Pennsylvania Nursing Home Abuse Attorney Blog

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

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

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

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

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

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

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

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

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

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

I've written here many times as a Pennsylvania nursing home lawyer about the dangers of overusing antipsychotic drugs in nursing homes. Sometimes called "chemical restraints" because the practice effectively prevents patients from being physically or mentally active, antipsychotics were once commonly used off-label in dementia patients. Their use has been curbed somewhat since 2005, when the FDA issued its strongest possible warning that studies have associated atypical antipsychotic use in the elderly with increased risk of death; the agency extended that warning in 2008 to all types of antipsychotics. Nonetheless, a federal report last year found the drugs are still used more widely in nursing homes than they should be, with numerous Medicare recipients getting the drugs for no medically accepted reason or in a way that violates federal standards.

Now, the Centers for Medicare and Medicaid Services has announced a campaign to stop unnecessary use of antipsychotics. According to McKnight's Long-Term Care News, CMS will promote alternatives to medication to control behaviors among dementia patients that are violent or otherwise difficult for caregivers to handle. These can include intervening in patients' behavior, better communication with patients when possible, and treating any problem that might be the real cause of an outburst, such as undiagnosed pain. Nursing home industry observers also called for homes to recheck whether there was ever a valid indication for the medication, and whether it's still valid today. McKnight's reported that this issue has been front and center partly because of interest from Sen. Chuck Grassley, R-IA, who may have driven the CMS initiative. That initiative will kick off March 29 with educational programs as well as increased regulatory oversight.

As a Philadelphia medical malpractice lawyer, I applaud Grassley and the no doubt many others who have been working to keep this issue front and center. Because of their illness, nursing home patients with dementia can rarely speak for themselves, so it's vital that we speak for them. That's particularly true for patients who are receiving antipsychotics unnecessarily, because a side effect of those drugs is sedation. (Indeed, it's possible that sedation is the goal of homes that overuse the drugs.) Like other powerful prescription drugs, however, antipsychotics carry even more serious side effects, including large weight gain, diabetes, sudden cardiac death, stroke and more. That's why knowingly misusing the drugs in elderly people, just to avoid taking the expensive staff time necessary to intervene in their behavior, is a form of Pennsylvania nursing home abuse.

Continue reading "CMS Announces Campaign to Reduce Unnecessary Use of Antipsychotics in Nursing Homes" »

As a Pennsylvania nursing home lawyer, I was interested to see a nursing home negligence case that was sent back for a new trial that included evidence not previously presented. In Bedell v. Williams, the Arkansas Supreme Court also removed one defendant from the case, finding that the leader of the nursing home's governing body could not be sued in his personal capacity. The victim was Minnie Lee Valentine, who died after two extended stays at Little Rock Healthcare, a nursing home, and trips in and out of other care facilities. Valentine had suffered a severe stroke before entering the home and had a slight pressure sore when she arrived, but that sore worsened as time went on. Before her death, Valentine suffered amputations related to other pressure sores as well.

Valentine suffered a stroke in May of 2004. When she was released from the hospital and into the care of LRHC, she depended on nursing care and had a feeding tube, a pressure sore on her tailbone and a urinary tract infection. She was treated at LRHC, but the pressure sore did not heal and she also began showing signs of malnutrition and dehydration. In June, she was admitted to another hospital for pneumonia, where her pressure sore continued to worsen. After release to LRHC, nurses found signs of infection in the pressure sore, which ultimately led to another hospitalization. After this hospitalization, she was released to a different nursing home, where the pressure sore worsened and new sores developed on her feet and ankles, requiring multiple amputations. She died in February of 2005.

Brenda Williams, the personal representative of Valentine's estate, filed suit against multiple defendants, all of whom were dismissed except LRHC; the president of its corporate owner, Donald Bedell; and Heartland Personnel Leasing, Inc. Those companies were tried on claims of negligence, medical malpractice and violations of the Arkansas Residents' Rights Act, and the jury ultimately awarded $5.1 million to Valentine's estate from LRHC; $350,000 from Heartland; and $5 million from Bedell. All three defendants appealed the outcome, the damages and certain rulings leading up to the outcome.

The Arkansas Supreme Court started by agreeing with Bedell on his claims that he cannot be found negligent because he owed no personal duty to Valentine. The parties agree that Bedell was not personally involved in Valentine's care, the court said, but the trial court nonetheless found a duty stemming from federal law and a parallel internal policy at LRHC. This was incorrect because the federal policy governs Medicare and Medicaid eligibility, the high court said; the LRHC policy was created merely to comply. Thus, Bedell was an inappropriate defendant and the Supreme Court dismissed him. It next turned to arguments that the trial court should have allowed evidence about Valentine's health after her discharge from LRHC. Because the defense argued that Valentine's health was inevitably declining, it should have been permitted to introduce evidence about how she fared after discharge. Failure to include this information was prejudicial, the high court said, and that warrants a new trial altogether. Thus, it dismissed Bedell and remanded for a new trial of LRHC and Heartland. It then addressed other contentions for the purposes of retrial.

As a Philadelphia medical malpractice lawyer, I'm disappointed that this victim's estate and loved ones will have to retry the same case again. This is not just a delay for them, though these delays can be hard on suffering families; it is also an additional expense. Worse, it will not necessarily lead to the same result for them. This case may have been especially vigorously litigated because the verdict was very high, but -- as many nursing home companies know -- verdicts are often very high in cases of Pennsylvania nursing home abuse. Understandably, juries are not impressed by nursing homes that permit, ignore or even encourage abusive conduct and severe neglect of their patients. Patients like Valentine, who was dependent on full-time nursing, are at especially great risk from uncaring or lazy caregivers. As a Philadelphia injury lawyer, I am proud to help families fight this kind of negligence when it happens in the name of profit.

Continue reading "Arkansas Supreme Court Orders New Trial for Family of Nursing Home Negligence Victim - Bedell v. Williams" »

As a Philadelphia injury lawyer, I know financial exploitation of seniors is a serious problem, but one that gets discussed less than some of the horrifying Pennsylvania nursing home abuse or neglect cases that have made it into the media. So I was interested to see a report in the Philadelphia Inquirer on Feb. 20 that a nursing home staff member was caught with property belonging to her patients when she was pulled over for another reason. Shakeana Sims of Newark, Del., works at the Kendal Crossroads Nursing Home in Kennett Square, Penn. Sims, 25, was pulled over at 12:45 a.m. after an officer noticed that her car had a false registration. Computer records then showed several outstanding warrants for Sims, leading to her arrest and the discovery of the stolen objects.

Sims is a nurse's aide at the home, in Chester County. News sources did not report on the reasons for her outstanding warrants. However, they were enough to lead to her arrest. After she was taken to the police station in New Castle County, Del., for processing, officers found the stolen items among her personal belongings. They included a watch, a bank card and a blank check, all belonging to two of the residents Sims cares for at the Kendal Crossroads nursing home. She was arrested for stealing property from those residents, as well as for several traffic offenses, and held in lieu of bail.

As a Pennsylvania nursing home lawyer, I suspect this arrest is raising some alarms among residents of Kendal Crossroads and their family members. Theft from nursing home residents is not necessarily reported by the state and federal agencies that track nursing homes' safety and hygiene, but it's a serious problem. As with physical abuse and neglect, nursing home patients may not be able to raise an alarm about theft because of their health conditions and because nursing home staff is not predisposed to believe them. As a result, discovery of the theft is often delayed until family members notice missing money or valuables. By this time, of course, a thief may have gotten access to the patient's accounts, potentially destroying his or her financial security. Patients and their families at this nursing home may be wondering how this happened under the watch of supposedly careful administrators -- and whether any other employees have sticky fingers or a criminal record that should concern them. As a Philadelphia medical malpractice lawyer, I hope these families are effectively advocating for themselves.

Continue reading "Philadelphia Nursing Home Worker Caught With Residents' Property During Traffic Stop" »

As a Pennsylvania nursing home lawyer, I was interested to see a record-setting verdict in a Florida case involving serious neglect of a 92-year-old woman. According to the Tampa Bay Times, a jury in Tampa Bay has awarded $200 million to Richard Nunziata, the adult son of Elvira Nunziata, who died in 2004 when she fell down a staircase while strapped into a wheelchair. Nunziata was in the early stages of dementia and prone to wandering; the nursing home was supposed to have alarms on the door, her clothing and the wheelchair. But the employees at the home reportedly disabled the alarm so they could take frequent smoking breaks, according to the newspaper. Unusually, the nursing home company did not defend itself, in part because its several related business entities had gone out of business.

Nunziata was a resident at Pinellas Park Care and Rehab Center in St. Petersburg. One afternoon, she disappeared from a group of residents, and an hour passed before staff members noticed. When they checked the emergency exit door, they found her at the bottom of a staircase, her bloody body still strapped to the wheelchair. She died just after paramedics arrived. The Pinellas Park nursing home had a history of deficiency citations and abuse complaints, according to the newspaper. At trial, former employees testified that the home was frequently understaffed and that the door alarm was routinely disabled by smokers. They also told the jury that Nunziata had fallen before and was known to wander. The jury award for $60 million in compensatory damages and $140 million in punitive damages is believed among the largest in the state of Florida.

The for-profit nursing home's management company, Trans Health Management Inc., did not defend itself in court; its parent company is in a receivership in Maryland. An attorney representing Trans Health filed unsuccessfully to stop the trial three days before it was scheduled to begin. However, the Tampa Bay Times noted Feb. 5 that collecting on the judgment may be difficult. That's because the assets and liabilities of the nursing home have been separated into a set of companies -- many using the same phone number and office building as Trans Health -- whose legal relationships will have to be sorted out in court. In fact, the company that inherited the liabilities has disappeared without filing tax returns, the newspaper said. The nursing home abuse attorneys for Nunziata's estate said these companies existed only to strip away assets and protect the defendants from liability, and the real owners are a series of private investors.

This kind of corporate shell game is not unknown to Philadelphia injury lawyers like me. For-profit nursing homes are increasingly using corporate law to shield themselves from the consequences of their own negligence. To collect on a Pennsylvania nursing home abuse verdict, plaintiffs frequently must do some detective work -- the Nunzata case involved testimony from a forensic accountant -- and pursue entities that may be far away from the home in question. As the newspaper noted, even the federal General Accounting Office could not determine which of the corporate entities attached to the six biggest nursing home chains were in charge of what. As a Philadelphia medical malpractice lawyer, I oppose this because it prevents injured families like Nunziata's from collecting on debts they are legally owed -- debts ordered by a court after a fair trial.

Continue reading "Jury Awards $200 Million in Death of Florida Woman From Nursing Home Neglect" »

As a Pennsylvania nursing home lawyer, I was very interested in a bill that recently became law in Harrisburg. The Long-Term Care Nursing Facility Independent Informal Dispute Resolution Act will establish a new process for Pennsylvania nursing homes facing regulatory penalties after state regulators' inspections or responses to complaints. A press release from State Rep. Mauree Gingrich of Lebanon said the process will give long-term care facilities the option of using the current regulatory process through the state Department of Health, or choosing an outside reviewer at their own expense. The bill was hailed by state legislators including Gingrich for its potential to save money for nursing homes. It was passed in the state House Dec. 16 and signed Dec. 22, with an effective date of April 1, 2012.

Under the act, nursing homes now have the option of bypassing the current review process when they are found out of compliance with a state safety regulation. They may still use that process, but they may also hire a private Quality Improvement Organization at their own expense. Legislators said this would permit nursing homes with compliance problems to dispute inspectors' findings before those findings are entered into federal systems that collect nursing home quality data. This, in turn, would permit homes to avoid litigation and thus save money. Proponents emphasized that the new system would still ensure quality of care for nursing home residents. Opponents of the bill, including organizations that advocate for the elderly, asked legislators to add provisions allowing patients and their families to have a voice during this process.

Cutting off patient access to the review process is concerning -- but as a Philadelphia injury lawyer, I am concerned about other aspects of this bill as well. Allowing nursing homes with safety problems to choose an outside inspector creates an opportunity for nursing homes to essentially buy the regulation they prefer, by choosing QIOs that are willing to provide whatever answer the nursing homes like. It will slow down the process of fixing any underlying problems, because it permits homes to delay their response while they go through the QIO process. The references to keeping homes' violations out of federal records are also disturbing. Using correct and current federal records is a great way for patients to avoid homes with a record of Pennsylvania nursing home abuse, so it's better to include every violation on record. As a Philadelphia medical malpractice lawyer, I hope patient advocates are following this law closely.

Continue reading "Pennsylvania Governor Signs Bill Establishing Informal Review of Nursing Home Violations" »

As a Pennsylvania nursing home lawyer, I was saddened but not surprised to read a new report detailing how many cases of elder abuse and Pennsylvania nursing home abuse often fall through the cracks. The investigative journalism organization ProPublica published a report Dec. 21 on the rarity of investigations into suspicious deaths of elderly Americans. According to the article, part of the problem is that older people's deaths are not unusual, and therefore not given the scrutiny that would be given to a younger person's death. Coroners may assume that older people died of natural causes without looking into it, especially with nursing home patients. However, the investigators found that coroners are under-funded and rely too heavily on doctors' reports on death certificates. In many states, doctors may sign death certificates without viewing the body, allowing nursing homes to cover up the true reason for a death even when a casual glance at the body reveals it.

That was the case in the death of William Neff, who died at 83 while he was in an assisted living home in Bucks County, Pennsylvania. When he died, the home told its doctor that "failure to thrive" due to dementia was the cause, and that's what the doctor put on the death certificate. But when Neff's relatives moved his body to a funeral home, the director preparing Neff's body for burial noticed broken ribs and a 16-inch bruise on one side. Rather than continuing preparations, the director contacted the Bucks County coroner's office, which determined that Neff died of a lung puncture caused by one of five broken ribs, caused by some kind of violent impact. A criminal investigation of the home eventually revealed that Neff was beaten to death by home employee Heidi Tenzer, who was later convicted of third-degree murder. Three other employees were convicted of related crimes. In other cases profiled in the article, homes used natural causes to cover up the effects of neglect, including deep, severe bedsores; misuse of antipsychotic drugs; dehydration; infections; and disease.

As a Philadelphia medical malpractice lawyer, I know any of those conditions would raise serious questions about the nursing home's quality of care and safety. Pressure sores in particular (also known as bedsores) are a serious issue because they require frequent attention and go unattended far more often than they should. The abuse described at the Bucks County nursing home is even more troubling because there's no way that Neff's abuse could be attributed to mistakes or overwork; he was literally beaten to death. To make matters worse, the article reports that Neff had speech problems because of his Alzheimer's, meaning he likely couldn't speak up about any previous abuse. The case resulted in several criminal prosecutions. As a Philadelphia injury lawyer, I hope it also sparked a state investigation into the quality of that home's care, in order to protect other vulnerable residents -- and close scrutiny by the families of other residents.

Continue reading "Report Reveals Coroners Often Miss Deaths Attributable to Nursing Home Abuse" »

As a Philadelphia injury lawyer, I often handle nursing home lawsuits in which the victim or a relative has signed an arbitration agreement with the nursing home. This is an agreement to settle disputes in a private version of the public courts we're used to, and it is often bad for the victim and family because it allows the nursing home some opportunity to "buy" the ruling it prefers or limit families' rights. As a result, many families are challenging these contracts, especially when they were signed under suspicious circumstances. In the Florida Supreme Court's Shotts v. OP Winter Haven, the family challenged the legality of a nursing home arbitration agreement, and the trial court allowed the arbitrator to decide whether the agreement was valid. The Florida Supreme Court reversed this, finding that the courts should decide whether to enforce such contracts.

Gayle Shotts was for many years the caretaker of her uncle, Edward Henry Clark, who suffered brain damage in a car crash in 1977. He later entered a nursing home, where he died in 2003. The opinion does not detail his death, but Shotts sued for wrongful death and the home moved to compel arbitration under an agreement Shotts signed on Clark's admission. The agreement required rules of the American Health Lawyers Association to be used; that no punitive damages could be awarded; and that any voiding of one provision would not void others. It also expressly said it would be governed by the Federal Arbitration Act. Shotts contended that the agreement was unenforceable because it violates Florida public policy, particularly the limitations on her remedies. The trial court granted the motion to compel arbitration, and the appeals court agreed that the contract was not unconscionable. It added that while the punitive damages portion could be unconscionable, arbitrators could sever it without nullifying the contract.

Shotts appealed. She argued that other Florida courts have found that courts, not arbitrators, must decide whether contracts are enforceable; and that other courts have found arbitration contracts unenforceable. The Florida Supreme Court agreed. Under its own precedent and other Florida precedent, it said, courts must decide whether a valid agreement to arbitrate exists -- even if arbitrators are permitted to decide on other issues of the contract. The high court cited with approval a concurring opinion in the Second District Court of Appeal, arguing that arbitrators should not make these decisions because of the power imbalance under which contracts are signed and the nursing home's ability to write itself a favorable contract. The high court noted that its decision conforms to that of most Districts. On the limitations of remedies, the court also agreed that they violate public policy, echoing several Districts. Some courts have even ruled against the specific limitations on punitive damages and which rules should be used.

Thus, the high court found that Shotts was correct to contend that the contract was unconscionable for violating public policy. Several provisions directly undermine the state Nursing Home Residents Rights Act, the court said. It ruled that any such arbitration contract is unenforceable. It then ruled that under Florida caselaw, the portions of the agreement that violate public policy are not severable, because they are fundamental to the contract. Two judges dissented, arguing that the Federal Arbitration Act should have been controlling and provided a different outcome.

As a Pennsylvania nursing home lawyer, I'm pleased with this outcome. Particularly in the analysis of the conditions under which nursing home contracts are signed, its analysis reminds me of the analysis in the West Virginia Supreme Court, which ruled this year that arbitration clauses in at least three nursing home arbitration clauses were unconscionable. As a rule, families place their loved ones in nursing homes because they cannot care for them at home anymore. Thus, they don't necessarily have the luxury of shopping around; they must make a decision quickly. In addition, most families don't have the legal background to read these arbitration agreements carefully, which means they may not fully understand what they're signing. This opens the door to allow nursing homes to face no repercussions from serious Pennsylvania nursing home abuse. As a Philadelphia medical malpractice lawyer, I hope other states take notice.

Continue reading "Florida Supreme Court Rules Courts Must Decide Whether Nursing Home Arbitration Applies - Shotts v. OP Winter Haven" »

I've written here many times about the overuse of antipsychotic medications among nursing home patients. These are typically prescribed for control of dementia patients with unpleasant behaviors like aggression, which is an off-label use not approved by the Food and Drug Administration. The practice has long been under fire by Philadelphia medical malpractice lawyers because of the drugs' tendency to sedate the patients into insensibility. The drugs also sometimes carry dangerous side effects; eight atypical antipsychotics recently got a warning that they may actually raise the risk of death in elderly patients. So I was interested to read an article suggesting that the Centers for Medicare and Medicaid, a federal agency that oversees those two programs, has proposed penalizing homes that overuse the drugs.

The proposal came in testimony from the Office of the Inspector General of the Department of Health and Human Services, which oversees CMS. The Inspector General, Daniel Levinson, authored a companion study that found a very high rate of erroneous Medicare claims for antipsychotics to treat dementia, that most antipsychotics are used for that purpose in nursing homes and that 14 percent of all Medicare patients in nursing homes had antipsychotic claims. Levinson has publicly argued that this is too high, especially considering the risk of death for elderly people taking atypical antipsychotics. In testimony before Congress Nov. 30, Levinson suggested that HHS penalize facilities that use Medicare to fund improper use of antipsychotics; one penalty could be withholding Medicare payments. The report by the Inspector General's office examined why Medicare Part D insurers don't refuse to reimburse for this off-label use.

As a Philadelphia injury lawyer, I'm pleased that this issue is getting the attention it deserves. Nursing home attorneys have argued for years that the use of drugs as "chemical restraints" is a misuse of medication, which robs patients of their ability to enjoy life and carries financial costs and potentially damaging medical side effects. Indeed, someone else testified at that hearing that antipsychotics are now essentially replacing physical restraints, which have fallen out of favor in nursing homes. Both of these are a form of Pennsylvania nursing home abuse that patients and their families should not allow, given the considerable risks. Families that suffer injury, illness or abuse because of off-label antipsychotic use should consider whether they want to get in touch with a Pennsylvania nursing home lawyer.

Continue reading "Federal Inspector General Calls for Penalties for Nursing Homes That Overuse Antipsychotics" »

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

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

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

Continue reading "Ohio Nursing Home Aide Pleads Guilty to Abuse of Dementia Patient Caught on Camera" »

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

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

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

Continue reading "Pennsylvania Watchdog Raised the Alarm on Unethical Promotions of Risperdal in Nursing Homes" »

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

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

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

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

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

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

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

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

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

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

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

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

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