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June 17, 2014

The Effects of Sepsis on the Elderly


The American Thoracic Society met for their annual conference where findings from a recent sepsis study was presented. Sepsis infections also known as blood infections can cause whole body inflammation, organ decay, and in some severe cases death. Sepsis is particularly fatal among the elderly and those with weakened immune system such as infants and those with HIV/AIDS. At the annual conference the researchers of a recently published study in the Journal of American Medical Association discussed the deadly effects of sepsis and the increased rate at which emergency departments are seeing patients present with sepsis along other infections. The occurrence of sepsis has been steadily rising with about one of out every 10 patients being treated for sepsis in U.S. hospitals. Even more telling the study found that 52 percent of those who died in a hospital were diagnosed even if sepsis was not the direct cause of the patient's death. Dr. Vincent Liu, the lead study author indicated that the researchers were surprised at the number of deaths in which sepsis was present. Approximately as many as "1 in 2 patients dying in the US hospitals had sepsis." Further stating the need for improved care for sepsis patients in order to save many more lives.

Sepsis and the Elderly:

Sepsis deaths have been on the rise according to the U.S. Centers for Disease Control and Prevention. During a ten-year span from 2000 to 2010, the rate of deaths associated with sepsis infections increased 17 percent equating to a death toll of 135,000, an increase from 45,000 deaths. The Mayo Clinic defines sepsis as a "potentially life-threatening complication of an infection." Sepsis, which is the body's response to fighting a severe infection often caused by pneumonia, abdominal infection, kidney infection or a bloodstream infection such as bacteremia, can trigger inflammation throughout the body. The inflammation can prove deadly as damage to multiple organ systems can occur, if left to progress sepsis can also cause blood pressure to severely drop which may also lead to death. The longer a patient goes untreated with sepsis the lower the chances of survival. Early treatment is particularly important for those with advanced aging.

It has even been suggested that for those over the age of 65 who contract sepsis the long-term effects may include being susceptible to cognitive impairment. A 2010 study in the Journal of the American Medical Association authored by the lead researcher Theodore J. Iwashyna, MD, PhD, of the University of Michigan Medical School, found that sepsis may have a direct link to 20,000 new cases of dementia among those 65 years or older who contract sepsis each year in the U.S. While there have been advances in the treatment of sepsis prevention among the elderly is vital to their survival and overall quality of life. Vaccinating those with compromised immune systems against the flu and pneumonia is still one of the best practices available.

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April 16, 2014

Nursing Home Quality of Care Addressed in Latest OIG Report



The Department of Health and Human Services' Office of the Inspector General ("OIG") released the March 2014 edition of Compendium of Priority Recommendations, ("Compendium") which for the first time addressed the need for reform in nursing home care. The Office of the Inspector General is required under the Inspector General Act of 1978, to report to Congress problems, abuses, and deficiencies, which still need to be addressed, as well as the duties listed in the Consolidated Appropriations Act of 2014 which requires the reporting of the top 25 unimplemented recommendations that best protect the integrity of the Health and Human Services programs. It is common for OIG recommendations to require legislative, regulatory, or administrative action to become policy. Even Congressional appeal can be required, especially if financial backing is necessary to implement the new ideals. As I have reported before when it comes to elder abuse tracking the problem can be one of the biggest challenges. That is why as a nursing home injury specialist I was pleased to see the latest Compendium specifically addressing "Medicare Quality of Care and Safety Issues." Three areas of concern were included in the Compendium regarding nursing home reform, (1) improving quality of care plans and discharge procedures in nursing homes, (2) decreasing preventable harm and hospitalization of nursing home residents, and (3) improve emergency response and preparedness in nursing homes. While these recommendations may be incorporated in future elder abuse studies and possibly help to reform elder abuse rights, for many the help can come too late. If you or a loved one were seriously injured, neglected, or abused as a resident in a nursing home in Pennsylvania or New Jersey, our dedicated team of nursing home injury specialists may be able to help you get the compensation you deserve.

Improve Care Plans Improve Nursing Home Safety

Of the three proposed areas of nursing home reform, I found the quality of care plans and oversight to be of particular importance as it spells out the individualized plan of care that the resident is to receive. A care plan can assist in tracking any significant changes of the resident, including their mental, physical, and emotional health. The individualized care plan is also important as it details what kind of medication and what level of supervision the resident needs. For instance, a person who has dementia will need different care from someone who is bedridden, yet without proper supervision both resident's health could greatly suffer. Insufficient care plans are also costly to both the government and private nursing homes. The Compendium report found that Medicare paid approximately $5.1 billion in 2009 for stays in which the nursing home did not meet quality-of-care requirements. Oversight for care plans and implementation is also an area that needs to be focused and addressed on a state and federal level according to the report. Nearly 37 percent of nursing home care plans do not meet federal requirements and the report also found that services were not provided as specified by the care plans. Increased oversight alone has a tremendous opportunity to help decrease instances of low quality of care in nursing homes. To read more about the areas for improvement and suggestions in long term care by the Office of the Inspector General read the latest issue of the March 2014 edition of Compendium of Priority Recommendations.

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July 24, 2013

Federal Report Finds 'Huge Number' of Younger People Unnecessarily in Nursing Homes


As a Pennsylvania nursing home lawyer, I was interested to see a report criticizing the states for overusing nursing homes for disabled but younger people. According to McKnight's Long-Term Care News, a report from the Senate Health, Education, Labor and Pensions Committee found that states are not living up to a 14-year-old obligation to transition working-age and younger people out of nursing homes. The obligation was created by a 1999 court ruling in Olmstead v. L.C., which was based on the states' obligation to integrate disabled people into society under the Americans With Disabilities Act. Fourteen years later, the Senate HELP Committee investigation found that almost a quarter of a million of working-age disabled adults are in nursing homes. In fact, the committee's press release said, the number of institutionalized disabled adults is actually growing. It called for actions that would provide community care for more disabled adults.

The Olmstead ruling found that the ability to live within the community is a protected civil right for disabled people under the ADA. Thus, states were asked to transition non-elderly disabled people out of nursing homes if they were able to live independently with some help. But according to the committee report, states are reporting very little progress. Of all 50 states, the report said, only 12 are spending more than half of their Medicare funds on community-based care rather than institutional care. As the committee's press release notes, this is especially disappointing because institutionalization is more expensive than community-based care. It's also less popular among the patients themselves, the press release said. The federal report came less than a week before the federal government sued the state of Florida for "warehousing" disabled children in nursing homes unnecessarily.

In my experience as a Philadelphia injury lawyer, this problem is not limited to working-age adults or children. Frequently, disabled elderly people are able to live at home with some help, but the systems aren't in place to make that possible. This forces them to leave home, often against their will, and accept far more expensive institutional care under Medicaid. That's especially disturbing because nursing homes are not necessarily safer than living at home. Away from loved ones or neighbors who know them, and in the care of facilities that stretch their staffs too thin, patients can become victims of Pennsylvania nursing home abuse. And the abuse can lead to even more serious health problems, including expensive hospitalization or chronic problems that could truly require an institution. As a Philadelphia medical malpractice lawyer, I think Pennsylvania's disabled people, seniors or not, deserve better.

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July 9, 2013

Texas Supreme Court Rules Expert Report Required to File Any Medically Related Tort - PM Management-Trinity NC v. Kumets


I've written here before as a Philadelphia medical malpractice lawyer about the onerous requirements in many states for filing a medical malpractice claim. Medical malpractice is a common assertion in cases of Pennsylvania nursing home abuse, but it's so politicized that it's much more difficult to file a medical negligence claim than it is to file a general negligence claim. Among other things, plaintiffs in many states, including Pennsylvania, must file an expert's affidavit with the lawsuit to show that at least one expert believes the case has merit. A missing or inadequate affidavit is a reason for the dismissal of many medical malpractice lawsuits, and that was the problem in PM Management-Trinity NC v. Kumets, a Texas Supreme Court case that found an affidavit is needed even for a non-malpractice claim based on the same facts as the malpractice claim.

Yevgenia Kumets was admitted to a nursing home in Texas to recover from a stroke. While she was there, she suffered a second stroke. Some of her family believed that poor care she suffered at the home was responsible for the second stroke, though the opinion doesn't detail their complaints. However, she was discharged from the home after the family complained about her treatment, leading the family to believe she was retaliated against. The Kumets family sued with claims for medical negligence, ordinary and gross negligence, negligence with employees, breach of fiduciary duty and contract, fraudulent billing, violations of the state Deceptive Trade Practices Act and retaliation, as authorized by a statute. They filed an expert report, but the court ruled it was deficient and an amended report didn't cure the defects. The court dismissed all their claims except retaliation.

The two sides cross-appealed, arguing that various claims were or were not health care liability claims subject to the expert affidavit requirement. A divided Court of Appeals affirmed the ruling, saying a health care liability claim must involve "injury or death of the claimant," and the retaliation claim asserted only economic loss.

The Texas Supreme Court reversed that decision, siding with the dissent in the Court of Appeals. The high court had previously held that any claim based on the same underlying facts as a health care liability claim is also a health care liability claim, and thus subject to the expert report requirement. As the court had noted in a prior case, 2010'sYamada v. Friend, Texas law does not permit plaintiffs to circumvent the expert report requirement through "artful pleading" or splitting claims. It noted that it was not holding that all retaliation or discrimination claims are health care liability claims, or even that the breach of fiduciary duty claim brought by the Kumetes is such a claim. But the Kumetses did not appeal the dismissal of that claim, the court said. It reversed the Court of Appeals and remanded with orders to dismiss the retaliation claim.

As a Pennsylvania nursing home lawyer, I think this ruling will not do any favors to Texas patients who have suffered serious injuries from abuse or neglect in a nursing home. The expert affidavit requirement is expensive and time-consuming at a time when victims are already facing a deadline and, often, high medical bills and relocation costs related to the underlying abuse. It also inappropriately shifts extra burdens to the plaintiff, because no expensive expert is required to certify that the defense's arguments have merit. Applying it to claims that are not about medical malpractice makes it harder to recover fair compensation--and easier for nursing homes to continue providing shoddy care. As a Philadelphia injury lawyer, I don't believe it's good for anyone to protect bad nursing homes from consequences.

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April 27, 2013

Woman Denied Treatment after Collapsing in California Retirement Home.


The 911 call was replayed on all the major television news programs after it was released by the Bakersfield Fire Department. A Bakersfield nurse working at a central California retirement home repeatedly refused to give CPR to an 87 year old patient. The patient died as a result of the nurse's refusal to administer aid.

Throughout the distress call, the 911 dispatcher, Tracey Halvorson, urged the nurse to give the collapsed patient the most minimal CPR to keep her breathing until an ambulance could arrive at Glenwood Gardens. The dispatcher asked the nurse, "Is there anybody that's willing to help this lady and not let her die?"

The nurse's answer was hard to believe. She said, "Not at this time." The nurse refused to give her name. She claimed that the nursing facility's patient policy prevented her from either giving the CPR herself or even finding another nurse or bystander to do it. The dispatcher tried to get the nurse to summon paramedics at the nursing home to administer the CPR to the patient who had collapsed in the dining room. The dispatcher even asked the nurse to find another resident, a gardener or even a bystander who did not work at the home to help the stricken patient. Halvorson could be heard asking "Can we flag someone down in the street and get them to help this lady? Can we flag a stranger down? I bet a stranger would help her."

After the ambulance arrived, the patient was transferred to Mercy Southwest Hospital, where she was later declared dead. As a medical malpractice attorney, it's hard for me to believe that a retirement home had a permanent policy denying treatment to residents who are suffering an emergency and are struggling to stay alive. Nursing homes are meant to be secure places for the elderly and infirm to spend their golden years in comfort and safety. But when their very policies prevent administering the most basic type of CPR resuscitation, it makes me wonder whom the nurse was protecting--the nursing home or the patient. It's clear her loyalties were not divided.

Jeffrey Toomer, the executive director of Glenwood Gardens, said the nurse followed the home's policy and did nothing wrong. In a written statement, Toomer said, "In the event of a health emergency at this independent living community our practice is to immediately call emergency medical personnel for assistance and to wait with the individual needing attention until such personnel arrives. That is the protocol we followed." Toomer did say that the retirement home would conduct an internal review of the incident. For what it's worth, he also apologized to the victim's family.

Toomer said all residents of the retirement home are advised of the policy before they move into the home. He said that the adjacent assisted living and skilled nursing facility does not follow the same guidelines.

April 9, 2013

Alabama Supreme Court Rules Third Party's Signature on Arbitration Contract Nonbinding - SSC Montgomery CCOC v. Bolding


As a Pennsylvania nursing home lawyer, I've been pleased to see a recent series of state supreme court decisions denying arbitration in cases where the arbitration agreement was not signed by the patient or a legal representative. A recent example is SSC Montgomery Cedar Crest Operating Company, LLC v. Bolding, in which the Alabama Supreme Court declined to compel arbitration with Linda Bolding, attorney in fact and next friend of Norton Means. Means, Bolding's father, was admitted to a nursing home owned by the company, Cedar Crest, after experiencing heart problems in early 2012. Another daughter completed the paperwork including a mediation and binding arbitration agreement. When Bolding later sued Cedar Crest for negligence, the company attempted to compel arbitration, but the trial court denied the motion and the Supreme Court of Alabama affirmed.

Means was hospitalized in January of 2012 for heart attack and/or stroke symptoms. A few weeks later, he moved to Cedar Crest for rehabilitation and nursing services during his recovery. His daughter, Michelle Pleasant, filled out the paperwork for him, including a dispute resolution agreement waiving his right to a jury trial and agreeing to binding arbitration and mediation. The "parties" included in the agreement included the patient, a guardian, anyone who would have the right to bring a claim on the patient's behalf, and anyone who would have the right to bring a wrongful death claim. Pleasant also signed a section indicating that Means had been adjudged incompetent. After about a month and a half, Means was readmitted to the hospital for dehydration, malnourishment and an infection. Bolding sued Cedar Crest four days later for negligence. She argued that Pleasant had no authority to sign on Means's behalf and therefore the arbitration agreement was void. The trial court agreed, and SSC Montgomery appealed.

The Alabama Supreme Court noted that it has a distinct body of caselaw about whether and how to enforce nursing home arbitration agreements signed by residents or their families. A recent Eleventh Circuit review of one such case found that patients' representatives are bound by contracts that bind the patients themselves--but the high court found that Means was not bound by the underlying contract. It noted that it's uncontroversial that Means was not mentally competent when admitted. Prior cases have held that mentally incompetent nursing home residents are not bound by their representatives' arbitration agreements, the court said. Pleasant signed the arbitration agreement as a "family member" and incorrectly represented that she had the authority to sign on her father's behalf; it's undisputed that she had no power of attorney for him. Nor did Pleasant have apparent authority, the court said, because Means was not competent to agree to make her his representative. Thus, the Supreme Court affirmed the trial court.

As a Philadelphia medical malpractice lawyer, I'm pleased to see another decision forbidding enforcement of contracts that the signer had no authority to enter into. Courts in many states have been reluctant to enforce these arbitration contracts when the signer is not the legal representative of the beneficiary. This upholds well-established legal norms as well as benefiting families that have been victimized by Pennsylvania nursing home abuse. If someone claims to speak for a mentally incompetent person, the speaker should be required to show some proof that she has legal authority, because to do otherwise invites serious abuses. As a Philadelphia injury lawyer, I'm glad judges are giving these families a chance to prove their allegations in open court.

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March 13, 2013

High Court Rules Nursing Home Management Company Bears Substantial Blame for Death - Wilson v. Americare Systems Inc.


I was interested to see a recent decision about the culpability of a nursing home's management in the death of a resident. As a Pennsylvania nursing home lawyer, I believe nursing home management has a strong connection to the quality of the care at the home, because management decisions like staffing levels, training for new staff members and more has a direct effect on the staff's ability and willingness to give quality care. For example, some states have laws requiring a registered nurse to be on the premises at all times because an RN has more training and experience than the lowest-level aides. The advantages are clear, but the laws are necessary because not every nursing home company wants to pay the higher salary an RN can command. In Wilson v. Americare Systems Inc., the Tennessee Supreme Court reinstated a jury verdict, finding there was material evidence that management decisions played a role in a patient's death.

Mable Frances Farrar, a retired schoolteacher, was in good health at age 83 except for occasional constipation problems. She was hospitalized for four days in 2003 for constipation and spent two months afterward at a nursing home to regain her strength. She was then admitted to Celebration Way, the assisted living home that is the subject of this case. Her doctor prescribed a daily dose of the over-the-counter laxative MiraLAX and instructed the home to contact her if Farrar became constipated. Evidence showed that Farrar got far less MiraLAX than prescribed, including none at all one month. When she became constipated in May of 2004, the doctor ordered four enemas a day. She got one enema that day and none the next day. Her daughters visited the day after and requested an enema; the nurse who administered it told colleagues she was doing it so Farrar "would shit and shut up."

Unfortunately, this nurse administered the enema without checking Farrar for signs of an obstructed bowel, for which an enema is not appropriate. The enema perforated her colon, and she died at the hospital that day. Her daughters sued the nurse, the manager in charge, the owner of the home and its contract management company, Americare, which they alleged failed to provide adequate staffing levels, training or skilled personnel to handle Farrar's care. The jury found Americare 50 percent at fault for the death, for failure to provide sufficient personnel, and ordered $5 million in punitive damages. On appeal, however, the Tennessee Court of Appeals reversed, finding there was no material evidence that Americare's staffing decisions caused Farrar's death.

The decision was reversed again at the Tennessee Supreme Court, reinstating the damages. The high court found that there was sufficient material evidence permitting the jury to reach the verdict it reached. Deposition testimony established that the staffing was insufficient, that Americare knew about it and that it couldn't or wouldn't pay for the extra staff needed. The high court said the evidence was also sufficient to support the inference that the quality of care suffered as a result; testimony established that non-licensed staff members were asked to do work that nurses should do or the work went undone for lack of a nurse. Expert testimony sufficiently established that this violated standards of care, the court said. Thus, it found there was material evidence supporting the jury's finding, and reinstated the verdict against Americare.

As a Philadelphia medical malpractice lawyer, I strongly agree with the jury that the standard of care was not met in this case. Understaffing is, unfortunately, a well-known problem with nursing homes, particularly private homes that are under pressure to make a profit. Staff members cost money; well-qualified staff members like an RN cost a lot of money. As a result, homes may be tempted to cut corners on staff--but this sometimes means a substantial reduction in quality of care. When staff members in a nursing home are stretched too thin, they are more likely to forget things or skip things that seem unimportant. They also don't have time to notice small problems that could progress into serious forms of Pennsylvania nursing home abuse, such as bedsores, dehydration or medication mistakes. These are classic warning signs that I look for in my work as a Philadelphia injury lawyer.

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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.

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January 8, 2013

Appeals Court Rules Jury Instructions Proper in Death of Nursing Home Patient - Freudeman v. Landing of Canton


As a Pennsylvania nursing home lawyer, I know that families seeking justice and compensation through a lawsuit have a hard road ahead. Part of that process is proving that a death or serious injury took place because of the nursing home's negligence -- but when the death took place without a witness, this may be very hard to prove. In Freudeman v. Landing of Canton, Dennis Freudeman alleged that his mother, Dorothy Freudeman, was permanently brain-injured when a staff member at her nursing home gave her anti diabetic medication by accident. Dorothy Freudeman spent 15 months semicomatose after the mistaken medicine caused hypoglycemia, and eventually died. The Sixth U.S. Circuit Court of Appeals upheld a res ipsa loquitur jury instruction given because Freudeman couldn't prove how she got the medication.

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

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

As a Philadelphia injury lawyer, I'm always disappointed to see a jury's choices disregarded because of an arbitrary damages cap. A damages cap is much beloved by nursing homes and other potential defendants because it takes away the power of a jury to hand down the penalty it feels is appropriate. Regardless of the circumstances, the jury may not "send a message" any higher than the arbitrary number picked by the state legislature. However, the decision on the jury instructions is pleasing. When someone dies because of Pennsylvania nursing home abuse, that person may die in the care of the nursing home responsible for the death. That makes it very hard to independently verify what happened, since the only potential witness is adverse to the claim. As a Philadelphia medical malpractice lawyer, I appreciate that this jury instruction is available when the circumstances make presenting a fuller body of evidence impossible.

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November 21, 2012

Study: Norovirus Outbreaks in Nursing Homes Increase Risk of Death From Any Cause


As a Pennsylvania nursing home lawyer, I know that outbreaks of disease are distressingly common in nursing homes. Any situation where people live in close quarters increases the risk of a communicable disease, but in nursing homes, the situation is worse because the residents are usually elderly and not in peak health. As a result, the staff's failure to take basic precautions like washing hands can cause a deadly outbreak. Now, a new study from the University of Chicago School of Medicine shows that outbreaks of norovirus--a virus that commonly causes the stomach flu--in nursing homes is associated with a risk of death or hospitalization from any cause. While it's not surprising to find that norovirus causes norovirus-related hospitalizations, the study suggests that the virus may increase all risks to patients.

The study, reported in the online version of the Journal of the American Medical Association, was a retrospective analysis of two years' worth of Medicare and CDC records from nursing homes in Oregon, Wisconsin and Pennsylvania. (These were the states with the greatest number of outbreaks, which is bad news here in Pennsylvania.) During the duration of the outbreaks, the study found, hospital admission rates were 124 per nursing home per year, higher than the 109.5 per home per year rate when there was no outbreak. Death rates during outbreaks were 53.7 per home per year and 41.9 per home per year when there was no outbreak. Significantly, the study found that the risk of death disappeared when the home had a high number of registered nurse hours per resident, but increased when the RN time dropped to 0.75 hour per resident per day.

Researchers suggested that the risks may stem less from norovirus itself than from the disruptions caused by the outbreaks. As a Philadelphia medical malpractice lawyer, I agree that this seems likely. Many nursing homes--especially private, for-profit homes--are perpetually understaffed because staff is very expensive. This is unfortunate for patients, because studies consistently show that care is better and risks are lower with a higher staffing ratio, especially when skilled staff has more hours. A viral outbreak undoubtedly strains those stretched resources, causing a higher risk of things going undone or unnoticed. As a Philadelphia injury lawyer, I'm familiar with the results: missed or wrong medications, inattention to basic food and water and bedsore needs, dementia patients permitted to wander and more kinds of Pennsylvania nursing home abuse.

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November 6, 2012

Mississippi High Court Permits Brother to Substitute for Niece in Nursing Home Death Case - Jaquith Nursing Home v. Yarbrough


As a Philadelphia injury lawyer, I sometimes have the solemn and important responsibility of helping families sue over a wrongful death. A wrongful death is any death caused by someone else's negligence; that includes crimes, but also anything that the victim might sue over if he or she were still alive. Under state laws, however, not just anyone can sue for a wrongful death; the person bringing the suit must usually be a close family member or the person handling the deceased person's will. In Jacquith Nursing Home v. Yarbrough, a nursing home being sued over the wrongful death of Walter Yarbrough objected that his niece, Nellie Andrews, did not have the right to sue. The home moved to dismiss the case, but the estate of Yarbrough's brother Spencer Yarbrough moved to substitute, and the trial court permitted it. The Mississippi Supreme Court affirmed this ruling.

Walter Yarbrough had a severe mental impairment that made him dependent on care for a lifetime. His family cared for him until 1976, when he moved into the Jacquith Nursing Home of the Mississippi State Hospital. He died there in 2002, of causes not described in the opinion, but in a way that gave rise to a wrongful death claim by Andrews, who had handled his affairs just before his death. The initial 2002 filing named Andrews as Yarbrough's personal representative, but it wasn't until 2005 that she was appointed administrator of the estate. The home cited this in its 2008 motion to dismiss, saying Andrews lacked standing to sue as a niece or, in 2002, as an administrator. In response, the estate of Spencer Yarbrough, who had died in 2007, moved for a substitution. The trial court ultimately decided to deny summary judgment to the nursing home and grant the substitution, thus denying the home's attempt to end the case.

On appeal, the Mississippi Supreme Court affirmed, finding that Andrews was an "interested party" under state law, and thus entitled to bring the original action. Caselaw from the same court found that a wrongful death action may be brought by "all interested parties" who are heirs at law of the deceased person. This includes parties not expressly listed as heirs by the Mississippi wrongful death statute. Andrews was an heir at law of Walter Yarbrough; this was confirmed by the court that appointed her administrator of his estate. There were no higher-priority heirs in this case because Walter Yarbrough never married or had children. Thus, Andrews was permitted to file the original suit. Furthermore, the court noted, though Andrews had incorrectly stated that she was the personal representative for Yarbrough before he died, she had a good-faith belief that she was. She was playing that role on behalf of her uncle Spencer Yarbrough, who had been incapacitated. Thus, the Supreme Court upheld the trial court.

Though the question of standing to sue may seem like a side issue compared to the actual claim against the nursing home, it's actually vital. If the court had decided she had no standing to sue, it would have ended the case--regardless of the merits of the claim against the nursing home. As a Pennsylvania nursing home lawyer, I am sure that was the goal of the nursing home. Nursing homes do not like to let juries hear stories of Pennsylvania nursing home abuse, because when the facts are out, juries are often horrified at the conditions that led to the claimed injuries. As a result, they're willing to spend a lot of time and money fighting seemingly inconsequential battles. Part of my job as a Philadelphia medical malpractice lawyer is to ensure that such inconsequential questions don't end the case before its merits can be heard.

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October 16, 2012

Family Alleging Nursing Home Neglect May Make Ordinary Negligence Claim - Southwell v. Summit View of Farragut


As a Pennsylvania nursing home lawyer, I was interested to see a case in which a family was allowed to claim a nursing home was negligent, even though it was not allowed to sue for medical malpractice. In Southwell v. Summit View of Farragut, Robin Southwell sued Summit View for alleged negligence leading to the death of her mother, Claudia Adkins. The district court dismissed the case with prejudice, finding Southwell had not met the requirements of the Tennessee Medical Malpractice Act and had failed to state a claim under the Americans With Disabilities Act. But the Sixth U.S. Circuit Court of Appeals reversed on appeal, finding that while dismissal was correct on those counts, Southwell should be permitted to amend her complaint to include allegations of common-law negligence.

Adkins was deaf and blind and suffered from emphysema and cancer when she was transferred to Summit View from the University of Tennessee Medical Center on December 11, 2009. She died on October 6, 2010. The allegations about how Summit View contributed to Adkins's death were not repeated in the opinion, but Southwell filed suit in Tennessee state court about a month and a half after the death, alleging medical malpractice, wrongful death, negligence and a disability-related claim construed as an ADA claim. Because Adkins had lived in Florida prior to her death and Summit View was a Tennessee company, Summit View successfully removed the case to federal court. Summit View's motion to dismiss argued that Southwell failed to provide an expert's affidavit, proper notice or Adkins's birth date in support of the medical malpractice claim, and the district court agreed. It also dismissed the ADA count for failure to state a claim. Both dismissals were with prejudice; the district court closed the case.

Southwell's appeal argued that while the district court may have been correct, it failed to consider her common-law claims. The Sixth Circuit agreed. After ruling that diversity jurisdiction was proper, it found that dismissal of the Tennessee medical malpractice claims was correct. (Southwell did not dispute this.) It also agreed that dismissal of the ADA-construed claim was correct; the ADA does not provide the monetary damages Southwell sought for failure to provide an interpreter. However, it found merit in Southwell's argument that the district court should have addressed her negligence and wrongful death claims. Southwell alleged that Summit View failed to put Adkins in a proper room; failed to properly care for her emphysema and cancer; and failed to keep the supervising doctor informed about her condition. Southwell did not expressly plead these as failures of the non-medical personnel, the Sixth Circuit said, but she should be given a chance to amend her complaint to do so. Thus, it reversed dismissal and remanded to give her that chance.

This case has several aspects that interest me as a Philadelphia injury lawyer. The medical malpractice dismissal is very harsh; other courts have permitted medical malpractice plaintiffs to amend their filings to include previously forgotten documents. As a Philadelphia medical malpractice lawyer, I strongly suspect the Tennessee law requiring dismissal with prejudice was a politically motivated medical malpractice "reform" law. These "reform" laws are often designed to make it harder to sue medical providers, protecting their (and insurance companies') profits but leaving injured people in the lurch. It's also worth noting that Pennsylvania nursing home abuse is not always or even ordinarily medical malpractice. Nursing home employees are not all medical professionals, and many forms of physical abuse or neglect are nonmedical in nature.

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September 24, 2012

Pennsylvania Nursing Home Abuse: Out-of-State Case Highlights the Horrific Extent of the Problem


When you hop onto a Pennsylvania nursing home abuse blog, like this one, you're bound to find stories that may at first blush seem to create a confirmation bias. In other words, this blog is maintained by a high profile and widely respected Philadelphia nursing home neglect and abuse law firm. So it obviously contains information and stories that elevate the salience of nursing home abuse and neglect.

Thus, you might be led to believe that this blog is biased and that it "over reports" the extent of the problem.

But both objective statistics and good science reporting should refute this skeptical mindset.

Consider, for instance, a terrifying story from last week's news alone - which highlights the horrific and diverse extent of the problem.

Arlington Texas police are investigating claims that a woman's elderly mother had been abused at the Heritage Oaks Nursing Home on Gibbins Road. 83-year-old Mynez Carter is afflicted with Alzheimer's disease. She needs round the clock care. Her family became angry and suspicious, after they saw unexplainable bruises on the matriarch's body.

What was causing those disturbing bruises?

The woman's daughter, Freddie Johnson, suspected abuse at the nursing home.

To test her theory, Ms. Johnson surreptitiously installed a hidden camera in her mom's room to try to catch suspected abusers in the act. She later told news sources that, once she saw the hidden camera footage, "my heart started racing and I was horrified. And I was more mad than anything just to know this was going on with my mother..."

Ms. Johnson said the video clearly demonstrated that staff workers had been abusing her mom.

In one case, one of the workers pinched Carter's leg. In other case - a scarier example - one worker pulled her mom's hair and pushed on her head. Johnson and her siblings met with the administrator of Heritage Oaks, Jerry Warren. They also filed a police report, and Texas police are investigating.

One of the most disturbing - and also captivating - aspects of the story is the hidden camera.

We all want to know "what goes on" when we're not around. That's fundamental human curiosity at work. Many people who are even slightly dubious about a nursing home would likely be intrigued by what a "hidden camera" might have to say.

Hidden cameras are interesting devices, in that they reveal unfortunate truths about the limits of our trust. What does it say about our society that the children of an elderly woman in desperate need of care must spy on their mother, just to make sure that she is not getting abused?

This is a deep question with potentially worrisome answers.

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September 7, 2012

Pennsylvania Nursing Home Sex Abuse News: Sick Charges against Nursing Home Workers in Nearby Staunton


The Pennsylvania nursing home neglect and abuse attorneys here at Rosenbaum & Associates often hear about some awful and depraved acts. These horror stories strengthen our resolve to ensure justice and maximize safety for our clients. Unfortunately, many nursing home abuse victims lack perspective about just how pernicious and disgusting these crimes can be; as a result, they may fail to take swift and effective action to stop them.

Consider, for instance, recent accusations against employees at a nursing home called Envoy of Staunton. The situation at this nursing home is, to put it mildly, disgraceful.

Consider these points:

• One employee, 47-year-old Anthony Johnson, faces both criminal and civil charges in connection with accusations that he groped a 53-year-old patient and compelled a 43-year-old patient to have oral sex with him. One of the family members of the victims finally reported Johnson's actions to the police. Envoy finally fired the nurse's aide, but that punitive action obviously cannot undo the damage done to the assaulted patients.
• Meanwhile, Diane Renee Kline, a 41-year-old administrator and RN, stands accused of failing to report exploitation/abuse to Adult Protective Services. This may not seem to be as "serious" as the crimes that Johnson allegedly committed, but when nursing home watch dogs fail, the system basically collapses;
• 69-year-old Charles Williams, another Envoy employee, stands accused of penetrating a 71-year-old woman with an animate object. In that case, the nursing home immediately contacted police, but still... it does not speak well of a facility when multiple disgusting events occur.

An inspection of this nursing home exposed ten different deficiencies in areas as diverse as food safety, medication management, care and services, and infection control.

The crime of nursing home sexual assault in Philadelphia or elsewhere is grim and terrifying. Some victims may be too terrified to come forward to authorities or even to family members. Others may be too sick or cognitively impaired to report the abuse or even understand what's happening.

An aggressive, successful advocate for victims and their families

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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

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