January 16, 2012

Pennsylvania Governor Signs Bill Establishing Informal Review of Nursing Home Violations

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.

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January 4, 2012

Report Reveals Coroners Often Miss Deaths Attributable to Nursing Home Abuse

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.

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December 12, 2011

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

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.

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December 6, 2011

Federal Inspector General Calls for Penalties for Nursing Homes That Overuse Antipsychotics

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.

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November 29, 2011

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

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

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

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

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November 23, 2011

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

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

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

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

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November 14, 2011

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

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

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

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

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

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November 7, 2011

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

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

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

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

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November 1, 2011

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

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

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

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

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

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October 24, 2011

Court Upholds Penalties Against Nursing Home That Evicted HIV-Positive Woman - Canal Side Manor v. PHRC

As a Pennsylvania nursing home lawyer, I was interested to see a case about an issue that's relatively underreported: discrimination in nursing homes. According to the Allentown Morning Call, a Pennsylvania court has ruled in favor of a woman who said she was kicked out of a Walnutport nursing home when the staff discovered that she has HIV. G.D., who is 36 and also suffers from schizophrenia and bipolar disorder, ended up in a locked psychiatric ward because she had nowhere else to go. Her attorney said this was a textbook example of the harm discrimination causes. The Pennsylvania Human Relations Commission won a court judgment ordering Canal Side Care Manor and its owner, Lakshmi Kademani, to pay damages to G.D. and a fine to the state. In its ruling, the court also found that Kademani filed a frivolous appeal and was taking steps to hide her assets from the court.

G.D. went to Canal Side after her group home recommended more care than it could provide. She did not expressly tell Canal Side that she had HIV, but a Canal Side employee discovered it when asking what certain medications were for. Kademani, concerned abut HIV transmission through G.D.'s urinary incontinence, then gave G.D. 24 hours to leave. G.D.'s healthcare team told Kademani that there was no serious risk with proper precautions, which were already in place. Nonetheless, G.D. was kicked out, and because her family was unable to provide the care she needs, ended up in "lockdown" at a mental hospital. G.D.'s sister filed a complaint with the Pennsylvania Human Relations Commission, which eventually ruled for G.D., fining Canal Side $5,000 and ordering $50,000 more in damages to G.D. Canal Side and Kademani appealed. The Commonwealth Court was unimpressed with the appeal, finding that it was meritless, legally inadequate and intended to delay paying the damages. Thus, it ordered attorney fees for G.D.'s appeal as well.

As a Philadelphia injury lawyer, I'm pleased to see a decision upholding the rights of a woman with a limited ability to advocate for herself. As the article points out, the effects of the discrimination against G.D. were not minor. After she was evicted from the nursing home, her family tried for a month or more to provide care, even though they didn't have the special expertise necessary for mental illness, HIV and incontinence. After that failed, G.D. ended up in a mental hospital, imprisoned and unable to live a full life. When nursing home patients stay in their homes, discrimination may still rob them of adequate medical care. For example, studies document that African Americans tend to be in different and lower-quality homes than white patients. This kind of indifference can easily lead to Pennsylvania nursing home abuse and neglect. As a Philadelphia medical malpractice lawyer, I believe our elderly and disabled people deserve better.

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October 18, 2011

Family in Quadrangle Nursing Home Abuse Case Files Lawsuit Against Nursing Home

I've written several times before on this blog about the local nursing home scandal centered around the Quadrangle nursing home in Delaware County. In May, I mentioned that the family of Lois McCallister announced plans to sue the Quadrangle's parent company, Sunrise Senior Living, for negligence in the case. As a Pennsylvania nursing home lawyer, I was interested to see articles last week announcing that McCallister's daughter and son-in-law, Mary and Paul French, have filed their suit. According to the Delaware County Daily Times, the Frenches filed their complaint Oct. 12 alleging that Sunrise negligently failed to train workers, negligently kept the home understaffed and failed to follow state regulations intended to protect vulnerable residents. They seek more than $50,000 in damages, but the Frenches said at a press conference that they really want to ensure that no other nursing home resident suffers in the same way.

The Frenches began to suspect the abuse after McCallister made comments suggesting it and even showed physical injuries. Quadrangle employees told them the complaints were probably a result of McCallister's dementia, but Paul French bought a "nanny cam" disguised as a clock and put it in McCallister's room. The resulting video showed three Quadrangle employees physically abusing McCallister, refusing to let her get dressed and making fun of her as she got upset. All three of them -- Samirah Traynham, Ayesha Muhammed and Tyrina Griffin -- have been fired and are awaiting a Nov. 14 trial on charges of assault, harassment and more. McCallister has since moved in with the Frenches, but Mary French said her mother still begs family members not to hurt her as they say goodnight. Paul French said at the conference that since the story went public, he'd gotten a letter from the husband of another Quadrangle resident, thanking them for the intervention because he believes care in the dementia unit is now better than it had been for the past two years.

As a Philadelphia injury lawyer, I am not at all surprised. When a media spotlight is shined on a nursing home, it frequently gets its act together, if only for the cameras. In this case, however, the Quadrangle was answering to state regulators as well: The state Department of Public Welfare revoked its license in April. That action was partly a reaction to McCallister's abuse and the Quadrangle's failure to report it, but articles at the time outlined other violations, including withholding prescribed medication, giving unprescribed medication, failure to conduct required employee background checks and more. A few years before, Sunrise had been disciplined for allowing dementia patients to consume paint and antibacterial cleaner. All of these forms of Pennsylvania nursing home abuse and neglect threaten the lives of people who are supposed to be cared for. As a Philadelphia medical malpractice lawyer, I suspect the French family's lawsuit is right to ascribe many of the problems to cost-cutting -- but for $8,000 a month, homes should do better.

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October 10, 2011

Study Finds African Americans Less Likely to Get Flu Shots in Nursing Homes Than Whites

A recent article about race-based differences in care caught my eye as a Pennsylvania nursing home lawyer. According to HealthDay News, a study by Brown University has found that African American nursing home patients are 23 percent less likely than white residents to get a flu vaccination. In fact, the vaccination rate for all groups fall short of Medicaid and Medicare's target rate of 90 percent, at 82.75 percent. But that number for white residents was 83.46, while for African Americans it was 77.75 percent. Researchers suggested several explanations for the disparity, including a higher rate of refusal among African Americans as well as disparities in care.

The numbers come from annual patient records at 14,000 American nursing homes, during the flu seasons from late 2006 to early 2009. The results appear in the October issue of the journal Health Affairs. In a press release from Brown, study co-author Vincent Mor said the two racial groups often end up in different nursing homes, and that evidence suggests the ones serving African Americans are lower in quality. However, the researchers found a consistent difference in the groups' vaccination rates even within the same homes -- on average, African Americans were 15 percent less likely to be vaccinated than their white neighbors. Part of the problem could also have to do with vaccination refusal, the article noted; in 2008-2009, 12.88 percent of African Americans refused the vaccine, while only 8.93 percent of whites did. The authors suggested that future studies look into whether the refusals are influenced by the way the vaccination is offered.

The vaccine refusal rate is certainly interesting and worth following up on. But as a Philadelphia injury lawyer, I strongly suspect nursing home quality has much to do with the disparity. In my line of work, I see the effects of budget cuts on quality of care. When there are fewer staff members or less well-trained staff members, those who remain have to do more with less, and this can make it easy to forget or neglect important things, even to the point of Pennsylvania nursing home abuse. It can also make tempers shorter thanks to stress. All of this makes it more likely that something important but routine like a flu shot will be left by the wayside. This is especially a shame because the flu is particularly dangerous for older and immune-compromised people, who can easily be dehydrated by too much vomiting or diarrhea. Failing to address this is a dangerous type of neglect. As a Philadelphia medical malpractice lawyer, I hope homes are resolved to do better this flu season.

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October 4, 2011

Pittsburgh-Area Nursing Home Sued for Negligence Allegedly Leading to Death From Bedsores

As a Pennsylvania nursing home lawyer, I was interested to see a recent news item about a nursing home in the Pittsburgh region facing a lawsuit. According to the Altoona Mirror, the family of Alfred Pelligrino has sued the Valley View Nursing Home of Blair County, alleging Pelligrino died of complications from an improperly treated bedsore. Pelligrino suffered from Pick's disease, a neurological disorder that eventually leads to death, but does not put sufferers at high risk for pressure sores. Nonetheless, the family alleges that Valley View, which is county-owned but run by a private contractor, failed to take steps to prevent the sores, then failed to treat them before they caused an infection that led to kidney and heart failure. They are requesting payment of the medical expenses related to Pelligrino's illness as well as damages for his pain and suffering and their loss.

When Pelligrino entered the home in July of 2009, he was using a wheeled walker and could talk to nursing home staff. He had no skin problems at the time. The first pressure sores showed up in October of that year, and he was taken to a local hospital's wound clinic multiple times between then and January of 2010. The family transferred him to another home, the Hollidaysburg Veterans Home, in February of 2010, but the wounds did not improve. According to the lawsuit, Pelligrino's bedsores were so deep that they needed surgery to heal. The open wounds caused an infection that triggered congestive heart failure, which in turn caused kidney failure. The family's lawsut, filed on behalf of wife Virginia Pelligrino, charges Valley View with substandard care and failure to prevent the bedsores.

As a Philadelphia medical malpractice lawyer, I would be interested to read more about these allegations. Because Pelligrino was relatively mobile when he entered the home, he was tagged as a low-risk patient for pressure sores. It's possible that this lulled the home's employees into a false sense of security. It's also possible that he became less mobile after entering the home, due to restrictions on his movements, health deterioration or inappropriate medication -- which unfortunately is not uncommon. But whatever the reason, the risk of bedsores for nursing home patients is well known, and so is the relatively simple method of preventing them. Failure to take those steps is a form of Pennsylvania nursing home abuse and neglect (as would be the inappropriate drugs). As a Philadelphia injury lawyer, I hope any allegations of this kind of impropriety come out in the trial, so western Pennsylvania families can be warned about any potential risks.

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September 28, 2011

Creditors May Sue Directors of Pittsburgh Nursing Home With Questionable Finances - In Re Lemington Home for the Aged

As a Pennsylvania nursing home lawyer, I was interested to read an appeals court opinion about a historic "home for the aged" in Pittsburgh. The Lemington Home for the Aged was originally founded in 1883 as a rest home for elderly African Americans -- many of whom, at the time, were former slaves with limited means of making a living. The nursing home was relocated and expanded in 1983, after which it encountered financial trouble, staffing trouble and a series of health and safety violations that included the deaths of two patients in the home's care. After the home eventually filed for bankruptcy, a group of unsecured creditors filed a lawsuit against the home's directors and officers, alleging they breached their fiduciary duty by failing to act sooner. The district court dismissed In re Lemington Home for the Aged, but the Third U.S. Circuit Court of Appeals resurrected the claim.

The nursing home was unable to make as much money as expected in the 1980s and 1990s, in part because almost all its residents were on Medicaid. It received loans from the city of Pittsburgh, Allegheny County and private foundations, but ended up with $4 million in mortgage debt. To make matters worse, the federal government banned new admissions for a time in 1998, and the home's administrator declined to address staffing problems. A chief financial officer hired in 2002 failed to perform basic tasks; for example, Medicare bills were not submitted, and several employees quit because they were not paid. The home's Board lacked a treasurer during some of this time, ensuring no oversight. The administrator was frequently absent and not replaced. Furthermore, the home was cited for numerous safety deficiencies during this period, leading up to the June 2004 death of a patient whose resuscitation order was ignored, and December 2004 death that could have been caused by neglect.

The administrator proposed bankruptcy in May of 2004, but the board opted for a loan instead, eventually filing for bankruptcy 11 months later. A committee of unsecured creditors in that bankruptcy eventually filed an adversary proceeding against the home's directors and officers, alleging breach of fiduciary duty and deepening insolvency. The district court granted summary judgment to the home, finding that the fiduciary duty claim was barred and the deepening insolvency claim had insufficient support. The creditors appealed.

The Third U.S. Circuit Court of Appeals reversed that decision, finding that there were fact issues sufficient to let the case survive beyond summary judgment. Pennsylvania law allows directors to rely in good faith on information provided by their officers, who in turn must act in good faith in their jobs. The creditors argued that the administrator and the CFO breached their duties of due care; and that the board had breached its duty of due are by relying on the administrator, not intervening with the CFO, and diverting funds supporting the closed home to another home with an overlapping board of directors. The Third Circuit found that the creditors' evidence was enough to convince a reasonable jury that the administrator and CFO were not competent. This shows that the business judgment rule does not apply -- that is, the board cannot be said to have used reasonable diligence if they ignored signs that their officers were incompetent. It also disagreed with the district court that the in pari delicato rule applied. This rule bars plaintiffs from going to the courts over wrongdoing that they themselves had a part in. However, the Third Circuit said, the creditors have presented substantial evidence that the board was acting in its own self-interest, rather than for the good of the nursing home, when it moved the home's funding to another home its members also controlled. This is enough to present a genuine issue of material fact, the Third said, and thus it reversed summary judgment.

As a Philadelphia injury lawyer, I'm pleased that there will be some accountability for the board and the officers for apparent mismanagement of this home. A nursing home is not just a business or even a nonprofit; it is a home, and families entrust their vulnerable loved ones to it. By failing to take good care of basics like paying employees, the officers may have made Pennsylvania nursing home abuse or neglect more likely. After all, it's hard to provide good care if you have constant turnover and low morale. And of course, at least two deaths did take place at the home that may be traceable to mismanagement and neglect. As a Philadelphia medical malpractice lawyer, I hope those two families are able to get the answers they deserve.

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September 20, 2011

Eleven People at Two Western Pennsylvania Nursing Homes Develop Legionnaires Disease

As a Pennsylvania nursing home lawyer, I was concerned to read about an outbreak of a water-borne disease in two Pittsburgh-area nursing homes. According to the Pittsburgh Tribune-Review, residents at two facilities in Turtle Creek, in the Pittsburgh suburbs, were diagnosed with Legionnaires' disease last week. Eight people fell ill at LGAR Health and Rehabilitation Center; three more patients were diagnosed at Hamilton Hills Personal Care Home. Three of the 11 patients had to be hospitalized. Because the disease is caused by a bacterium in water and spreads easily, both homes were using bottled water while they attempt to fix the problem and await test results.

Legionnaires' disease is life-threatening, particularly for children and the elderly. Rates of death for people who develop it in hospitals are as high as 50 percent. It is an infection with the bacteria Legionella, which is inhaled as water vapor from sources like showers, air-conditioners and humidifiers. Once it's in the body, victims develop a high fever and pneumonia-like symptoms that can include vomiting, diarrhea, confusion and even kidney impairment. No deaths in the Turtle Creek outbreaks were reported as of Sept. 15. However, the Tribune-Review added another victim to the total that day, reporting that the patient had previously been diagnosed with pneumonia. A spokesman for the Allegheny County Health Department said the department had already seen 50 or 60 cases this year. Nursing homes are especially vulnerable, he said, because they may keep their water temperatures low to avoid scalding fragile patients. LGAR had already heated and flushed its water, WTAE reported, and had also installed a special copper ionization system to prevent future outbreaks.

It's pleasing to me as a Philadelphia medial malpractice lawyer that this nursing home is taking quick action to solve its Legionnaires' problem. Because this disease is transmitted by inhaling, it's not uncommon to see outbreaks affecting many, many people within range of the infected water supply. In a nursing home, a closed environment that patients rarely leave, this could mean an outbreak affecting nearly everyone in the home. And because the disease is especially hard on older people with health problems -- the kinds of health problems that require nursing home care -- a Legionnaires' disease outbreak could be life-threatening. Medical authorities agree that the disease is relatively easy to prevent, by keeping water supplies at safe temperatures. As a Philadelphia injury lawyer, I don't believe this is difficult for nursing homes to do -- and could make a huge difference for nursing home patients.

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