending on the circumstances surrounding an elderly person's signing of a document it might not actually be binding.

June 5, 2013

Court Rejects Bid to Apply Third Party Arbitration Agreement to Nursing Home Lawsuit - GGNSC Omaha Oak Grove v. Payich


As a Pennsylvania nursing home lawyer, I'm very interested in the recent series of appeals court cases about whether a binding arbitration contract is valid. Very often, these cases go to trial because someone other than the patient, or his or her health care agent, signed the agreement. It's not usually clear that the third party who signed the agreement had any authority to represent the patient's legal interests, and when the patient, or his or her estate, later sues the nursing home, a court has to decide the issue. That was the case in GGNSC Omaha Oak Grove LLC v. Payich, in which the son of Nada Payich sued Golden Living Center of Sorensen. Ivan Payich signed the arbitration agreement when his mother was admitted, but Nada Payich had not been declared incompetent to manage her own affairs. A district court declined to compel arbitration, and the Eighth Circuit agreed.

Nada Payich executed a power of attorney on behalf of her son, Ivan Payich, on Sept. 3, 2009. The next day, Nada Payich was admitted to the Golden Living Center of Sorenson. No doctor had declared her incompetent. Nonetheless, Ivan signed the admission agreement on the line for Nada's legal representative, and also signed an arbitration agreement, adding "son" after his signature. Unfortunately, Nada Payich died after her admission to Sorenson. The appeals court's opinion doesn't go into the details of how Sorenson allegedly neglected or abused her, but Ivan Payich's later lawsuit alleges negligent care by the home that led to physical and mental injuries. After removing the case to federal court, Sorenson moved to compel arbitration, arguing that Ivan signed on Nada's behalf and was therefore bound by the arbitration agreement, or that Nada was a third-party beneficiary to the agreement between Ivan and Sorenson. The district court disagreed.

The Eighth U.S. Circuit Court of Appeal upheld that decision, finding no valid agreement applied to Ivan's lawsuit. On appeal, Sorenson argued only that Nada was a third-party beneficiary to an arbitration agreement between Ivan and Sorenson. Because Nada accepted the benefits of the agreement--care by Sorenson--her estate should be bound by them, the nursing home argued. The Eighth disagreed, saying there was no contract between Sorenson and Ivan, as required to find that someone is a third-party beneficiary. The arbitration agreement expressly names Nada as the contracting party, the court noted. It only provides signature lines for the patient herself or for her legal representative if she is incompetent. Though Ivan's choice to put "(son)" after his signature suggests that he intended to sign as Nada's representative, Sorenson abandoned the argument that he was acting as her representative. Thus, the Eighth upheld the ruling declining to compel arbitration.

As a Philadelphia injury lawyer, I approve. Arbitration agreements are not necessarily fatal to a Pennsylvania nursing home abuse case, but they're not usually helpful. Arbitration shields the proceedings from public view, which keeps the public from learning about the details of abuse or neglect allegations. To make matters worse, some arbitrators have been accused of essentially deciding cases the way the nursing home--the party that brings in their paying business--prefers. This stacks the deck against the plaintiff--the injured patient and his or her family--and prevents them from warning the public. As a Philadelphia medical malpractice lawyer, I believe everyone has a right to their day in a public and publicly accountable court.

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May 22, 2013

Carbon County Nursing Home Patient Charged With Homicide in Another Patient's Death


In an unusual situation, an eastern Pennsylvania nursing home patient is being charged with a homicide in the death of another patient. As a Pennsylvania nursing home lawyer, I was interested to see that Carl Smith was arraigned on charges of involuntary manslaughter for pushing Margaret Lechleitner, 85. Both were residents of the dementia ward at Weatherwood Nursing Home in Weatherly, a Carbon County community between Allentown and Scranton. Lechleitner died after she fell to the floor, hit her head and suffered a subdural hematoma, a kind of blood blister. The death was ruled a homicide by the Luzerne County coroner--but the ruling only means that it was caused by another person, not that it was a criminal act. According to WNEP, medical experts and a judge will decide whether the case should go to trial.

The incident leading to Lechleitner's death took place April 20. Smith told authorities that Lechleitner pushed him first and he pushed back, though police say there's no evidence that she pushed him. After Lechleitner hit her head, she was taken to the Hazleton General Hospital just over the county line, where she died the next day. Police said they had to balance competing interests in the case, because Smith has dementia as well. An officer said the police wanted to make sure justice was served for Lechleitner's family, but also that everyone around Smith is safe and that Smith continues to get treatment. An Alzheimer's Association of Pennsylvania spokeswoman told WNEP that she has never seen an arrest, or indeed any situation where one dementia patient caused the death of another.

Interestingly, no one in the articles commented on the oversight responsibilities of the nursing home. Of course, there may have been nothing that nursing home attendants could do, if the incident happened quickly. But if Smith and Lechleitner were left together without supervision, the home may be vulnerable to a Pennsylvania nursing home abuse lawsuit alleging that it was negligent. Dementia patients end up in nursing homes because they need the kind of 24-hour supervision that families often can't provide. In fact, in nursing homes, they are known for having difficult behavior. Nursing home staffs are supposed to keep them out of trouble, but as a Philadelphia medical malpractice lawyer, I know understaffed, stretched-thin homes let things slide sometimes--and patients can die or suffer injuries as a result.

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May 6, 2013

Task Force Formed to Study Senior Abuse and Neglect


The Administrative Office of Pennsylvania Courts (AOPC ) announced the establishment of the Elder Law Task Force formed by the Pennsylvania Supreme Court to investigate the increasing troubles regarding abuse, neglect, guardianship and the access senior citizens have to justice. Justice Debra Todd is chairing the task force, which will recommend possible legislation, amended laws, training and best practices. The task force has one year to finalize their study.

Supreme Court Chief Justice Ronald Castille said that Pennsylvania's older population has significantly increased and as it grows, it is straining the ability of courts to provide services to protect elderly Pennsylvanians. He further stated that the requirements of the elderly will last for years, especially with regard to elder abuse, guardianships and their access to legal recourse. He said that it is time to guarantee that older Pennsylvania citizens will not suffer abuse or the loss of their savings.

Justice Todd has said that our society focuses on child abuse, but rarely addresses the abuse of the elderly. The force is hoping to put new laws into effect before the elderly population swells even more because with more elderly citizens comes more elderly abuse. Nowadays the number of people in the United States who are over 65 years old is greater numerically and proportionately than it has ever been, according to the U.S. Census Bureau. Pennsylvania is only exceeded by three other states in terms of elderly population density.

The AOPC gave three instances of elder abuse that would be addressed by the task force. One example was a 64-year-old man from Lancaster who relied on his personal care aide to fix his meals, bathe and dress him because he only had one leg. The police said that the aide neglected the man so severely that the amputee developed skin ulcers that reached the entire way to the man's bone. Due to the extensive wounds, he lost his other leg.

Another example dealt with a Bucks County woman enlisted a neighbor to handle her personal finances since she was entering a nursing home. The neighbor squandered her savings on casino trips, jewelry, posh vacations and golf outings rather than paying her bills. The man has been charged with five felony theft charges.

The National Institute of Justice recently funded a study that reported that in 2009 eleven percent of folks over the age of 60 were the victims of senior abuse. Justice Todd said that at least the two previous cases had been reported. Todd said the U.S. Administration of Aging's National Center on Elder Abuse reported recently that for every one reported case, it's estimated that there are five unreported cases. Justice Todd called that statistic shameful and insisted that Pennsylvania can do a better job protecting seniors from abuse and neglect.

May 2, 2013

Alzheimer's Patients in Nursing Homes May Suffer Prolonged Demise


A disturbing trend has surfaced recently, according to Dr. Joan Teno from Brown University. It seems that 20 percent of nursing home patients on Medicare who have advanced Alzheimer's dementia were dispatched to hospitals and nursing homes during their last few months, which effectively ran up their bill to the taxpayers. Not only are their charges increased, their demise is prolonged via expensive intensive care and tube feeding.

When an elderly patient comes down with pneumonia, infections or problems swallowing, assisted living centers and nursing homes might believe hospital care is necessary. However, money may be the chief motivator for the transfer since Medicare pays 300 percent more than the standard rate per day to treat patients who have recently been hospitalized.

Teno said she wonders if the care is necessary and if the system is doing the best for the patient. She said, "A lot of this care just feels like in and out, in and out." Teno was one of several researchers from Harvard and Dartmouth who co-authored a study that was published in the New England Journal of Medicine.

Out of some 475,000 patients included in the study, nearly 20 percent were placed in hospitals for dubious reasons. While there was no direct evidence that money was the motivating factor, researchers said that the high variation from state-to-state suggested that money might be the deciding factor.

For example, transfers from Alaska and Alabama were 2 percent as compared to 37 percent. Twenty-six percent of Texas residents had numerous urinary infections, dehydration or pneumonia. These conditions are usually handled within a nursing home. In Grand Junction, Colorado, that rate is only one percent. Records from 2000 to 2007 were used to find what were referred to as burdensome transitions of care, such as moving patients numerous times during their last ninety days of life, moving patients so they went to a new nursing home after hospitalization and moving patient during their last three days of life,

Normally, Medicaid pays $175 per day for long term care, but the rate triples when a patient returns from a stay in the hospital and requires skilled nursing care. This provides nursing homes that operate on a margin to significantly add to their annual revenue, said Teno.

Studies showed that patients with a questionable transfer were more likely to be enrolled in a hospice within three days before their death, to have bedsores, to spend time in intensive care during their last 30 days of life or to have a feeding tube inserted. Black and Hispanic patients suffered more dubious transfers than white patients, as were people without living wills or advance directives.

This research is crucial because over 1.6 million old folks reside in nursing homes, and almost 25 percent were admitted to a hospital within a month of being admitted to a nursing home because the home fear legal action if they don't treat an ill patient.

April 29, 2013

Recognizing Nursing Home Abuse


Abuse in nursing homes is a hot button topic. When our elderly relatives and friends reach a point in their lives when they require assisted living or hospitalization, we expect them to have the best care available. However, nursing home residents are routinely mistreated by the people we entrust to take care of them. Frequently, patients will not mention abuse they may be suffering, so it's important for you to know what constitutes nursing home abuse and how to identify it. Some reports say that for every case of nursing home abuse that's reported, there are five cases that are not reported.

Nursing home abuse come sin three forms: neglect, emotional and physical. General, easy-to-spot signs of these types of abuse include:

• Unexplained injuries like bruises, cuts and sores.
• Infections, rashes, rapid weight loss, dehydration and unsanitary conditions.
• Unusual behavior patterns, depression, irritation and isolation.

Neglect

Neglect is the deprivation of care for a resident of a nursing home. Some examples of neglect are failure to feed, refusing to medicate, refusing to aid with a resident's personal hygiene, failure to provide necessary medical care or failure to protect the resident from hazardous conditions like a wet floor or slippery sidewalk. Noticeable symptoms would be lice, bad breath or dirty bedding.

Emotional Abuse

Emotional abuse is harder to detect than physical abuse or neglect, however, emotional abuse can be as harmful to a resident as any type of abuse. Examples of emotional abuse are humiliation, verbal threats or insulting language. Basically, any behavior that causes the resident fear or emotional pain is a form of emotional abuse. Symptoms that a resident has been emotionally abused include:

• Withdrawal from social settings.
• Refusal to speak or answer questions
• Agitation or extreme depression
• Compulsive behavior like thumb sucking, rocking and mumbling

Physical Abuse

Physical abuse is the easiest type of nursing home abuse to see. Examples of physical abuse are rape, failure to feed a resident, striking a resident, too much physical restraint or improperly medicating the resident. There are numerous symptoms of physical abuse.

• Ripped clothing
• Broken eyeglasses
• Bruises
• Cuts
• Burns

Rape is a heinous form of physical abuse. Sexual abuse includes inappropriate touching, rape, forcing a resident to pose for pornographic photos or videos, or exposing a resident to pornographic material. Symptoms of sexual abuse include bruises in the genital area, torn or bloodied underwear, bleeding from the vagina or anus, or the unexplainable occurrence of sexually transmitted diseases. Beware of caregivers who insist on overseeing a resident's time with loves ones. They could be making sure the resident doesn't report them for abuse.

Nursing home abuse is the result of an overworked or an under-trained, underpaid staff. Poor vetting of employees and inadequate personnel can also cause nursing home abuse.

If you suspect abuse, talk to the nurses and doctors at the facility. Try to vary your visitation schedule. If you see symptoms of nursing home abuse, file a report.