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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September 14, 2011

Arkansas Appeals Court Denies Charitable Immunity in Nursing Home Negligence Suit - McMullin v. Arkansas Elder Outreach of Little Rock

In my practice as a Philadelphia injury lawyer, I occasionally read about a legal doctrine called charitable immunity. We no longer have such a rule in Pennsylvania, but in neighboring New Jersey and other states, non-profit organizations can sometimes be immune from lawsuits -- no matter what they may be responsible for -- simply because they are incorporated as charities. That charitable immunity was tested in the Arkansas Court of Appeals ruling in McMullen v. Arkansas Elder Outreach of Little Rock, Inc.. In that case, Bobby McMullen sued Elder Outreach for alleged negligence when his father, William McMullen, was a resident there. Elder Outreach won dismissal of the lawsuit because it is not for profit, but the Appeals Court ruled that Elder Outreach waived the defense by failing to plead it early enough.

McMullen alleged that his father had suffered several injuries while under Elder Outreach's care, but the opinion did not go into details. The elder McMullen is now deceased. The younger one filed suit in August of 2006 and Elder Care answered in September that it is a nonprofit, but did not say it is entitled to charitable immunity. It moved to dismiss on that basis in October of that year. In his opposition to the motion, McMullen argued that Elder Outreach waived its charitable immunity by not citing it in the original answer. The motion was denied and discovery on the issue proceeded, and in March of 2009, Elder Outreach amended its 2007 for summary judgment on the basis of charitable immunity. This was granted, McMullen's post-ruling motions were denied and McMullen appealed.

Before the Arkansas Appeals Court, McMullen again argued that Elder Outreach had waived its charitable immunity argument by not bringing it up in its answer. This rendered it ineligible for charitable immunity, he argued, and thus summary judgment was incorrectly granted. The appeals court agreed. It noted that Elder Outreach not only failed to plead charitable immunity in its answer; it also failed to amend its answer according to the trial court's suggestion. Elder Outreach said it should be enough that it mentioned its nonprofit status in the answer; but the appeals court disagreed, noting that the Arkansas Supreme Court had already found this insufficient. Nor was its motion to dismiss a "responsive pleading" that can substitute for the answer, the court said. Thus, it reversed the trial court.

As a Pennsylvania nursing home lawyer, I'm pleased that McMullen will get his day in court. And that's all the court did at this stage -- allow McMullen a chance to prove his case. If Elder Outreach had been granted charitable immunity, it would have been able to dodge the lawsuit regardless of whether it had been negligent; the doctrine makes no distinction between cases with merit and frivolous cases. That's one reason why Pennsylvania and other states have abolished the charitable immunity doctrine. Applying it to nursing homes could potentially allow homes to commit Pennsylvania nursing home abuse and medical negligence with no consequences from the patients' families, although state regulators may still step in. As a Philadelphia medical malpractice lawyer, I'm pleased that our state gives victims the right to make their cases without overcoming the hurdle erected in this case.

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September 5, 2011

State of Iowa Nursing Home Inspector Refuses to Turn Over Nursing Home Statistics

As a Pennsylvania nursing home lawyer, I have been watching news about the state of Iowa's nursing home agency with some interest. Iowa is a battleground for proponents of safety in nursing homes because its governor, Republican Terry Branstad, is perceived by some as overly friendly with the nursing home industry. Branstad has taken campaign donations from nursing home companies, and during his first term as governor, he was cited by three separate state officials for failing to adequately regulate nursing homes. During this term, he has cited budget problems as a reason for cutting 10 Iowa state nursing home inspectors, bringing the office from 38 to 28, even though the positions were 75 percent federally funded. When the state Legislature restored the funds, the inspectors' department used them for something else. Now, the Des Moines Register reported Sept. 3, the Iowa Department of Inspections and Appeals, a state agency, has declined to turn over statistics it compiles to the Register or the ACLU of Iowa.

The Register asked the Department of Inspections and Appeals in July for answers to six questions about violations, time spent on inspections and uninvestigated complaints. The newspaper also requested two statistical reports the Department compiles for the federal Centers for Medicare and Medicaid Services. That agency adds the Iowa statistics to a federal database that is publicly available, and it also helps to fund the state Department. Saying the data belongs to the federal government, the Department declined to release the data. This got the interest of the ACLU of Iowa, which wrote a letter to the Department this month asking for the legal reasoning behind its refusal to release the information. In the letter, the ACLU's legal director noted that the federal government does not fund the Department completely and asked for letters, regulations or other rules the Department is relying on. CMS has given the Register the statistical reports in question, but the questions have gone unanswered. Answering them could tell readers how nursing home patients are faring in Branstad's era of looser regulation.

As a Philadelphia injury lawyer, I suspect the Department might not want to turn over the information because it could make the Department -- and the Branstad administration -- look bad. By cutting all of those nursing home inspectors, the administration was constraining the Department's ability to do its job. Thus, it would not be surprising to find that more problems at nursing homes are going unnoticed -- and thus, uncorrected. In fact, judging by Branstad's campaign comments that nursing home inspectors have a "gotcha attitude," it's possible that this was actually a goal for him. Regardless of what the voters of Iowa think of this, the dependent elderly and disabled people of Iowa deserve to be safe in their homes, not neglected or abused. That's why, as a Philadelphia medical malpractice lawyer, I hope the ACLU and the Register succeed in drawing attention to any problems they uncover under the Branstad administration -- both public attention and the attention of federal regulators.

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August 30, 2011

Oklahoma Appeals Court Upholds Judgment for Family of Veteran Who Died of Neglect - Lounds v. State

As a Pennsylvania nursing home lawyer, I know that keeping nursing home patients hydrated can be more difficult than it might sound. Older people can lose their sense of thirst, and some patients are disabled enough to need help with the mechanics of drinking. For these reasons, doctors advise caregivers that it's absolutely vital for patients to drink a certain amount of fluids per day -- but some nursing homes are too understaffed or uncaring to follow through. That was the allegation in Lounds v. State ex rel. Department of Veterans Affairs, a decision from the Oklahoma Court of Appeals. Lula Lounds sued the state-run nursing home where her father, David Shelton, died of causes including dehydration leading to kidney failure. The state raised issues on appeal including an alleged failure by Lounds to explain Shelton's care, but the court upheld a verdict for Lounds.

Shelton was 93 when he was admitted to the Norman Veterans Center, which is run by the Oklahoma Department of Veterans Affairs. The record does not show what medical conditions he had, but notes that he was supposed to be taking a diuretic and receiving at least 1,500 cubic centimeters of fluids per day. The record does show that the jury decided the center failed to provide that care. Just three weeks after his admission, Shelton had lost 20 percent of his body weight, and shortly died of congestive heart failure and acute renal failure caused by dehydration. At trial, evidence was introduced showing that the center failed to monitor Shelton's hydration, failed to respond to concerns raised by his family and did not follow its own policies. Lounds told the court she had not informed the center that her father was not taking a full dose of a diuretic, but said she never got a chance because an intake interview was promised but never completed. The center unsuccessfully moved to exclude testimony from her expert, Dr. Kaveh Kermanshahi, on the grounds that he is not a full-time nursing home doctor. Ultimately, the jury awarded $175,000 to Lounds, and found that more money was warranted although a tort awards cap made that impossible.

On appeal, the center argued that evidence for the verdict was insufficient and also that the trial court erred by admitting Kermanshahi's testimony. The center did not dispute the cause of death, but said Lounds failed to establish the standard of care she alleged the center did not meet. The appeals court disagreed. Lounds established a common-law standard of care in part through Kermanshahi, who the court said was clearly qualified as an expert. Furthermore, the center's medical director admitted in court that the center's care was not up to standards. Lounds also satisfactorily proved an alternative theory of statutory negligence under federal Medicare, Medicaid and veterans' laws that set standards for homes that take federal money. Finally, it dismissed the argument that $175,000 was an excessive award, noting that the money covers both funeral expenses and damages for the emotional pain of the family members.

In fact, the award seems rather small to me as a Philadelphia injury lawyer, given the damages cap. It's difficult to put a value on a person's life, but the award in question is designed not only to compensate his family, but also deter wrongdoing by the nursing home. In this case, the nursing home essentially admitted wrongdoing, but was prevented from facing higher damages by a damages cap -- even though the jury expressly said it would have awarded more. This may be public policy in Oklahoma, but I do not believe it is enough to deter Pennsylvania nursing home abuse. As a Philadelphia medical malpractice lawyer, I hope nursing homes in our state are paying better attention to the basic needs of their residents.

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August 22, 2011

Texas High Court Rules Nursing Home Claim Is Medical Malpractice Under State Law - Omaha Healthcare Center v. Johnson

As a Pennsylvania nursing home lawyer, I frequently address issues that cross the line between ordinary negligence, like that of a careless driver, and medical negligence. Medical negligence is also called medical malpractice, and it has become a controversial political issue. This in turn has led many states to pass special laws that apply to medical malpractice cases but not other types of negligence. One of those laws formed the basis of the controversy in Omaha Healthcare LLC v. Johnson, a Texas Supreme Court case finding that a nursing home negligence case fell within the purview of the state's law on health care liability claims. The ruling means Wilma Johnson missed her chance to file an expert report within 120 days of filing suit, and the high court dismissed her case.

Johnson is the sister of Classie Mae Reed, who died at the Omaha Healthcare Center nursing home after being bitten by a brown recluse spider. Johnson sued Omaha for negligently failing to inspect and clean the premises and take pest control measures. Omaha moved to dismiss on the grounds that Johnson's allegations were health care liability claims (HCLCs) and she failed to file the required expert report; Johnson maintained that her suit was about ordinary negligence. The trial court and the Court of Appeals both sided with Johnson. The appeals court ruled that Johnson's claim was a safety claim, and that Texas law requires safety claims to be directly connected with health care to quality as HCLCs. Omaha appealed.

On appeal, the Texas Supreme Court reversed both lower courts. Under state law, it said, HCLCs include claims "against a health care provider or physician for ... other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care[.]" Caselaw and Texas codes agree that meeting patients' fundamental needs, including effective pest control, is part of the services a nursing home provides. Furthermore, the court said, health care is defined in Texas law as "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's ... confinement." Johnson pleaded causes of action for failure to take ordinary care, the court said, but "the underlying nature of her claim" was that Omaha did not exercise the ordinary care expected of a nursing home. Thus, it was an HCLC and should have been supported with the required expert report. A dissent in the case said the majority's interpretation of the statute would cause confusion.

As a Philadelphia medical malpractice lawyer, I appreciate that the Texas court acknowledged the overlap between nursing home abuse and medical malpractice. The kind of abuse that involves overuse of prescription drugs, for example, could likely be called medical malpractice without any controversy. However, this ruling effectively adds another barrier to filing a claim for victims of nursing home neglect, because it includes more cases as HCLCs than Johnson and the lower courts apparently thought was appropriate. This is disturbing to me as a Philadelphia injury lawyer, because more barriers will undoubtedly discourage patients and their families from pursuing claims. This makes it easier for negligent homes to continue providing shoddy care, secure in their knowledge that they're unlikely to be held responsible.

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August 15, 2011

New Jersey Nursing Home Immune From Lawsuits as Charitable Organization - Griffin v. Bayshore Medical Center

As a Philadelphia injury lawyer, I was interested to read about a personal injury case against a nursing home that could not go forward -- not because the case was weak, but because nonprofit nursing homes are immune from many lawsuits in New Jersey. Edward Griffin et al. v. Bayshore Medical Center et al. brought two similar and related claims by two people injured in the same way at the Bayshore Nursing Home. Edward Griffin died of complications from a fall he took outside the home after he tripped on a protruding piece of sidewalk. Philomena Papa fell over the same protrusion about five month later and suffered permanent injuries. Papa, her husband, and the estate and son of Griffin sued the home and its associated corporate entities, but the Superior Court of New Jersey's Appellate Division found the home was immune under New Jersey's Charitable Immunities Act.

Griffin, 91, was on his way to visit his wife in the home when he tripped and fell on Oct. 16, 2007. The fall broke his C2 vertebra and landed him in the intensive care unit, where he stayed until his death the following Nov. 6. Papa, 86, was on her way to visit her husband in the home when she fell and broke several bones, including her kneecap and the orbit bone of one eye. She now relies on a cane. Both families brought their complaints in one suit naming Bayshore Medical Center, Bayshore Community Hospital and Bayshore Health Care and Rehabilitation Center. Bayshore Health Care Center is a nonprofit organization and part of a group of entities that also includes Bayshore Community Hospital. Bayshore Rehabilitation Systems Inc., however, is for profit. Despite the similar names and being located on the same road, the nursing home's parent entity said it was not related to Bayshore Rehabilitation Systems, and extensive discovery could not connect them. The trial court therefore granted summary judgment to the defendants and denied a cross-motion to file a new amended complaint.

Plaintiffs appealed, arguing that there was a genuine issue as to whether Bayshore Rehabilitation Systems made the nursing home a for-profit entity not entitled to protection under the Charitable Immunities Act. The Appellate Division disagreed. It noted that summary judgment was granted 13 months after the claim was originally filed, and after "a no doubt diligent search" by the plaintiffs that failed to come up with anything. The mere existence of a for-profit corporation with a similar name did not cast doubt on that status. Thus, there was no genuine issue of material fact to try. The court also denied their argument that they should have been granted leave to amend their complaint to allege gross negligence and recklessness, which would have given them an opportunity to avoid the Charitable Immunities Act. Gross negligence, the court said, is "wanton or reckless disregard for the safety of others" -- and it disagreed that failure to fix the protruding sidewalk qualifies as grossly negligent or reckless. The sidewalk protrusion of an inch and a half simply does not qualify, the court noted. Thus, it upheld both of the trial court's rulings.

As a Pennsylvania nursing home lawyer, I'm disappointed that these plaintiffs were unable to get their day in court. It should surprise no one that many of the visitors to a nursing home are older people themselves, because they are the loved ones of older people -- their spouses, brothers and sisters and friends as well as children and grandchildren. For older people, a trip and fall that a child might shake off can be life-changing, because it can cause injuries that rob them of their independence. As Griffin's family discovered, it can even be fatal if the victim is unlucky enough to fall on the head or neck. Leaving dangerous conditions like a tripping hazard unfixed is not Pennsylvania nursing home abuse as families normally think of it, but it is certainly dangerous and highly avoidable. As a Philadelphia medical malpractice lawyer, I'm glad Pennsylvania does not recognize a charitable immunities defense.

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