Pennsylvania Nursing Home Abuse Attorney Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As a 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.

Continue reading "CDC Calls for Increased Strep Throat Investigations After Philadelphia Nursing Home Outbreak" »

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" »

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.

Continue reading "Study Finds African Americans Less Likely to Get Flu Shots in Nursing Homes Than Whites" »

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.

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

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.

Continue reading "State of Iowa Nursing Home Inspector Refuses to Turn Over Nursing Home Statistics " »

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.

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

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.

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

As a Philadelphia injury lawyer, I was pleased to see a large jury award in a case of alleged severe neglect in Pennsylvania's neighboring state of West Virginia. According to the Charleston Gazette, jurors in Kanawha County awarded $91.5 million to the family of a woman who died of complications from dehydration. Dorothy Douglas died at the age of 87 after spending three weeks at Heartland of Charleston. Attorneys for her son, Tom Douglas, alleged that parent company ManorCare Inc. (which is itself owned by an equity company called Carlyle Group) intentionally kept the staff to patient ratios at Heartland very low to save money. They alleged the very low staffing levels, and the extremely high turnover rates they produced, had a side effect of making it difficult to properly care for patients with difficulty eating and drinking on their own, like Dorothy Douglas.

Dorothy Douglas came to Heartland from her son's home, where she could walk and talk a little despite suffering from Alzheimer's, dementia and Parkinson's disease. The family was using Heartland as a short-term home before a spot at a home for dementia patients opened up. But in the three weeks Douglas was at Heartland, they said she lost 15 pounds, became unresponsive and was confined to a wheelchair. By the time she left for the new nursing home, she was covered in bruises, sores and scabs, and her mouth was encrusted from what the attorneys said was dehydration. She died in the hospital one day after the transfer. Attorneys for Tom Douglas said Heartland had a 112 percent turnover rate, in part because the low staffing levels made it hard to properly care for patients. Heartland attorneys said the death certificate for Douglas cited dementia, not dehydration, as the cause of death; and that she refused to eat or drink. West Virginia state inspectors cited Heartland for 28 deficiencies between February of 2010 and April of 2011, more than double the statewide average of 13. The Carlyle Group has said it will appeal.

As a Pennsylvania nursing home lawyer, I'm pleased that this case is so high-profile locally, because it might make Charleston-area residents think twice about putting their loved ones in a home that apparently has very high turnover. Unfortunately, it's not unusual for nursing home patients to have trouble getting nutrition and water. Older people sometimes lose their sense of thirst, which means nursing home staff members must urge them to drink and make drinking convenient. The situation is even worse for patients who have dementia that makes them forget to eat, or physical disabilities that make eating and swallowing difficult. In all of these cases, nursing home workers need to work closely with the patients to ensure they eat and drink, helping them when necessary. This is difficult work even under good conditions.

When a home is too understaffed for workers to do basic parts of their job, tasks like helping residents remember to drink water can fall by the wayside (since younger, healthy people can forget how important this is). At severe enough levels of understaffing, Pennsylvania nursing home abuse and neglect become much more likely. As a Philadelphia medical malpractice lawyer, I believe homes should be required to address these issues, preferably before they create a tragedy like this one.

Continue reading "Jury in Nursing Home Abuse Case Awards $91.5 Million to Son of Woman Who Died of Dehydration" »

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.

Continue reading "Hospices Receive Allegations of Neglect and Abuse Resembling Nursing Home Abuse" »

As a Pennsylvania nursing home lawyer, I frequently use witnesses to abusive behavior at nursing homes when my cases go to trial. Those witnesses are not always experts in what constitutes abuse; they are simply the people who happened to be nearby when the incident occurred. So I was interested to see a recent ruling from the Missouri Supreme Court saying the testimony of a non-expert witness is enough to prove that a nurse knowingly abused a patient. In Stone v. Missouri Department of Health Services, the complaint was actually from the nurse, Catherine Ann Stone, who was appealing a temporary disqualification from working that stemmed from allegations that she abused a patient.

Stone was a charge nurse at a nursing home; part of her job was to dispense medication to patients who needed it. In the incident underlying her case, she had to give medication to K.S., a female patient with dementia and mental disabilities who was known to become agitated and violent when receiving mediation. The instructions for K.S. said to leave her alone if this happened and try again later. On this occasion, after K.S. knocked a spoon away from her mouth and hit Stone in the shoulder, Stone asked a nursing assistant to restrain the arm. Stone then forced the spoon into the patient's mouth, pushing her head forcefully against the back of a wheelchair. A dietary aide who witnessed this said K.S. was upset and crying, and took steps to calm her down rather than remove her from the dining room, as Stone instructed.

The dietary and nursing aides reported the incident and Stone was suspended, then fired. The incident was also reported to the state, which concluded that the incident was abuse and Stone would be disqualified from working as a nurse in Missouri for 18 months. Stone filed an administrative appeal, which she lost. She then appealed to state trial court, which reversed the decision, saying expert testimony was needed to show that K.S. suffered any physical or emotional harm. The state appealed.

The Supreme Court started by noting that the "injury or harm" necessary to find abuse is not defined by the statute or caselaw. However, previous nursing home abuse decisions had established that there is a low threshold for finding injury or harm, and that the mere fact of striking a patient necessarily involves injury or harm. In those decisions, expert testimony was not necessary. The same applies here, the Supreme Court said. Laypeople may testify as to what they experienced, and no special expertise is necessary to determine whether someone with mental disabilities is suffering. The court also found that Stone committed the abuse knowingly, because a reasonable person would have known that it would be emotionally distressing for K.S. to be held down and force-fed her medication, especially because she was known not to like her medication. Thus, the Supreme Court reversed the trial court and authorized the state to disqualify Stone from nursing for 18 months.

As a Philadelphia injury lawyer, I believe the court was right to find that a lay witness is enough to establish whether an action constituted abuse of a person with dementia. I believe most people would be emotionally distressed if they were physically held down and force-fed medication. A person with mental disabilities is not likely to feel differently about it, although it may be harder for that person to express it. In fact, judging by the facts laid out in this opinion, K.S. reacted with clear signs of fear and distress: screaming, crying and attempts to move away. Improper restraints are a clear type of Pennsylvania nursing home abuse, because they restrict the patient's liberty and autonomy for the convenience of the nursing home's staff. As a Philadelphia medical malpractice lawyer, I believe nursing homes can and should do better, even if it requires them to take a little more care.

Continue reading "Lay Testimony Is Enough to Establish Abuse of Nursing Home Patients - Stone v. Missouri Dept. of Health Services" »