Recently in financial exploitation in nursing homes Category

December 11, 2013

Protecting Older Citizens From Scammers This Holiday Season



Abuse of our older citizens in the United States comes in many forms, but one of the most insidious practices is through financial abuse. Elder financial abuse is the misuse, mismanagement, or misappropriation, of an older person's property or equity without their informed consent. An example of such a malicious act is when a grandchild for instance, takes their grandmother's social security check out of her mailbox without her knowledge or consent, and then cashes it. A 2009, study from MetLife, found that elder financial abuse is booming, with an estimated costs for older Americans ranging in the billions, some estimating the effect as great as $2.6 billion per year. While all older Americans are potential targets, the National Adult Protective Services Association (NAPSA) states that the "typical" victim of elder financial abuse is between the ages of 70 and 89, tend to be Caucasian, female, with a potential health or cognitive impairment. While most older Americans do not report elder abuse based upon fear of retaliation, fear of loss of personal freedoms, or fear of a change in their current living situations, over 90 percent of all reported elder abuse is committed by an older person's own family members. Most frequently their adult children, grandchildren, extended family and lastly a caregiver are often to blame for their deceptive motives. Similar methods can be used to determine whether one's loved one is being taken advantage of by a pop up charity, or telemarketers, as with unscrupulous family members who may not think twice about taking advantage of the older Americans in your life.

Financial exploitation can be conducted in numerous ways but the overarching themes are giving strangers your private information without first vetting them, believing that you can get something for nothing, and playing to a person's goodhearted nature. Suspicious spending is always a trigger for financial abuse. If your loved one who has been diligent about money all their lives suddenly begins making unusual purchases outside of their character, probe to see if they have shared their social security number or credit card information with anyone recently, be it over the phone, or in person, for any reason. If any checks bounce that normally are well within your older citizen's monthly budget, this could be a red flag that someone has been tampering with his or her finances. Particularly going into the holiday season or after tragedy strikes, pop up charities with detailed but bogus websites are ready to take an unsuspecting person's credit card information. Charity websites should end with .org not the typical .com if it is a reputable site, but that nugget of wisdom alone cannot keep you from being scammed. Especially hurtful with these type of scams, is that the person donating thinks they are doing a good deed, when in actuality they have just given their personal information to a scammer who later intends to use the donator's information for the purpose of identity theft.

The Internet is ripe with scams, particularly enticing to older Americans is the one that promises generic or lower costing medications all for a low monthly fee. When you take into account that one of the costliest parts of an older citizens monthly budget is their health insurance and prescription plans it is understandable as to why older Americans are preyed upon. Once you sign up the scammers now have access to your name, address, and credit card information. Even more unsettling is that older Americans who sign up are often being sent placebos or pills that exacerbate their prior medical conditions. Lastly this holiday season by implementing a quick screening of potential scammers you can avoid the "grandparent scam". The grandparent scam goes something like this; a grandparent picks up a call from a frantic voice. The voice on the other end of the phone says, "Hi Grandma, do you know who this is?" Once the unsuspecting grandparent gives a name, the scammer goes into a tearjerker of a story as to why they quickly need them to wire them money, be it payment for a car repair, overdue rent, or hospitalization. Most importantly is that the scammer will implore the grandparent to not tell their parents as it will get them into hot water. In order to ensure that your loved ones do not fall for the "grandparent scam" make it a policy to not answer an open ended question with the correct grandchild's name, and see if the scammer continues with their scripted response. Give the name of a pet or best friend, something easy to remember when you are being pressured to answer quickly. A great way for your parents or loved one to not be bombarded by such phone calls is to put them on the "Do Not Call" list by visiting www.donotcall.gov and to be suspicious of anyone that calls in a panic with a pressure sale.

Continue reading "Protecting Older Citizens From Scammers This Holiday Season" »

September 19, 2013

Courts and Not Arbitrators Have Jurisdiction Over Pennsylvania Nursing Home Lawsuit - Pisano v. Extendicare Homes, Inc.


I've written a lot here about the trouble with arbitration agreements in nursing home negligence lawsuits. Arbitration is a form of "private judging" that allows disputes to be resolved out of court. It's often touted as quicker and less expensive than going to court, and thus advantageous to both sides of the dispute. But for nursing home companies, arbitration is often the preferred solution because it allows them to hide allegations of serious abuse or neglect, away from public records. In some cases, arbitration companies have even been known to decide cases in a way that's most favorable to their customers--the nursing home companies, who send them the cases and sometimes pay all of the bill. That's why I was pleased to see Pisano v. Extendicare Homes, Inc., a Pennsylvania Superior Court case denying an attempt to take the dispute to arbitration.

Vincent Pisano was admitted to Belair Health and Rehabilitation Center in April of 2010. His daughter, Jamie Pisano, had his power of attorney at the time and executed an agreement saying any dispute would be resolved by mandatory binding arbitration. Some time later, Vincent Pisano died at the facility. His family alleges negligence by Extendicare (doing business as Belair) in a wrongful death lawsuit filed by son Michael Pisano, individually and as administrator of his father's estate. Jamie Pisano executed a disclaimer and renunciation in October of 2011, giving up all proceeds in a recovery for wrongful death, and is thus not a party to the case. In trial court, Extendicare objected to the court's jurisdiction, citing the arbitration agreement. The trial court refused to compel arbitration, however. The parties agree that the agreement is valid and binding, the court said, but the wrongful death action was outside its scope.

Extendicare appealed, but the Pennsylvania Superior Court affirmed. In Pennsylvania, wrongful death actions by the estate of the deceased are separate from survival actions by the deceased person's immediate family. In this case, the agreement in dispute is broad enough to cover tort claims as well as contract claims. In relevant part, it says the parties agree to arbitration of "all disputes arising out of or relating in any way to this Agreement or to the Resident's stay at the center [including] ...wrongful death." Thus, the case turns on whether a Pennsylvania wrongful death lawsuit is derived from Vincent Pisano's rights. The Superior Court ruled that it is not. Pennsylvania courts have consistently ruled that wrongful death and survival actions are two separate rights of action deriving from a single death, the court said, but not from the decedent's rights. Thus, because Extendicare's agreement is between it and Vincent Pisano, it does not bind his family, the court found.

This is good news for Pennsylvania families that suffered a wrongful death because of nursing home abuse or neglect. The Superior Court is not the highest court in Pennsylvania, but if its reasoning is adopted by higher courts, it will be settled law in our state that arbitration agreements don't bind family members who never signed them. And that's important, because as I mentioned, arbitration is often not friendly to families hurt by nursing home abuse in Pennsylvania. It takes away their right to settle disputes in open court, file appeals and more. If this case is appealed further, I will be interested to watch its progress.

Continue reading "Courts and Not Arbitrators Have Jurisdiction Over Pennsylvania Nursing Home Lawsuit - Pisano v. Extendicare Homes, Inc." »

June 5, 2013

Court Rejects Bid to Apply Third Party Arbitration Agreement to Nursing Home Lawsuit - GGNSC Omaha Oak Grove v. Payich


As a Pennsylvania nursing home lawyer, I'm very interested in the recent series of appeals court cases about whether a binding arbitration contract is valid. Very often, these cases go to trial because someone other than the patient, or his or her health care agent, signed the agreement. It's not usually clear that the third party who signed the agreement had any authority to represent the patient's legal interests, and when the patient, or his or her estate, later sues the nursing home, a court has to decide the issue. That was the case in GGNSC Omaha Oak Grove LLC v. Payich, in which the son of Nada Payich sued Golden Living Center of Sorensen. Ivan Payich signed the arbitration agreement when his mother was admitted, but Nada Payich had not been declared incompetent to manage her own affairs. A district court declined to compel arbitration, and the Eighth Circuit agreed.

Nada Payich executed a power of attorney on behalf of her son, Ivan Payich, on Sept. 3, 2009. The next day, Nada Payich was admitted to the Golden Living Center of Sorenson. No doctor had declared her incompetent. Nonetheless, Ivan signed the admission agreement on the line for Nada's legal representative, and also signed an arbitration agreement, adding "son" after his signature. Unfortunately, Nada Payich died after her admission to Sorenson. The appeals court's opinion doesn't go into the details of how Sorenson allegedly neglected or abused her, but Ivan Payich's later lawsuit alleges negligent care by the home that led to physical and mental injuries. After removing the case to federal court, Sorenson moved to compel arbitration, arguing that Ivan signed on Nada's behalf and was therefore bound by the arbitration agreement, or that Nada was a third-party beneficiary to the agreement between Ivan and Sorenson. The district court disagreed.

The Eighth U.S. Circuit Court of Appeal upheld that decision, finding no valid agreement applied to Ivan's lawsuit. On appeal, Sorenson argued only that Nada was a third-party beneficiary to an arbitration agreement between Ivan and Sorenson. Because Nada accepted the benefits of the agreement--care by Sorenson--her estate should be bound by them, the nursing home argued. The Eighth disagreed, saying there was no contract between Sorenson and Ivan, as required to find that someone is a third-party beneficiary. The arbitration agreement expressly names Nada as the contracting party, the court noted. It only provides signature lines for the patient herself or for her legal representative if she is incompetent. Though Ivan's choice to put "(son)" after his signature suggests that he intended to sign as Nada's representative, Sorenson abandoned the argument that he was acting as her representative. Thus, the Eighth upheld the ruling declining to compel arbitration.

As a Philadelphia injury lawyer, I approve. Arbitration agreements are not necessarily fatal to a Pennsylvania nursing home abuse case, but they're not usually helpful. Arbitration shields the proceedings from public view, which keeps the public from learning about the details of abuse or neglect allegations. To make matters worse, some arbitrators have been accused of essentially deciding cases the way the nursing home--the party that brings in their paying business--prefers. This stacks the deck against the plaintiff--the injured patient and his or her family--and prevents them from warning the public. As a Philadelphia medical malpractice lawyer, I believe everyone has a right to their day in a public and publicly accountable court.

Continue reading "Court Rejects Bid to Apply Third Party Arbitration Agreement to Nursing Home Lawsuit - GGNSC Omaha Oak Grove v. Payich" »

February 7, 2013

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


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

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

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

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

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

August 6, 2012

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


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

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

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

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

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

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

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

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

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

July 19, 2012

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


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

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

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

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

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

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

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

July 11, 2012

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


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

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

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

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

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

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

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

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

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

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


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

April 3, 2012

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


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

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

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

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

February 21, 2012

Philadelphia Nursing Home Worker Caught With Residents' Property During Traffic Stop


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

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

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

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

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.

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

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.

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

August 1, 2011

Hospices Receive Allegations of Neglect and Abuse Resembling Nursing Home Abuse


As a Philadelphia injury lawyer, I focus my nursing home abuse practice on fighting abuse of vulnerable elderly and disabled people in nursing homes. But according to a July 22 article from Bloomberg News, nursing homes aren't the only places where able-bodied people neglect and take advantage of the sick -- hospice care companies have come under fire. The article outlines allegations that some hospice companies, especially for-profit hospice companies, routinely neglect the medical needs of their patients. It also reports allegations that for-profit hospice companies have pushed hard to admit people who are not terminally ill or who are expected to live a long time, and keep them from being discharged while still alive, so they can maximize their payment. In many cases, these companies are being paid from Medicare and Medicaid, just like nursing homes.

One such company is Vitas Healthcare, a subsidiary of Chemed Corp. Robert Rogers of California is suing Vitas over the death of his mother, Thelma Covington, from sepsis brought on by gangrene in her toe. Medical records show that a Vitas doctor requested cleaning and ointment for the wound on Covington's toe in early July of 2008, but this was never carried out. In late July, the treatment was discontinued without having started. When she complained of intense pain, nurses gave her morphine and a sedative. A month later, nurses noted signs of gangrene, yet noted "interventions effective." A few days later, a nurse found the maggots and wrapped the toe in plastic. When Rogers visited and found his mother in severe pain, wheezing and passing out, he asked Vitas employees to admit her to the hospital, only to be told that "our job is not to prepare them to live." He called 911 and an emergency room doctor eventually removed 11 maggots from an open wound on Covington's toe. Covington died in the hospital two days later.

This lengthy article contains several other stories of alleged patient neglect at for-profit hospice companies. As a Pennsylvania nursing home lawyer, I wouldn't hesitate to sue over many of these allegations of neglect and elder abuse. The article describes companies whose motive is very clearly profit rather than patient care, with dubious medical diagnoses used to admit some patients and allegations that they were routinely understaffed to save money. Understaffing is a major cause of Pennsylvania nursing home abuse, because employees stretched too thin simply can't give all the patients the attention they need. As a Philadelphia medical malpractice lawyer, I hope lawmakers take note of this and take steps to ensure that laws against abuse and neglect apply to hospice care just as well as nursing homes.

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July 5, 2011

West Virginia Supreme Court Finds State Nursing Home Law Preempted by Federal Arbitration Act - Brown v. Genesis Healthcare Corp.


Last week, I wrote as a Pennsylvania nursing home lawyer about arbitration agreements in nursing homes. This is a hot topic right now, as more and more private homes require patients or their families to sign arbitration agreements as part of their admissions to the home. That was true in the several consolidated cases before the West Virginia Supreme Court in Brown v. Genesis Healthcare Corp. et al, decided June 29. In all three of the cases at hand, patients; family members signed arbitration agreements with nursing homes, and later sought to sue the homes for substandard care after the patients died. Prior to death, all three were admitted to hospitals with conditions including infection, dehydration, pneumonia, malnutrition and untreated pressure sores.

In each case, the nursing homes asked the courts to dismiss their claims and compel arbitration under the contracts. In two of the cases, the plaintiffs appealed from a dismissal; in the third, the trial court asked the Supreme Court to decide whether the Federal Arbitration Act preempted the West Virginia Nursing Home Act. The Supreme Court started by noting that families are generally under a lot of pressure and unable to shop around when choosing a nursing home. The Nursing Home Act prohibits patients and their representatives from waiving their rights to the courts. However, the Supreme Court said, the FAA preempts the state Act because the state Act does not provide "grounds for the revocation of any contract"; it applies specifically to nursing home arbitration contracts.

The court next looked at the plaintiffs' contention that the arbitration clauses should be voided as unconscionable. Here, they had more success. The Supreme Court found the clauses unenforceable because they were contrary to public policy; unconscionable in their presentation to the patients; and unconscionable in their content. The trial courts that found otherwise gave no reasoning for their decisions, the court said, and failed to consider plaintiffs' arguments. Finally, the court held that it did not believe Congress intended the FAA to apply to pre-injury arbitration contracts, and directed trial courts to find the arbitration clause unenforceable.

As a Philadelphia injury lawyer, I am pleased to see this issue being addressed by more and more state high courts. West Virginia rulings do not apply in Pennsylvania, of course, but this ruling touches on federal preemption, which is an issue affecting every U.S. state. Thus, this decision and others like it from other states can provide a guide for our courts when they consider mandatory nursing home arbitration contracts. As the court wrote, nursing home contracts are often signed under stress, and lock patients in to legalities they may not fully understand. By squeezing nursing home patients and their families for this kind of concession, the homes put themselves in a position to allow all kinds of Pennsylvania nursing home abuse without accountability -- and that's bad for society's most vulnerable people.

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June 27, 2011

Court Finds Mental Incapacity Not a Bar to Enforcing Arbitration Agreement- Abell v. Bardstown Medical Investors


As a Pennsylvania nursing home lawyer, I was interested to see a trial court decision in Kentucky that could be bad news for nursing home residents in that state. In Abell v. Bardstown Medical Investors, Inc., Christine Abell sued a nursing home where she had been a resident, Life Care Center of Bardstown, for gross negligence, intentional and wanton conduct and disregard for her safety, stemming from alleged denial of care and mistreatment. The home moved to dismiss the case because Abell had signed an arbitration agreement on admission. Abell opposed that motion, saying the contract was not enforceable because she had been mentally incapacitated when signing it. She also argued that the contract was unconscionable and therefore unenforceable.

After a bad fall, Abell, 74, went to the hospital with a vertebral fracture. At that time, she lived in an "independent living facility." After three weeks in the hospital, she was discharged to the nursing home. When she was admitted, a nursing home employee noted that Abell suffered from a major mental disorder and requested a mental health screening. There was no indication that Abell was generally of below-average intelligence or impaired in another way. The screening found that Abell had not previously been treated for a mental health problem and suggested that any problem she displayed could be related to an infection. Directly after the screening, she was given a total of 37 intake papers to sign, including the arbitration agreement.

Abell argued that the arbitration contract should not be enforced because she was physically and mentally compromised when she arrived at the home; and because it was just one of many contracts in a large stack of paperwork. The court rejected this idea. The arbitration contract was not procedurally unconscionable, it said, because it was not intentionally unclear about its meaning and consequences. The court also dismissed Abell's argument that she didn't have the mental capacity to sign contracts when she was admitted. Under Kentucky law, sickness and distress are not adequate to create mental incapacity; Abell had to show that she did not and could not understand what she was signing. The record doesn't show any diagnosis of mental illness or impairment, the court wrote. Furthermore, there was no such diagnosis after she was admitted, and the screening said she did not have a serious problem. Thus, the court dismissed the case and granted the motion to compel arbitration.

As a Philadelphia injury lawyer, I would be interested to know what Abell's major mental disorder was, if it was not any kind of impairment. Arbitration agreements are an ongoing issue in nursing homes, in part for reasons similar to the ones raised in this case. Older people who are candidates for nursing homes are often sick or suffering from mental problems, which makes large stacks of paperwork like the one presented to Abell legally troublesome. Furthermore, an arbitration agreement makes it more expensive and difficult to hold homes responsible for Pennsylvania nursing home abuse, and less likely that the case will get media attention and warn others away from bad homes. As a Philadelphia medical malpractice lawyer, I urge clients to carefully consider everything they sign before entering a home and ask as many questions as they like -- because the patient is, after all, the client.

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January 25, 2011

Study Finds Unnecessary Treatments for Dementia Patients Drive Up Medicare Costs


As a Pennsylvania nursing home lawyer, I was interested to see a study saying unnecessary treatments may be one reason for the growing cost of caring for the elderly. As the New York Times New Old Age blog reported Jan. 21, a study published in the Archives of Internal Medicine found that some of the most expensive treatments for late-stage dementia patients are also the most unnecessary ones. These included hospitalization and related after-care. In fact, author Dr. Susan Mitchell said in addition to being avoidable, these hospitalizations can be traumatic and confusing for dementia patients and may make them uncomfortable when antibiotics are used.

Mitchell and her colleagues at the Hebrew Senior Life Institute for Aging Research studied Medicare spending for 300 patients in greater Boston over 18 months. The largest share of the spending, 30 percent, went to hospitalization; 10 percent more went to skilled nursing administered after the hospital. Many hospitalizations were for pneumonia or related respiratory problems, which are common problems for dementia patients. However, Mitchell said, about 75 percent of the hospitalizations were for ailments that could have been treated just as well in the nursing home. In addition to being less expensive, leaving the patient in the home could also avoid the emotional trauma to patients who don't understand why they're being moved. And in patients near the end of their lives, palliative care may be preferred by some, the post said. Mitchell added that nursing homes may hospitalize patients they can treat on-site to shift costs from Medicaid to Medicare, which pays higher rates.

Any unnecessary medical treatment is a bad sign to me, as a Philadelphia medical malpractice lawyer. In addition to being expensive and traumatic, sending patients to the hospital unnecessarily puts them at risk of infection, medication mistakes and other problems that can arise from a change in caregivers. Even the emotional trauma can have significant effects on a patient with already compromised health, and physical injuries could send that patient into a health decline that could even end in death. If Mitchell is right that nursing homes do this to make a bit of extra money, that's even worse -- because it explicitly puts the nursing home's profits ahead of the best interests of the patients, their families and the taxpayers. Patients who believe their loved ones have been used as pawns in this way should talk to a Philadelphia injury lawyer right away.

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