PENNSYLVANIA NURSING HOME ABUSE ATTORNEY BLOG

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As a Philadelphia medical malpractice lawyer, I was interested to read about a recent court ruling involving a suburban Philly nursing home. According to McKnights Long-Term Care News, a federal judge has dismissed a case against Neshaminy Manor, a home run by Bucks County. The lawsuit alleged that negligent practices at the nursing home led to injuries and eventually the death of Almira Will. Will depended on an oxygen tank, but her daughter, Lauretta Notwick, alleged that she frequently found the tank empty or turned off when she visited. The federal judge in the case granted a dismissal to Bucks County, ruling that the county is not legally responsible for injuries that do not stem from county policy, and that no policy appears to have led to Will’s injuries.

Will had end-stage chronic obstructive pulmonary disease, a condition that required her to have constant oxygen from a tank. She was admitted to Neshaminy Manor in August of 2008 after breaking her hip. Notwick’s lawsuit alleged that during visits, she frequently found her mother’s oxygen tank turned off or empty. She claimed that this was a result of a Bucks County policy saying staff “may” replace oxygen cylinders with needles halfway into the red zone that signals a need for a refill. The federal judge, Lynne Sitarski, ruled that the nursing staff may have provided poor care, but the Bucks County policy was not to blame because it left the replacement time up to staff discretion. Notwick also argued that staff negligence led to Will falling numerous times while at Neshaminy Manor, once breaking her hip again. But the judge ruled that Bucks County is not liable for this because there’s no evidence that allowing Will to fall was a result of county policy.

As a Pennsylvania nursing home lawyer, I hope this family continues to pursue the lawsuit. The article doesn’t make clear who exactly was sued, but typically, the nursing home is legally responsible for its employees’ behavior. With private homes, that’s true regardless of whether the employees were carrying out policy or simply making bad choices. The rules may change because this home is part of the Bucks County government, but in general, government employees are not immune to lawsuits. Of course, Notwick can also sue the employees who provided negligent care as individuals, but suing them as individuals does nothing to induce their superiors to make (or enforce) policies that avoid Pennsylvania nursing home abuse. Individuals also have far less money, which may be an issue for this family if they suffered significant financial losses from the bad care, such as high medical bills and funeral expenses. As a Philadelphia injury lawyer, I would be interested to see whether this ruling is revisited.
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As a Pennsylvania nursing home lawyer, I know that families seeking justice and compensation through a lawsuit have a hard road ahead. Part of that process is proving that a death or serious injury took place because of the nursing home’s negligence — but when the death took place without a witness, this may be very hard to prove. In Freudeman v. Landing of Canton, Dennis Freudeman alleged that his mother, Dorothy Freudeman, was permanently brain-injured when a staff member at her nursing home gave her anti diabetic medication by accident. Dorothy Freudeman spent 15 months semicomatose after the mistaken medicine caused hypoglycemia, and eventually died. The Sixth U.S. Circuit Court of Appeals upheld a res ipsa loquitur jury instruction given because Freudeman couldn’t prove how she got the medication.

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

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

As a Philadelphia injury lawyer, I’m always disappointed to see a jury’s choices disregarded because of an arbitrary damages cap. A damages cap is much beloved by nursing homes and other potential defendants because it takes away the power of a jury to hand down the penalty it feels is appropriate. Regardless of the circumstances, the jury may not “send a message” any higher than the arbitrary number picked by the state legislature. However, the decision on the jury instructions is pleasing. When someone dies because of Pennsylvania nursing home abuse, that person may die in the care of the nursing home responsible for the death. That makes it very hard to independently verify what happened, since the only potential witness is adverse to the claim. As a Philadelphia medical malpractice lawyer, I appreciate that this jury instruction is available when the circumstances make presenting a fuller body of evidence impossible.
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As a Pennsylvania nursing home lawyer, I’ve kept a close eye on the issue of overuse of antipsychotics in nursing home patients. These powerful drugs are intended for use in people with serious mental illnesses, but they became popular in the past decade for “off-label” use to control the symptoms of dementia. That popularity plummeted more recently, when medical studies began showing an elevated risk of death or serious health problems like strokes among elderly dementia patients taking the drugs. A recent investigative series of stories from the Boston Globe reports that 185,370 Medicare and Medicaid patients took antipsychotics for inappropriate reasons in 2010, down dramatically from 237,510 in 2005. However, the data from the federal Centers for Medicare and Medicaid Services also showed that those homes that do continue using the drugs inappropriately tend to be understaffed.

The newspaper compiled a database using the federal data, which allows families considering nursing homes to look up each home’s use of antipsychotics. The database excludes homes with fewer than 50 residents, but includes 15,600 homes of 50 or more, from across the United States. Of those homes, 21 percent were giving inappropriate antipsychotic medications to a quarter of their residents or more. Even more tellingly, the newspaper found “a clear link” between low staffing levels and high use of antipsychotics. Homes that most often used the antipsychotics off-label had fewer registered nurses, who direct medical care, and nurses’ aides, who provide much of the hands-on care. The newspaper suggested that this is because lower staffing levels make it hard to find the time necessary to control the negative behaviors of dementia without drugs. By contrast, antipsychotics frequently have a sedative effect, leading some to call them “chemical restraints” in an analogy to the physical restraints homes once used.

This is a form of Pennsylvania nursing home abuse, as any Philadelphia injury lawyer will explain. All nursing home patients deserve to have their basic dignity respected, and that means not drugging them into insensibility or physically restraining them just because it’s convenient for the staff. Nor should this be done for the sake of profit for the nursing home’s parent company, which can save money on staffing by drugging patients and charging the cost of the drugs to Medicare or Medicaid. (Indeed, the Globe found homes that overused antipsychotics tended to have more patients enrolled in Medicaid.) But perhaps the worst thing about the practice of using antipsychotics in elderly dementia patients is that the drugs’ known side effects include a risk of death. In fact, the risk is clear enough that the FDA has ordered its strongest warning on the drugs’ labels, telling patients and doctors about the increased risk of stroke and serious cardiovascular problems for elderly patients with dementia. As a Philadelphia medical malpractice lawyer, I strongly suggest that patients and families trying to make a well-educated decision about nursing home care take advantage of the Globe’s report to determine which homes near them are misusing these powerful drugs.
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I’ve written here many times as a Pennsylvania nursing home lawyer about the dangers of overusing antipsychotic drugs in nursing homes. Sometimes called “chemical restraints” because the practice effectively prevents patients from being physically or mentally active, antipsychotics were once commonly used off-label in dementia patients. Their use has been curbed somewhat since 2005, when the FDA issued its strongest possible warning that studies have associated atypical antipsychotic use in the elderly with increased risk of death; the agency extended that warning in 2008 to all types of antipsychotics. Nonetheless, a federal report last year found the drugs are still used more widely in nursing homes than they should be, with numerous Medicare recipients getting the drugs for no medically accepted reason or in a way that violates federal standards.

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

As a Philadelphia medical malpractice lawyer, I applaud Grassley and the no doubt many others who have been working to keep this issue front and center. Because of their illness, nursing home patients with dementia can rarely speak for themselves, so it’s vital that we speak for them. That’s particularly true for patients who are receiving antipsychotics unnecessarily, because a side effect of those drugs is sedation. (Indeed, it’s possible that sedation is the goal of homes that overuse the drugs.) Like other powerful prescription drugs, however, antipsychotics carry even more serious side effects, including large weight gain, diabetes, sudden cardiac death, stroke and more. That’s why knowingly misusing the drugs in elderly people, just to avoid taking the expensive staff time necessary to intervene in their behavior, is a form of Pennsylvania nursing home abuse.
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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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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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I’ve written here several times as a Philadelphia medical malpractice lawyer about the use of antipsychotics in nursing home patients with dementia. The FDA has not approved antipsychotics for use controlling outbursts from patients with dementia, but a May study from the federal Department of Health and Human Services found that 88 percent of antipsychotic prescriptions filled by Medicare were for patients with dementia. Critics say this exposes the elderly patients to unnecessary health risks, while advocates say they’re the best option available and the risks are overstated. On June 1, CNN.com ran op-ed articles on both sides of the debate, authored by HHS inspector general Daniel Levinson and psychiatrist Daniel Carlat.

Levinson said his office began investigating the use of atypical antipsychotics, a newer and more expensive generation of drugs, after a member of Congress asked about their use. Of the nursing home patients taking atypical antipsychotics under Medicare, he wrote, one-fifth were taking them in a way that violated Medicare standards. About half of the claims shouldn’t have been covered at all, he said. This was especially concerning, Levinson wrote, in the wake of multiple settlements by drug companies for illegally marketing atypical antipsychotics and in one case, paying kickbacks.

In his piece, Carlat acknowledged that illegal advertising happens. Nonetheless, he defended atypical antipsychotics as less dangerous than studies have suggested. Many of the causes of death named in the studies, he said, are the most common causes of death for dementia patients overall. And despite being prescribed off-label, the drugs are effective at calming dementia patients who get confused and agitated as their memories and abilities fade. Geriatric psychiatrists try non-drug interventions, he said, but they do not always work.

As a Pennsylvania nursing home lawyer, I wonder how much of Carlat’s article applies to a typical nursing home patient. The trouble with antipsychotics in dementia patients is frequently that their doctors are prescribing automatically, without a real examination. The doctors in question may not be psychiatrists or geriatric specialists, and nursing homes know that Medicare-funded drugs are quicker and less expensive than behavioral interventions. For this reason, I hesitate to believe that atypical antipsychotics are not misused. As a Philadelphia injury lawyer, I also wonder whether Carlat glossed over the risks of atypical antipsychotics. The drugs’ increased risk of cardiovascular and metabolic complications has led to the FDA ordering a black box warning for the labels, the strongest available. And using antipsychotics as off-label sedatives may cut down on yelling and physical attacks, but keeping patients too drugged to experience life is a form of Pennsylvania nursing home abuse.
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As a Philadelphia medical malpractice lawyer, I was interested to see a new study suggesting that hospitalized nursing home patients may need an advocate even more than previously thought. As HealthDay News reported April 18, a new study by Northwestern University has found that older people can suffer short-term memory loss when they go into the hospital. Researchers found a temporary reduction in cognition among one-third of the patients they studied as they were being discharged from the hospital, but a majority of those problems disappeared in a month. They cautioned the public that it’s vital for seniors to have a family member or other advocate present on discharge, so vital medical instructions aren’t forgotten or lost.

The researchers studied 200 people ages 70 or older who lived alone and didn’t have any diagnosis of cognitive problems like dementia. On the day the patients were discharged, the team administered tests measuring their reading and writing skills, orientation, calculation and comprehension. The results showed problems with nearly one-third of the patients. A month later, the researchers administered the tests again. Of those whose earlier test results showed problems, 58 percent no longer had results showing reduced cognition. Lead author Dr. Lee Lindquist said this suggested that some seniors may be better off with help understanding and applying discharge instructions. That kind of help could reduce the need for more hospitalization in the future caused by confusion or missed instructions about things like medication.

As a Pennsylvania nursing home lawyer, I am particularly interested in this as it applies to nursing home care. Patients in nursing homes are supposed to have advocates already on staff — aides and nurses who are in charge of medication, nutrition and other needs. But all too often, nursing homes fail their patients by mixing up instructions or neglecting important medical needs. To prevent this kind of Pennsylvania nursing home abuse, I believe it’s important for families to stay involved — at all times, but especially when a loved one is hospitalized. By advocating for their disabled relatives at a time when they may not be able to advocate for themselves, families can prevent neglect and abuse leading to more health problems or even death.
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I’ve written here several times before, from my perspective as a Philadelphia medical malpractice lawyer, about the use and overuse of atypical antipsychotics in nursing home patients. Although antipsychotics are not approved for use in controlling dementia symptoms, nursing home staff members use them for this purpose anyway because they believe it helps control difficult or violent behavior. However, research over the past few years has found that atypical antipsychotics — the drugs most often used for this purpose — increase risk of death in elderly and demented patients, which has led to a dramatic drop in their use. Now, a new study published in the Canadian Medical Association Journal finds that typical antipsychotics, which may be used as an alternative, are no better.

The study was conducted using nursing home records for 10,900 patients in British Columbia. Scientists looked at all psychotropic drugs for patients 65 and older admitted to nursing homes between 1996 and 2006. That included roughly equal proportions of patients getting atypical and typical antipsychotics, as well as even more patients receiving antidepressants or benzodiazepines. After looking at outcomes for each class of patients, the researchers concluded that there was actually a lower risk of death for users of atypical antipsychotics than for patients in the other three categories. A geriatric psychiatrist from the University of Rochester, who was not connected to the study, said it was well designed, but more research was needed before doctors should change their prescribing practices.

As a Pennsylvania nursing home lawyer, I’m disturbed by these conclusions, because they suggest that no psychiatric drug is especially safe. Use of atypical antipsychotics has dropped since they got a black box warning about death, but it looks as if the clearest alternatives, older antipsychotics, carry at least an equal risk. That’s unfortunate because nursing homes frequently use them — in my opinion as a Pennsylvania injury lawyer, overuse them. Using drugs to control dementia patients’ behavior may be tempting, especially for homes that have cut staff to save money and don’t have the resources to handle difficult patients. However, these “chemical restraints” also leave them in a drugged state and puts them at risk of death and serious illness. I believe this is a form of Pennsylvania nursing home abuse, and families that have suffered an injury as result should hold them legally responsible.
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As a Pennsylvania nursing home lawyer, I’ve followed the controversy over using antipsychotic drugs to control the behavior of patients with dementia in nursing homes. Much of the media coverage of this has focused on the use of Risperdal, but on March 10, 37 states announced that they’ve settled a lawsuit over another antipsychotic, Seroquel (quetiapine), with manufacturer AstraZeneca. The lawsuit accuses AstraZeneca of deceptive marketing, in part because Seroquel is not FDA-approved for treating any disorder other than schizophrenia, bipolar disorder and sometimes depression. Even more alarmingly, the manufacturer was accused of hiding negative results from studies on Seroquel’s safety and effectiveness, and failing to disclose side effects. It will pay $68.5 million to 37 states; seven others are still pursuing separate lawsuits. The settlement is on top of a $520 million settlement AstraZeneca paid to the federal government last year in a similar lawsuit.

Doctors may prescribe medications off-label for any purpose they wish, but manufacturers are forbidden by law from promoting them for any unapproved purpose. The lawsuit against AstraZeneca alleged that it promoted Seroquel for Alzheimer’s, dementia, anxiety and unapproved forms of depression. It also alleged that the company suppressed information about the potential for patients taking Seroquel to develop diabetes and high blood sugar. In the federal lawsuit, an email was made public in which one company official praised burying a negative scientific study as “a great smoke and mirrors job.” In addition to paying the states, the company also agreed in the settlement to stop providing financial incentives for off-label marketing; ask salespeople not to promote it to doctors who are unlikely to prescribe it for an approved use; and publicize any payments to doctors on a website.

This settlement is good news for patients, families and Philadelphia medical malpractice lawyers like me. Misuse of antipsychotics in nursing homes is a serious and potentially widespread problem. Antipsychotics are powerful neurological drugs that carry significant side effects and interact with other drugs. In addition to diabetes and high blood sugar, Seroquel’s concerning side effects include cardiovascular problems, increased appetite, increased risk of death, increased risk of seizures and pronounced sedation. In fact, critics call use of antipsychotic drugs in dementia patients “chemical restraint” because they can leave the patients incapacitated and uncommunicative. This takes away the need for understaffed nursing homes to control dementia patients’ behavior — but it also takes away their ability to fully experience life or communicate when something is wrong. In my opinion as a Philadelphia injury lawyer, this is a form of Pennsylvania nursing home abuse that patients should not have to endure.
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