February 7, 2013

West Virginia High Court Finds Arbitration Clause Signed by Health Care Surrogate Unenforceable - State ex rel, AMFM, LLC v. Circuit Court


As a Pennsylvania nursing home lawyer, I was interested to see a decision from neighboring West Virginia voiding an arbitration contract signed by the patient's health care surrogate. In State ex re. AMFM, LLC v. Circuit Court, Nancy Belcher was the designated health care surrogate of Beulah Wyatt. Wyatt died after 10 months in the McDowell Nursing and Rehabilitation Center, and Lelia Baker sued the home for negligence she said contributed to Wyatt's death. Belcher signed a contract including an arbitration agreement when Wyatt entered the home, and McDowell moved to enforce the arbitration agreement in Kanawha County court. But that court found that Belcher, as a health care surrogate, had no authority to waive Wyatt's right to a jury trial, and the West Virginia Supreme Court agreed.

Wyatt's doctor determined in September of 2009 that Wyatt was not capable of making her own health decisions, so the doctor selected Belcher, Wyatt's daughter, as a health care surrogate. A few days later, Wyatt was admitted to McDowell, a process that required Belcher to sign many documents. Among them was an agreement to litigate any disputes solely through binding arbitration. Wyatt stayed at the home 10 months, during which time Baker--another of her daughters and the representative of her estate--alleges that she developed malnutrition, dehydration, bedsores, infections and other injuries Baker believes led to Wyatt's death. Baker sued in December of 2011, and McDowell moved to dismiss and enforce the arbitration agreement. The circuit court denied this motion, concluding that Belcher had authority to make medical decisions, but that signing the arbitration agreement was not such a decision. It also rejected an apparent authority argument, saying a later power of attorney assignment, was suspect given Wyatt's diminished capacity.

McDowell appealed to the West Virginia Supreme Court, requesting a writ of prohibition stopping enforcement of this judgment. The high court investigated whether a valid arbitration agreement exists, and concluded that it does not. Health care surrogacy was created by the state legislature as a process for authorizing health care decisions for incapacitated adults. The law defines health care decisions as a decision to give, withhold or withdraw informed consent to health care. Belcher herself signed a form accepting the authority to make "medical decisions" for Wyatt. Nowhere is the authority extended to legal rights. Thus, the high court said, it's clear that a health care surrogate has no authority to sign an arbitration form--particularly since this one was designated as optional and thus not a prerequisite to receiving health care. Thus, the high court declined to stop enforcement.

As a Philadelphia injury lawyer, I'm pleased to see this ruling. The opinion itself notes that its decision is in line with many other jurisdictions that have considered the issue of a health care surrogate, or a medical power of attorney, signing an arbitration agreement. People with full power of attorney may have the capacity to waive jury trial rights, but Belcher was not such a person. This is particularly important because entering a nursing home is often done when the patient herself is not competent to sign, and the family members may not fully understand the issues, even if they do have the power to sign. As a Philadelphia medical malpractice lawyer, it's my experience that people who lack capacity are often those most vulnerable to Pennsylvania nursing home abuse, since they have a limited capacity to defend themselves or even notify loved ones about abuse.

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January 24, 2013

Eastern Pennsylvania Nursing Home Resident Sexually Assaulted by Fellow Resident


As a Pennsylvania nursing home attorney, I was surprised and disappointed to see an article about sexual assault at a Lancaster County nursing home. According to Lancaster Online, a man at Maple Farm Nursing Center in Akron, Penn., is in county jail after admitting to sexually assaulting a female Alzheimer's patient at the facility. Glenn Hershey of Akron is charged with involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault and sexual assault in connection with the incident that took place early on Jan. 20. He has been discharged from the nursing home and will not be permitted to return, the home's executive director said.

Nursing home staff checked on the victim, an 86-year-old Alzheimer's and dementia patient, around 4:50 a.m. Sunday and found her nude from the waist down and complaining of pain in her abdomen and genitals. Earlier that night, staff had seen Hershey leaving the victim's room and asked if she'd had a visitor, but she said she had not. Court records show that the nursing home staff was aware that Hershey is a sex offender convicted in 1993 for sexual assault of a professional escort. He had called the escort and offered her money for sex, but when she discovered that he didn't have the money, he assaulted her anyway. After Sunday's assault, Hershey admitted to sexual contact with another female resident at Maple Farm. The home declined to provide further details, citing privacy concerns.

Because Maple Farms staff knew about Hershey's past history, many residents' families are probably questioning whether staff did an adequate job of protecting other residents from him. In fact, some may be wondering whether it was appropriate to admit Hershey to the home at all. Dementia patients like the victim need extra protection because their disease robs them of the ability to fully take care of themselves. If staff members knew about the potential for a rape and didn't take adequate steps to protect residents, they may be guilty of neglect, which is a form of Pennsylvania nursing home abuse. As a Philadelphia injury lawyer, I wouldn't be at all surprised to see a lawsuit from the victim's family, and possibly action from other families as well.

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January 8, 2013

Appeals Court Rules Jury Instructions Proper in Death of Nursing Home Patient - Freudeman v. Landing of Canton


As a Pennsylvania nursing home lawyer, I know that families seeking justice and compensation through a lawsuit have a hard road ahead. Part of that process is proving that a death or serious injury took place because of the nursing home's negligence -- but when the death took place without a witness, this may be very hard to prove. In Freudeman v. Landing of Canton, Dennis Freudeman alleged that his mother, Dorothy Freudeman, was permanently brain-injured when a staff member at her nursing home gave her anti diabetic medication by accident. Dorothy Freudeman spent 15 months semicomatose after the mistaken medicine caused hypoglycemia, and eventually died. The Sixth U.S. Circuit Court of Appeals upheld a res ipsa loquitur jury instruction given because Freudeman couldn't prove how she got the medication.

Dorothy Freudeman was a resident at the eastern Ohio nursing home The Landing of Canton from 2001 to 2007, when she was 80. She suffered from Parkinson's disease, detention and the effects of a 2001 stroke, but no history of diabetes or hypoglycemia. She was able to walk, groom herself, use the restroom and feed herself before July 5, 2007. On that day, a Landing employee found her in an unresponsive state. At the hospital, she was diagnosed with very low blood sugar causing brain dysfunction. Doctors suspected she'd mistakenly been given anti-diabetic medication and ordered a test, but it was never performed. She was semi-comatose from that day until she died in October of 2008. Her son sued Landing, alleging she was given anti-diabetic medication, and presented evidence that Landing was routinely negligent in handling medicine. The court gave the jury a res ipsa loquitur instruction over Landing's objection, and the jury ultimately awarded more than $2 million to the family.

Landing appealed both the res ipsa loquitur instruction and the high punitive damages award. Most plaintiffs must be able to cite specific actions by the defendant to prove negligence, but a res ipsa loquitur instruction permits the jury to infer neglect from circumstantial evidence. Furthermore, the Sixth Circuit said, the jury instructions were structured so that the jury had to find that the injury was caused by anti-diabetic medication before it could apply res ipsa. Because it did so find, the court said, Landing's arguments that the injury's cause was disputed or could have come from another source are without merit. It also rejected an argument that the cause of the injury was not under Landing's exclusive control, noting that Landing controlled or should have controlled all medications in the facility. And, the Sixth said, this is an appropriate case for res ipsa loquitur because the plaintiffs were unable to ascertain the cause of Freudeman's injury. However, the appeals court did reduce the punitive damages award, finding that while punitives were appropriate, Ohio law has a damages cap that limits it to twice what the estate was awarded -- not the estate and each of the decedent's children.

As a Philadelphia injury lawyer, I'm always disappointed to see a jury's choices disregarded because of an arbitrary damages cap. A damages cap is much beloved by nursing homes and other potential defendants because it takes away the power of a jury to hand down the penalty it feels is appropriate. Regardless of the circumstances, the jury may not "send a message" any higher than the arbitrary number picked by the state legislature. However, the decision on the jury instructions is pleasing. When someone dies because of Pennsylvania nursing home abuse, that person may die in the care of the nursing home responsible for the death. That makes it very hard to independently verify what happened, since the only potential witness is adverse to the claim. As a Philadelphia medical malpractice lawyer, I appreciate that this jury instruction is available when the circumstances make presenting a fuller body of evidence impossible.

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December 18, 2012

Nursing Home Workers Caught on Camera Manhandling and Taunting Disabled Patient


As a Pennsylvania nursing home lawyer, I was disappointed to see another case of a hidden camera turning up serious Pennsylvania nursing home abuse. NBC10 Philadelphia reported on an abuse case that was uncovered at a nursing home in Bucks County. Two former employees at the Arbors at Buck Run were caught on camera dumping a wheelchair-bound woman onto a bed, singing and yelling directly into her face. Regina Battles, 20, and Irene Rodriguez, 22, have since been fired and are in county jail on charges of neglect of a care-dependent person, reckless endangerment, harassment and assault. The home has been issued a shutdown order by the Pennsylvania Department of Public Welfare, but it's appealing that order and will remain open for 30 days.

The Philadelphia Inquirer reported that the victim's daughter planted a hidden camera in the room because she suspected mistreatment of her 83-year-old mother, an Alzheimer's patient. On three consecutive days in October, the camera caught Battles and Rodriguez handling the victim roughly as they helped her into and out of bed. For example, the videos show Battles grabbing and pulling or pushing the woman's legs roughly; and both workers placing her on the floor before shoving her into bed. Another video shows the victim falling out of bed with no help coming and no preventive measures. The woman can clearly be seen crying in some videos and was caught another time covering her face in fear. The victim was taken to the hospital in November with minor wounds to her legs and feet, and is now living at another home.

The Arbors at Bucks Run, a private for-profit home, immediately fired both employees after the family complained to the state. However, the complaints triggered a state inspection Dec. 3 and revoked the home's operating license Dec. 7. The Inquirer said the action was a penalty for hiring Rodriguez and Battles before finishing background checks; PhillyBurbs.com cited gross incompetence, negligence and misconduct. The home may continue operating while it appeals.

As a Philadelphia medical malpractice lawyer, I look forward to hearing more about this case. It has several similarities with the 2011 case involving the Quadrangle nursing home, in which a dementia patient's daughter confirmed suspicions of abuse with a hidden camera. That family went on to file a lawsuit against the home, and the employees caught on camera were criminally charged for their part. The employees in this case have a defense attorney who believes their actions were misinterpreted, but as a Philadelphia injury lawyer, I suspect the videos will speak for themselves when it's time to go before a jury. But more importantly, I hope the regulatory action taken against this home results in long-term improvements in patient safety.

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December 4, 2012

Pennsylvania Supreme Court Permits Suits Against Nursing Home Parent Company and Affiliates - Scampone v. Highland Park Care Center


A major issue for Pennsylvania nursing home lawyers like me is the ability to sue the nursing home's parent company as well as the home itself and individual employees. Many Pennsylvania nursing home abuse cases involve issues of understaffing or under-training, or negligent hiring, all of which can stem from poor decisions by the nursing home company. In Scampone v. Highland Park Care Center LLC, the estate of Madeline Scampone made these kinds of allegations against Highland Park Care Center and Grane Healthcare, alleging they had been directly negligent as well as indirectly negligent through the actions of their employees. Highland Park was the Pittsburgh-area nursing home where Scampone died; Grane was the management services company for Highland Park. The trial court granted a nonsuit for Grane, finding insufficient evidence of its liability, but the appeals court reversed and the Supreme Court upheld that.

Scampone lived at Highland Park from 1998 until her death in 2004, undergoing treatment for dementia, high blood pressure, lung disease and osteoporosis. Between June 2002 and January 2004, she was admitted to the hospital five times for urinary tract infections. During the final hospitalization, she was also admitted for malnutrition, dehydration, bedsores and an acute myocardial infarction. She died in early February. Her son, acting on behalf of her estate, later alleged in the lawsuit that Highland Park and Grane themselves were negligent, as well as responsible for the negligence of their employees. The trial included testimony from former employees that they lacked the time to follow care orders for Scampone or ensure that she had adequate food, water, medicine and activity; witnesses said staff members failed to follow doctors' orders.

At the end of this testimony, Grane moved for a nonsuit and received it; Highland Park also received a nonsuit on punitive damages. However, the Superior Court reversed, finding sufficient evidence to support direct and vicarious liability for Grane and punitives for Highland Park. Both corporate entities appealed to the Pennsylvania Supreme Court.

That court upheld the lower court, but with different reasoning, finding that a resident like Scampone may have a valid claim for corporate negligence against the nursing home and related entities. It rejected arguments that nursing home companies cannot be liable for direct negligence because they work through their employees and officers, saying it had recognized a direct duty in the past and that vicarious liability is an insufficient substitute. Nor did the high court believe the nursing home's argument that its own caselaw limited corporate direct liability to hospitals. The proper question in this case, the court said, was whether evidence showed the kind of relationship between Scampone and the defendants to give rise to a duty of care. Because the trial court did not make its decision on that basis, the Supreme Court said, the case must be remanded to make that determination and conduct any resulting trial.

As a Philadelphia injury lawyer, I am very pleased to see the state's highest court reject arguments that would have exempted nursing homes from liability in Pennsylvania. Though the court made its decision according to its caselaw rather than what it perceived as good public policy, I believe it's good public policy to retain nursing home companies' accountability for wrongdoing. Nursing home companies don't like to be sued, so if they know a suit is a strong possibility, they're more likely to prevent any unsafe behavior. This may be the wrong reason to do the right thing, but the end result will be better protection for the elderly and disabled people in Pennsylvania nursing homes. As a Philadelphia medical malpractice lawyer, I believe these vulnerable patients are owed the strongest regulatory scheme we can devise.

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November 21, 2012

Study: Norovirus Outbreaks in Nursing Homes Increase Risk of Death From Any Cause


As a Pennsylvania nursing home lawyer, I know that outbreaks of disease are distressingly common in nursing homes. Any situation where people live in close quarters increases the risk of a communicable disease, but in nursing homes, the situation is worse because the residents are usually elderly and not in peak health. As a result, the staff's failure to take basic precautions like washing hands can cause a deadly outbreak. Now, a new study from the University of Chicago School of Medicine shows that outbreaks of norovirus--a virus that commonly causes the stomach flu--in nursing homes is associated with a risk of death or hospitalization from any cause. While it's not surprising to find that norovirus causes norovirus-related hospitalizations, the study suggests that the virus may increase all risks to patients.

The study, reported in the online version of the Journal of the American Medical Association, was a retrospective analysis of two years' worth of Medicare and CDC records from nursing homes in Oregon, Wisconsin and Pennsylvania. (These were the states with the greatest number of outbreaks, which is bad news here in Pennsylvania.) During the duration of the outbreaks, the study found, hospital admission rates were 124 per nursing home per year, higher than the 109.5 per home per year rate when there was no outbreak. Death rates during outbreaks were 53.7 per home per year and 41.9 per home per year when there was no outbreak. Significantly, the study found that the risk of death disappeared when the home had a high number of registered nurse hours per resident, but increased when the RN time dropped to 0.75 hour per resident per day.

Researchers suggested that the risks may stem less from norovirus itself than from the disruptions caused by the outbreaks. As a Philadelphia medical malpractice lawyer, I agree that this seems likely. Many nursing homes--especially private, for-profit homes--are perpetually understaffed because staff is very expensive. This is unfortunate for patients, because studies consistently show that care is better and risks are lower with a higher staffing ratio, especially when skilled staff has more hours. A viral outbreak undoubtedly strains those stretched resources, causing a higher risk of things going undone or unnoticed. As a Philadelphia injury lawyer, I'm familiar with the results: missed or wrong medications, inattention to basic food and water and bedsore needs, dementia patients permitted to wander and more kinds of Pennsylvania nursing home abuse.

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November 6, 2012

Mississippi High Court Permits Brother to Substitute for Niece in Nursing Home Death Case - Jaquith Nursing Home v. Yarbrough


As a Philadelphia injury lawyer, I sometimes have the solemn and important responsibility of helping families sue over a wrongful death. A wrongful death is any death caused by someone else's negligence; that includes crimes, but also anything that the victim might sue over if he or she were still alive. Under state laws, however, not just anyone can sue for a wrongful death; the person bringing the suit must usually be a close family member or the person handling the deceased person's will. In Jacquith Nursing Home v. Yarbrough, a nursing home being sued over the wrongful death of Walter Yarbrough objected that his niece, Nellie Andrews, did not have the right to sue. The home moved to dismiss the case, but the estate of Yarbrough's brother Spencer Yarbrough moved to substitute, and the trial court permitted it. The Mississippi Supreme Court affirmed this ruling.

Walter Yarbrough had a severe mental impairment that made him dependent on care for a lifetime. His family cared for him until 1976, when he moved into the Jacquith Nursing Home of the Mississippi State Hospital. He died there in 2002, of causes not described in the opinion, but in a way that gave rise to a wrongful death claim by Andrews, who had handled his affairs just before his death. The initial 2002 filing named Andrews as Yarbrough's personal representative, but it wasn't until 2005 that she was appointed administrator of the estate. The home cited this in its 2008 motion to dismiss, saying Andrews lacked standing to sue as a niece or, in 2002, as an administrator. In response, the estate of Spencer Yarbrough, who had died in 2007, moved for a substitution. The trial court ultimately decided to deny summary judgment to the nursing home and grant the substitution, thus denying the home's attempt to end the case.

On appeal, the Mississippi Supreme Court affirmed, finding that Andrews was an "interested party" under state law, and thus entitled to bring the original action. Caselaw from the same court found that a wrongful death action may be brought by "all interested parties" who are heirs at law of the deceased person. This includes parties not expressly listed as heirs by the Mississippi wrongful death statute. Andrews was an heir at law of Walter Yarbrough; this was confirmed by the court that appointed her administrator of his estate. There were no higher-priority heirs in this case because Walter Yarbrough never married or had children. Thus, Andrews was permitted to file the original suit. Furthermore, the court noted, though Andrews had incorrectly stated that she was the personal representative for Yarbrough before he died, she had a good-faith belief that she was. She was playing that role on behalf of her uncle Spencer Yarbrough, who had been incapacitated. Thus, the Supreme Court upheld the trial court.

Though the question of standing to sue may seem like a side issue compared to the actual claim against the nursing home, it's actually vital. If the court had decided she had no standing to sue, it would have ended the case--regardless of the merits of the claim against the nursing home. As a Pennsylvania nursing home lawyer, I am sure that was the goal of the nursing home. Nursing homes do not like to let juries hear stories of Pennsylvania nursing home abuse, because when the facts are out, juries are often horrified at the conditions that led to the claimed injuries. As a result, they're willing to spend a lot of time and money fighting seemingly inconsequential battles. Part of my job as a Philadelphia medical malpractice lawyer is to ensure that such inconsequential questions don't end the case before its merits can be heard.

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October 16, 2012

Family Alleging Nursing Home Neglect May Make Ordinary Negligence Claim - Southwell v. Summit View of Farragut


As a Pennsylvania nursing home lawyer, I was interested to see a case in which a family was allowed to claim a nursing home was negligent, even though it was not allowed to sue for medical malpractice. In Southwell v. Summit View of Farragut, Robin Southwell sued Summit View for alleged negligence leading to the death of her mother, Claudia Adkins. The district court dismissed the case with prejudice, finding Southwell had not met the requirements of the Tennessee Medical Malpractice Act and had failed to state a claim under the Americans With Disabilities Act. But the Sixth U.S. Circuit Court of Appeals reversed on appeal, finding that while dismissal was correct on those counts, Southwell should be permitted to amend her complaint to include allegations of common-law negligence.

Adkins was deaf and blind and suffered from emphysema and cancer when she was transferred to Summit View from the University of Tennessee Medical Center on December 11, 2009. She died on October 6, 2010. The allegations about how Summit View contributed to Adkins's death were not repeated in the opinion, but Southwell filed suit in Tennessee state court about a month and a half after the death, alleging medical malpractice, wrongful death, negligence and a disability-related claim construed as an ADA claim. Because Adkins had lived in Florida prior to her death and Summit View was a Tennessee company, Summit View successfully removed the case to federal court. Summit View's motion to dismiss argued that Southwell failed to provide an expert's affidavit, proper notice or Adkins's birth date in support of the medical malpractice claim, and the district court agreed. It also dismissed the ADA count for failure to state a claim. Both dismissals were with prejudice; the district court closed the case.

Southwell's appeal argued that while the district court may have been correct, it failed to consider her common-law claims. The Sixth Circuit agreed. After ruling that diversity jurisdiction was proper, it found that dismissal of the Tennessee medical malpractice claims was correct. (Southwell did not dispute this.) It also agreed that dismissal of the ADA-construed claim was correct; the ADA does not provide the monetary damages Southwell sought for failure to provide an interpreter. However, it found merit in Southwell's argument that the district court should have addressed her negligence and wrongful death claims. Southwell alleged that Summit View failed to put Adkins in a proper room; failed to properly care for her emphysema and cancer; and failed to keep the supervising doctor informed about her condition. Southwell did not expressly plead these as failures of the non-medical personnel, the Sixth Circuit said, but she should be given a chance to amend her complaint to do so. Thus, it reversed dismissal and remanded to give her that chance.

This case has several aspects that interest me as a Philadelphia injury lawyer. The medical malpractice dismissal is very harsh; other courts have permitted medical malpractice plaintiffs to amend their filings to include previously forgotten documents. As a Philadelphia medical malpractice lawyer, I strongly suspect the Tennessee law requiring dismissal with prejudice was a politically motivated medical malpractice "reform" law. These "reform" laws are often designed to make it harder to sue medical providers, protecting their (and insurance companies') profits but leaving injured people in the lurch. It's also worth noting that Pennsylvania nursing home abuse is not always or even ordinarily medical malpractice. Nursing home employees are not all medical professionals, and many forms of physical abuse or neglect are nonmedical in nature.

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October 3, 2012

Authorities Charge Eastern Pennsylvania Nursing Home Employees With Criminal Neglect


I was disappointed to see a recent report of Pennsylvania nursing home abuse so serious that it led to criminal charges. The Altoona Mirror, a community newspaper in western Pennsylvania, reported Sept. 26 that the former owner of Warner's Home for the Aged and two ex-employees of the home were charged with neglect by a grand jury in the case of Kenneth McGuire. McGuire was 80 when he died from complications of serious neglect by the home's employees. His hospitalization and death led to the revocation of the home's license in December of 2011. Now facing charges of neglect of a care-dependent person are ex-owner Sherry Jo Warner, 64, and ex-employees Diana Frye, 62, and Marjory Koch, 44.

McGuire had lived in the home five years before he was admitted to the hospital on Nov. 5, 2011. A doctor's visit in July of that year had turned up nothing worse than a small sore on his leg. However, McGuire's condition deteriorated in the months after, requiring him to move from using a cane to walk to using a wheelchair. As a result, he needed more intense care, including regular turning to prevent pressure sores as well as basic care like bathing and feeding. After his hospital admission, it became clear that he had not received that care in some time. His toes and shins were covered in pressure sores, and one foot was gangrenous. He was also covered in dried urine and feces when he was admitted to the hospital, and he was dehydrated, malnourished and suffering from sepsis. His doctor and the staff at the medical center testified that he was in worse shape than any other nursing home patient they had seen.

As a Pennsylvania nursing home lawyer, I'm sorry to say that this story sounds familiar to me. Pressure sores (also known as bedsores and decubitus ulcers) are a very common condition in nursing homes because the homes deal with so many people who have limited mobility. They are simple to prevent--caregivers must turn the patient regularly--but this is time-consuming. As a Philadelphia injury lawyer, I know many of the for-profit nursing homes cut their staffs, or the quality of their staffs, in an attempt to save money, and keeping up with important duties like this gets more difficult as a result. I believe the safety of patients should be prioritized above profit for the home's corporate parent, and I'm glad we have laws enforcing that even when the caregivers fail in this most basic duty.

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September 24, 2012

Pennsylvania Nursing Home Abuse: Out-of-State Case Highlights the Horrific Extent of the Problem


When you hop onto a Pennsylvania nursing home abuse blog, like this one, you're bound to find stories that may at first blush seem to create a confirmation bias. In other words, this blog is maintained by a high profile and widely respected Philadelphia nursing home neglect and abuse law firm. So it obviously contains information and stories that elevate the salience of nursing home abuse and neglect.

Thus, you might be led to believe that this blog is biased and that it "over reports" the extent of the problem.

But both objective statistics and good science reporting should refute this skeptical mindset.

Consider, for instance, a terrifying story from last week's news alone - which highlights the horrific and diverse extent of the problem.

Arlington Texas police are investigating claims that a woman's elderly mother had been abused at the Heritage Oaks Nursing Home on Gibbins Road. 83-year-old Mynez Carter is afflicted with Alzheimer's disease. She needs round the clock care. Her family became angry and suspicious, after they saw unexplainable bruises on the matriarch's body.

What was causing those disturbing bruises?

The woman's daughter, Freddie Johnson, suspected abuse at the nursing home.

To test her theory, Ms. Johnson surreptitiously installed a hidden camera in her mom's room to try to catch suspected abusers in the act. She later told news sources that, once she saw the hidden camera footage, "my heart started racing and I was horrified. And I was more mad than anything just to know this was going on with my mother..."

Ms. Johnson said the video clearly demonstrated that staff workers had been abusing her mom.

In one case, one of the workers pinched Carter's leg. In other case - a scarier example - one worker pulled her mom's hair and pushed on her head. Johnson and her siblings met with the administrator of Heritage Oaks, Jerry Warren. They also filed a police report, and Texas police are investigating.

One of the most disturbing - and also captivating - aspects of the story is the hidden camera.

We all want to know "what goes on" when we're not around. That's fundamental human curiosity at work. Many people who are even slightly dubious about a nursing home would likely be intrigued by what a "hidden camera" might have to say.

Hidden cameras are interesting devices, in that they reveal unfortunate truths about the limits of our trust. What does it say about our society that the children of an elderly woman in desperate need of care must spy on their mother, just to make sure that she is not getting abused?

This is a deep question with potentially worrisome answers.

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September 7, 2012

Pennsylvania Nursing Home Sex Abuse News: Sick Charges against Nursing Home Workers in Nearby Staunton


The Pennsylvania nursing home neglect and abuse attorneys here at Rosenbaum & Associates often hear about some awful and depraved acts. These horror stories strengthen our resolve to ensure justice and maximize safety for our clients. Unfortunately, many nursing home abuse victims lack perspective about just how pernicious and disgusting these crimes can be; as a result, they may fail to take swift and effective action to stop them.

Consider, for instance, recent accusations against employees at a nursing home called Envoy of Staunton. The situation at this nursing home is, to put it mildly, disgraceful.

Consider these points:

• One employee, 47-year-old Anthony Johnson, faces both criminal and civil charges in connection with accusations that he groped a 53-year-old patient and compelled a 43-year-old patient to have oral sex with him. One of the family members of the victims finally reported Johnson's actions to the police. Envoy finally fired the nurse's aide, but that punitive action obviously cannot undo the damage done to the assaulted patients.
• Meanwhile, Diane Renee Kline, a 41-year-old administrator and RN, stands accused of failing to report exploitation/abuse to Adult Protective Services. This may not seem to be as "serious" as the crimes that Johnson allegedly committed, but when nursing home watch dogs fail, the system basically collapses;
• 69-year-old Charles Williams, another Envoy employee, stands accused of penetrating a 71-year-old woman with an animate object. In that case, the nursing home immediately contacted police, but still... it does not speak well of a facility when multiple disgusting events occur.

An inspection of this nursing home exposed ten different deficiencies in areas as diverse as food safety, medication management, care and services, and infection control.

The crime of nursing home sexual assault in Philadelphia or elsewhere is grim and terrifying. Some victims may be too terrified to come forward to authorities or even to family members. Others may be too sick or cognitively impaired to report the abuse or even understand what's happening.

An aggressive, successful advocate for victims and their families

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August 16, 2012

Pennsylvania Nursing Home Abuse Law, Designed to Limit Punitive Damages, Stalls in the PA Legislature


As a firm that's very active in Pennsylvania nursing home abuse and neglect law, Rosenbaum & Associates pays close attention to the relevant machinations going on in Harrisburg.

As readers of this blog might remember, last fall, the Pennsylvania House passed a bill supported by associations like Pennsylvania Health Care Association/Center for Assisted Living Management. The bill aimed to limit punitive damages that liable nursing homes would have to pay in certain cases. Damages would be limited to double compensatory damages (at best), with an exception for situations in which intentional misconduct occurred.

The bill would also compel plaintiffs to file in the county in which the abuse/negligence happened -- as opposed to in counties that have a reputation for being more favorable to plaintiffs.

The Nursing Home Associations' push may have stalled out for now, but analysts believe that the effort could be kick started again in the fall.

Advocates of the legislation cite the fact that Pennsylvania's malpractice insurers paid out nearly $320 million in 2011, according to National Practitioner Data Bank research. That would make Pennsylvania the second biggest medical malpractice payout state - ahead of New Jersey and Illinois, but significantly short of New York's numbers (a $680 million payout!)

The Nursing Home Association has also complained that nursing facilities often operate on small margins; and these fragile businesses could lose everything in a single massive lawsuit. Advocates of the bill also point to massive, almost cartoon-like judgments in places like Florida, where two state facilities last year got hit with judgments of $200 million and $900 million, respectively.

What advocates of this Pennsylvania Nursing Home legislation are not paying attention to...

It's true that abuse/neglect lawsuits and settlements can place a burden on facilities. But isn't that burden a good thing? If you or someone you love got hurt in a PA nursing home due to a prescription medication foul-up, bedsore metastasizing into life threatening sepsis, or other horrific scenario, wouldn't you want to be able to leverage a full suite of legal tools to get compensated and to take care of your loved one?

Is our current system always totally fair? No.

But it's more unfair to victims of abuse or neglect than it is to owners of negligent facilities - by a long shot.

Perhaps if advocacy groups like the Pennsylvania Health Care Association/Center for Assisted Living Management spent more time identifying best practices for senior care -- and punishing facilities for straying from a high standard -- there would be less need for law firms and less need for the kind of legal actions that these groups rail against.

The horror stories that we've personally heard - and have helped to abate - along with compelling statistics at both the national and state levels suggest that the onus is on delinquent nursing facilities. These facilities need to do a better job of taking care of people: of fulfilling their fiduciary responsibilities not only to their patients but also to our communities.


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August 6, 2012

Philadelphia Nursing Home Abuse News: "Houses of Horror" Are All Over California


As a lawyer who specializes in Philadelphia nursing home abuse and neglect, I am constantly astounded by the lack of government control and outrage. How is it possible that so many facilities, not just here in Pennsylvania, but throughout the United States, allow residents to live in unsanitary conditions, to be overmedicated with the drugs, to suffer bedsores, and to endure indignities like fraudulent billing, identity theft, sexual mistreatment, and so forth?

Unfortunately, since Rosenbaum & Associates is an advocacy firm for victims who've been damaged by Pennsylvania nursing home neglect and abuse, we are not an exactly an objective news source. Thus, when we sound the alarm bells, our claims might be dismissed as partisan.

That's why it's important to look to objective assessments, such as a recent series of 14 reports collected and analyzed by "Operation Guardian" out in California. From January 2010 through March of this year, California's Attorney General secretly sent investigators into nursing homes in Pasadena, Woodland Hills, and elsewhere in Southern California.

The stark results were released in the middle of July. Inspectors found all sorts of ghastly violations of human dignity:

• Improperly treated bed sores;
• Patients being improperly medicated or being put on psychotropic drugs, needlessly;
• Patients left to sit in their own urine and feces for hours at the time;
• Nurse/patient ratios that were ridiculously inadequate;
• Fraudulent billing;
• Poor end of life care;
• Dehydration and malnutrition -- easily avoidable, too!;
• Inadequate fall prevention;
• And beyond.

The California Advocates for Nursing Home Reform (CANHR) called the investigation "hair-raising" and said "the reports demonstrate that some nursing homes are houses of horror with life threatening filthy conditions, lack of staff to perform core functions, and poor management."

The California Association of Health Facilities (CAHF) tried to defend the industry as a whole, suggesting that the 14 facilities that proved dramatically noncompliant constituted a "small portion" of the facilities that care for 300,000 California patients annually. The California Advocates for Nursing Home Reform were not placated, however, and asked California's Attorney General to act on the information to make serious and robust changes: to prosecute managers, members, and owners of nursing homes with both civil and criminal charges.

From California to Pennsylvania: Nursing Home Abuse And Neglect Is A Nationwide Problem

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July 19, 2012

As If We Didn't Have Enough Trouble with Pennsylvania Nursing Home Negligence and Abuse: Woman Stole Over $300,000 from 67-Year-Old Resident


Nursing home negligence and abuse in Philadelphia and elsewhere is a national epidemic - and a national disgrace.

But nursing facilities themselves are not the only parties who commit egregious, illegal actions. Witness the case of a Bensalem woman, who was arrested in June for allegedly stealing more than $300,000 from a 67-year-old woman living in an area nursing facility. Investigators say that 65-year-old Virginia Marquardt had obtained Power of Attorney for her neighbor, after the woman's husband passed away back in July 2007.

This power allowed Marquardt to control the woman's assets, money, and bank accounts. Marquardt then allegedly embarked on a series of abuses of her power and trust. First, she made herself a 50% beneficiary of the estate. Then, in the spring of 2008, she drew up a new will for the victim, naming herself as beneficiary of her assets to the tune of 50%.
If that wasn't insult enough, Marquardt then allegedly slowly stopped paying for woman's nursing home care. The outstanding balance for the care climbed over $20,000 in 2009.

By the end of that year, Marquardt had stopped paying the home entirely. She told the facility that the resident had run out of money. Meanwhile, the victim still possessed investments that had not been liquidated.

In 2010 and 2011, Marquardt did pay for some of the nursing home care, but the outstanding balance continued to grow. Investigators later found that Marquardt had siphoned off more than $300,000 of assets and used that money to pay for trips to Las Vegas, to buy luxury watches, and to pay off credit cards. Finally, in June, police arrested Marquardt and set her bail at $300,000. After posting 10% of that money, she was released, and the court system will now determine what will happen to her.

This case sounds very sad for a number of reasons. Assuming the allegations are true, who knows what motivated Ms. Marquardt to engage in this behavior? Furthermore, who knows how the 67-year-old's care might be affected by the financial double cross?
This situation illustrates how Philadelphia nursing home financial abuse cases can take years to surface.

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July 11, 2012

Landmark Pennsylvania Nursing Home Case Could Change Balance of Burden: All About Health Care and Retirement Corp of America v. John Pittas


Pennsylvania nursing home negligence and abuse is obviously a huge problem. But a similar - and linked - issue is the cost of senior care.

Who should pay for a nursing home stay: the resident and his/her family... or the government? This question is at the core of a lot of nursing home legal disputes in Pennsylvania and elsewhere.

An Appellate Court ruling in the case of Health Care and Retirement Corporation of America v. John Pittas may have significant bearing on this debate, insofar as it may serve as a harbinger for a changing "balance of burden."
Here are the key details...

Pittas's mother had entered a Pennsylvania nursing home while recovering from a car accident. Although she had a pension and collected Social Security, her income amounted to just $1000 a month. This was obviously significantly less than the cost of her stay at the home. Over six months, she racked up unpaid bills of approximately $93,000.

To get paid, the nursing home leveraged Pennsylvania's filial responsibility statutes to try to get her son, John Pittas, to pay the $93,000 owed. Three-fifths of all U.S. states have filial responsibility statutes, which compel adult children to help pay for their parents' nursing home care, when the parents are indigent.

Interestingly, nursing homes can sue family members arbitrarily. Pittas argued that he was just one of many children who could have shared his mom's burden -- and that he was unfairly singled out. But the Appellate Court ruled that the nursing facility could go after him and not his siblings or his mom's other relatives.

Situations like the Pittas case are nuanced and trick. Medicaid cannot take into account the income and assets of adult children of elderly parents who need care, when the program determines eligibility. Likewise, once a person is already enrolled in Medicaid -- and becomes eligible for long-term benefits -- lawsuits like the one that hit Mr. Pittas become untenable.

In this particular case, the women had applied for Medicaid, but her application was pending. It hadn't gone through. So when she racked up her bills, the facility was allowed to sue her son.

The practice of compelling adult children to take care of aging parents has a long legacy - dating at least back to England's Poor Relief Laws from the 1600s.

Cases like this one have been relatively rare in recent years, but inside analysts are sensing a shift. They believe that these "let's make adult children pay for their parents' care" cases will become more and more common, given the escalating costs of senior care, forces urging the government to "turn down the flow" of funds for senior benefits, etcetera.


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