Recently in nursing home neglect Category

March 3, 2014

Competency and Arbitration Clauses


I have spoken extensively about nursing home arbitration clauses often placed within nursing home admission papers. An arbitration clause has the power to dictate which causes of action can go before a jury and which must go through arbitration, a more discrete out of public view dispute resolution option. Arbitration agreements are construed according to contract law, requiring a valid offer, acceptance, and consideration. The recent case brought before the Pennsylvania Court of Common Pleas, Tyler v. Kindred Healthcare Operating, the court overturned the defendant's preliminary objections to plaintiff's wrongful death and survival complaint. The court held that the meeting of the minds could not be established when the decedent signed her admission papers for admittance into Kindred Healthcare nursing home. Further finding that the decedent's daughter was also unable to act as the decedent's power of attorney as the decedent had not given away any rights nor did the decedent authorize any family member to make any legal decisions on her behalf.

In Tyler v. Kindred Healthcare Operating, plaintiff Avenia Tyler brought a wrongful death and survival action against two nursing homes, Kindred Healthcare Operating, Inc. ("Kindred"), and St. Francis County House ("St. Francis"). Plaintiff alleged that decedent Ruth McNear, had developed necrosis, advanced pressure sores on her right lower extremity, and a second fracture to her right femur which required surgery. Plaintiff further stated that Ruth McNear had passed away due to complications from the second leg fracture and subsequent surgery. At the time decedent's death, McNear was in complete control and care of defendants. When proper care is taken bedsores should not be present in residents of nursing homes. Part of care plans for residents that have limited mobility is a reposition of the resident approximately every 2 hours. If repositioning continues to be overlooked or ignored, often as a means to save limited time in understaffed facilities, a resident can suffer bedsores, urinary tract infection, and even a wrongful death. As part of the Federal Nursing Home Reform Act of 1987, all nursing homes that receive federal funding are required to have "sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." Bedsores are the most common form of negligent care given in nursing homes. It takes time and pressure for a bedsore to begin to form and even more time for the pressure wound to become infected.

Ultimately the court held that the arbitration clause could not be enforced as the decedent was not competent at the time of signing and therefore there was no meeting of the minds when the contract was executed. Medical records note at the time of signature decedent was disoriented and her thoughts were cloudy. While a resident at the nursing homes, nurses noted that decedent was both confused and impaired. St. Francis the second nursing home for the deceased Ruth McNear wanted to enforce the arbitration clause despite the late McNear state of confusion. The court held that the decedent's daughter could not act as her mother's agent simply because there is a familial relationship. Instead, the court held that the decedent would have had to given Lynette, her daughter power of attorney or at the very least the authority to make legal decisions on her late mother's behalf. Accordingly, the court held in favor for the plaintiff finding that the survival action could not be severed from the wrongful death action.

Continue reading "Competency and Arbitration Clauses" »

September 5, 2013

Pennsylvania Counties Increasingly Consider Selling Their Public Nursing Homes


Because I practice nursing home abuse law in Pennsylvania, I was interested to see that publicly owned nursing homes are rapidly dwindling in our state. According to the Pocono Record, Monroe County's government is considering selling its publicly owned Pleasant Valley Manor, in part because it's running at a loss. To the west, Franklin County is already in the process of selling its nursing home, Falling Spring Nursing and Rehabilitation Center. One Monroe County Commissioner, Charlie Garris, noted that the trend in Pennsylvania counties is increasingly toward selling county-owned homes. But residents of both counties expressed concerns about the quality of care in the homes as they transitioned from public, nonprofit ownership to private, for-profit ownership. The news comes on the heels of an announcement from the Catholic Archdiocese of Philadelphia that it will sell several nursing homes in greater Philadelphia.

In Monroe County, the commissioners are considering a sale because the home is losing money. Pleasant Valley Manor lost $940,000 in 2012 and had already lost the same amount in the first six months of 2013. Garris noted that a supplier of food to the home once withheld its deliveries until it got paid, suggesting that the home's administrators were behind on payment. The only commissioner to publicly oppose a sale is Suzanne McCool, who said the county has a moral obligation to take care of elderly and infirm residents. The article said "there's a fear" that a for-profit home might not take indigent residents.

In Franklin County, Commissioner Robert Ziobrowski said county-run homes are no longer needed for indigent Pennsylvanians, because Americans can now rely on Medicare and Medicaid as well as private insurance. They have chosen two finalists from among the 10 private companies that offered to buy Falling Spring. But according to the local newspaper, Franklin County residents are concerned that private ownership will result in a drop in quality of care.

I share that concern. In my experience pursuing nursing home neglect lawsuits in eastern Pennsylvania, there is genuine cause for concern when nonprofit homes are sold to for-profit companies. As I noted in my blog post about the Catholic Church's sale of homes, studies show that nonprofit homes do better on multiple measures of care, including staffing ratios, number of bedsores, citations from government regulators and more. Indeed, one study concluded that statistically, for-profit ownership leads to an additional 7,000 pressure sores a year. The difference may be attributed to things like attempting to get along with fewer employees or employees who are not well trained, both of which can lead to overwhelmed employees who cut corners or forget important tasks. Nursing home abuse is devastating and sometimes fatal; Pennsylvanians should think very carefully before doing anything that could lead to more of it.

Based in Philadelphia, Rosenbaum & Associates represents clients across eastern Pennsylvania who have suffered serious injuries from abuse or neglect at a nursing home.

Continue reading "Pennsylvania Counties Increasingly Consider Selling Their Public Nursing Homes" »

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.

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

June 22, 2013

Chronic Understaffing in Nursing Facilities: Punitive Damages


Camay Williams brought a wrongful death and survival action against Willow Terrace and Albert Einstein Health Network on behalf o f Marcel Mackey, claiming that various healthcare workers were negligent in their care and treatment of Marcel.

Marcel was a very sickly man when he entered the care of these hospital providers in 2007 complaining of thirst and incontinence. He had a history of two above the knee amputations, diabetes, multiple strokes, dementia and various other maladies. While he was at the hospital he developed a pressure ulcer on his sacrum. When he was transferred to a long-term care hospital it was noted that there was an infection in the ulcer. Marcel was eventually transferred to Willow Terrace and had several brief admissions to Albert Einstein Medical Center (AEMC). The admission to AEMC noted dehydration, malnutrition, pneumonia, worsening of the ulcer, poor hygiene, and infections.

Marcel passed away a little over a year after his initial admission. His death certificate lists, among other things, severe end stage ulcer. Camay argued that substandard care, staffing, assessments, oversight, and administration, led to Marcel's death.

The jury awarded Camay punitive damages in the amount of $500,000 finding that the facilities' conduct was willful or wanton, or exhibited reckless indifference to the rights of the deceased. Punitive damages are meant to punish the defendant for outrageous conduct and serve as a deterrent to the defendant and others who may engage in similar conduct. The defendants in this case appealed the punitive damage award stating that the evidence presented fell short of the minimum required to warrant consideration of punitive damages.

Camay called several employees of Willow Terrance and AEMC to testify during the trial. The employees testified that Marcel was supposed to be repositioned every two hours and note it in his chart or his ulcer wound would worsen. There were portions of his chart, which were silent on repositioning, for example in the month of August there were 33 eight-hour shifts with no mention of repositioning. Multiple employees complained of chronic understaffing and testified that even with all staff present there were not enough employees to reposition all the patients every two hours. One nurse testified that Marcel's ulcer was the size of a dinner plate and infected with a foul smell and puss drainage. Another nurse testified that when she changed the wound dressings it was clear that they had not been changed every shift as required. Further, nurses testified that incomplete chart entries revealed a lack of catheter care, showers and skin assessments. Willow Terrace also received numerous deficiencies from state inspectors.

Camay also called an expert who testified that the facilities were operating "woefully below the standard of care" and that they played a substantial role in Marcel's death. Another expert testified that the failure to reposition played a large role in the deterioration of the ulcer and ultimately in his death.

The reviewing court upheld the lower court's punitive damage award finding that the facilities acted in an outrageous fashion, in reckless disregard to the rights of their patients and created an unreasonable risk of physical harm to Marcel. The court relied heavily on the record of chronic understaffing and its resultant inability to care for patients.

Williams v. Willow Terrace, PICS Case No. 13-1208 (C.P. Philadelphia April 8, 2013) Jackson, J.

June 20, 2013

Ohio Attorney General Shuts Down Nursing Home After Hidden Camera Reveals Neglect


When Pennsylvania nursing home abuse takes place, it often takes place behind closed doors. If the victim is a patient with disabilities that prevent clear communication, it may be some time before the abuse is uncovered. That's why I was interested, as a Philadelphia injury lawyer, to see news out of Ohio that a long-term hidden camera investigation of one nursing home has led to revocation of the home's license and possible criminal charges. The Columbus Dispatch reported that state officials recorded "shocking and disturbing" instances of abuse and neglect with hidden cameras at Autumn Health Care Nursing in Zanesville, Ohio. The local NBC affiliate added that the cameras revealed multiple kinds of neglect and falsified documents. The home has 60 days to shut down; the state is helping patients move to new facilities.

NBC reported that patients' families' complaints originally motivated the investigation. The state attorney general wouldn't say how long the cameras were in place, but state regulators have been monitoring the nursing home for at least four years, in response to complaints. The cameras, installed with permission from patients and families, recorded neglect of at least one patient's medical, nutritional and personal needs. Employees were accused of falsifying documents to make it look as if those needs had been met, the article said. Once the state health department had these results, it performed an inspection and found violations in patient treatment and care; infection control; food and nutrition; and resident rights. Families were upset that their loved ones were not given adequate care and that they had to move.

The state attorney general said criminal charges could be filed in the case, including possible charges of Medicare fraud, patient abuse, theft and falsification. The articles don't say what exactly happened to these patients, and perhaps it's for the best that the patients themselves and their families will have a chance to decide whether to go public. But as a Philadelphia medical malpractice lawyer, I suspect we'll receive more details if any of the families involve decide to file lawsuits. Lawsuits are a real possibility because patients and their families often end up with steep medical bills from this kind of neglect. Malnutrition, dehydration and pressure sores can be serious threats to an immune-compromised elderly person, requiring hospitalization. The obligation to change facilities is also unlikely to be cheap. All of these costs are recoverable in Pennsylvania with a Pennsylvania nursing home abuse lawyer's help.

Continue reading "Ohio Attorney General Shuts Down Nursing Home After Hidden Camera Reveals Neglect" »

June 14, 2013

Is the Document my Elderly Loved One Signed Really Binding?


Unfortunately, there are people who willingly take advantage of the elderly people in our lives. You may discover that an elderly member of your family has signed a document which appears to eliminate the possibility of bringing a claim for injuries they suffered. That was the case in Philadelphia, where the executor of the estate of Richard MacPherson sought to bring an action for the abuse and neglect Richard suffered while a resident at several hospitals and nursing home facilities.

The defendant health care facilities sought to introduce an arbitration agreement signed by Richard that would have forced his executor into arbitration and set the terms of the arbitration instead of being allowed to file a complaint in Common Pleas Court. The agreement Richard had signed required, among other things, that whoever lose in arbitration pay attorneys' fees and costs, arbitration costs be divided equally, there be no jury trial and that there be a very limited right to appeal the arbitration decision.

The defendants relied on a case called Williams v. Penn Center Rehabilitation and Care, when they claimed that the executor could not file a case and must comply with the terms of the arbitration agreement. There, Mr. Williams testified during a deposition and stated that he understood the process and knew what he was signing when he signed it. In Richard's case, however, he had lost more than twenty pounds in a matter of two months. He was incontinent and entirely reliant on facility staff. His body was covered in blisters, scar wounds, necrotic tissue and lesions. Richard also suffered from various medical maladies including chronic obstructive pulmonary disease, congestive heart failure, depression, Hepatitis C, diabetes and substance abuse. Richard had passed away before this case was filed and therefore could not testify at a deposition regarding his understanding of the arbitration agreement he had signed. Further, defendants' representative who had presented the paperwork to him had no recollection of her conversation with Richard.

Agreements are found to be "procedurally unconscionable" and therefore void when there is a lack of meaningful choice by the weaker party in accepting the terms of the agreement. In finding that this agreement was indeed unconscionable and void the Court here relied on the fact that Richard had no ability to negotiate the terms of the agreement. He signed the agreement on the same day it was presented to him and would not have had an opportunity to review it or discuss it with an attorney or others.

Therefore, due to factors such as the degree of Richard's illness, the fact that the agreement strongly favored the defendants, the inability to obtain testimony from Richard regarding his understanding of the agreement and Richard's inability to negotiate the terms of the contract because of how quickly it was presented and signed, the Court found that the agreement was void and allowed the executor to move forward with his case. Depending on the circumstances surrounding an elderly person's signing of a document it might not actually be binding.

June 5, 2013

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


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

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

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

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

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

May 22, 2013

Carbon County Nursing Home Patient Charged With Homicide in Another Patient's Death


In an unusual situation, an eastern Pennsylvania nursing home patient is being charged with a homicide in the death of another patient. As a Pennsylvania nursing home lawyer, I was interested to see that Carl Smith was arraigned on charges of involuntary manslaughter for pushing Margaret Lechleitner, 85. Both were residents of the dementia ward at Weatherwood Nursing Home in Weatherly, a Carbon County community between Allentown and Scranton. Lechleitner died after she fell to the floor, hit her head and suffered a subdural hematoma, a kind of blood blister. The death was ruled a homicide by the Luzerne County coroner--but the ruling only means that it was caused by another person, not that it was a criminal act. According to WNEP, medical experts and a judge will decide whether the case should go to trial.

The incident leading to Lechleitner's death took place April 20. Smith told authorities that Lechleitner pushed him first and he pushed back, though police say there's no evidence that she pushed him. After Lechleitner hit her head, she was taken to the Hazleton General Hospital just over the county line, where she died the next day. Police said they had to balance competing interests in the case, because Smith has dementia as well. An officer said the police wanted to make sure justice was served for Lechleitner's family, but also that everyone around Smith is safe and that Smith continues to get treatment. An Alzheimer's Association of Pennsylvania spokeswoman told WNEP that she has never seen an arrest, or indeed any situation where one dementia patient caused the death of another.

Interestingly, no one in the articles commented on the oversight responsibilities of the nursing home. Of course, there may have been nothing that nursing home attendants could do, if the incident happened quickly. But if Smith and Lechleitner were left together without supervision, the home may be vulnerable to a Pennsylvania nursing home abuse lawsuit alleging that it was negligent. Dementia patients end up in nursing homes because they need the kind of 24-hour supervision that families often can't provide. In fact, in nursing homes, they are known for having difficult behavior. Nursing home staffs are supposed to keep them out of trouble, but as a Philadelphia medical malpractice lawyer, I know understaffed, stretched-thin homes let things slide sometimes--and patients can die or suffer injuries as a result.

Continue reading "Carbon County Nursing Home Patient Charged With Homicide in Another Patient's Death" »

May 6, 2013

Task Force Formed to Study Senior Abuse and Neglect


The Administrative Office of Pennsylvania Courts (AOPC ) announced the establishment of the Elder Law Task Force formed by the Pennsylvania Supreme Court to investigate the increasing troubles regarding abuse, neglect, guardianship and the access senior citizens have to justice. Justice Debra Todd is chairing the task force, which will recommend possible legislation, amended laws, training and best practices. The task force has one year to finalize their study.

Supreme Court Chief Justice Ronald Castille said that Pennsylvania's older population has significantly increased and as it grows, it is straining the ability of courts to provide services to protect elderly Pennsylvanians. He further stated that the requirements of the elderly will last for years, especially with regard to elder abuse, guardianships and their access to legal recourse. He said that it is time to guarantee that older Pennsylvania citizens will not suffer abuse or the loss of their savings.

Justice Todd has said that our society focuses on child abuse, but rarely addresses the abuse of the elderly. The force is hoping to put new laws into effect before the elderly population swells even more because with more elderly citizens comes more elderly abuse. Nowadays the number of people in the United States who are over 65 years old is greater numerically and proportionately than it has ever been, according to the U.S. Census Bureau. Pennsylvania is only exceeded by three other states in terms of elderly population density.

The AOPC gave three instances of elder abuse that would be addressed by the task force. One example was a 64-year-old man from Lancaster who relied on his personal care aide to fix his meals, bathe and dress him because he only had one leg. The police said that the aide neglected the man so severely that the amputee developed skin ulcers that reached the entire way to the man's bone. Due to the extensive wounds, he lost his other leg.

Another example dealt with a Bucks County woman enlisted a neighbor to handle her personal finances since she was entering a nursing home. The neighbor squandered her savings on casino trips, jewelry, posh vacations and golf outings rather than paying her bills. The man has been charged with five felony theft charges.

The National Institute of Justice recently funded a study that reported that in 2009 eleven percent of folks over the age of 60 were the victims of senior abuse. Justice Todd said that at least the two previous cases had been reported. Todd said the U.S. Administration of Aging's National Center on Elder Abuse reported recently that for every one reported case, it's estimated that there are five unreported cases. Justice Todd called that statistic shameful and insisted that Pennsylvania can do a better job protecting seniors from abuse and neglect.

April 29, 2013

Recognizing Nursing Home Abuse


Abuse in nursing homes is a hot button topic. When our elderly relatives and friends reach a point in their lives when they require assisted living or hospitalization, we expect them to have the best care available. However, nursing home residents are routinely mistreated by the people we entrust to take care of them. Frequently, patients will not mention abuse they may be suffering, so it's important for you to know what constitutes nursing home abuse and how to identify it. Some reports say that for every case of nursing home abuse that's reported, there are five cases that are not reported.

Nursing home abuse come sin three forms: neglect, emotional and physical. General, easy-to-spot signs of these types of abuse include:

• Unexplained injuries like bruises, cuts and sores.
• Infections, rashes, rapid weight loss, dehydration and unsanitary conditions.
• Unusual behavior patterns, depression, irritation and isolation.

Neglect

Neglect is the deprivation of care for a resident of a nursing home. Some examples of neglect are failure to feed, refusing to medicate, refusing to aid with a resident's personal hygiene, failure to provide necessary medical care or failure to protect the resident from hazardous conditions like a wet floor or slippery sidewalk. Noticeable symptoms would be lice, bad breath or dirty bedding.

Emotional Abuse

Emotional abuse is harder to detect than physical abuse or neglect, however, emotional abuse can be as harmful to a resident as any type of abuse. Examples of emotional abuse are humiliation, verbal threats or insulting language. Basically, any behavior that causes the resident fear or emotional pain is a form of emotional abuse. Symptoms that a resident has been emotionally abused include:

• Withdrawal from social settings.
• Refusal to speak or answer questions
• Agitation or extreme depression
• Compulsive behavior like thumb sucking, rocking and mumbling

Physical Abuse

Physical abuse is the easiest type of nursing home abuse to see. Examples of physical abuse are rape, failure to feed a resident, striking a resident, too much physical restraint or improperly medicating the resident. There are numerous symptoms of physical abuse.

• Ripped clothing
• Broken eyeglasses
• Bruises
• Cuts
• Burns

Rape is a heinous form of physical abuse. Sexual abuse includes inappropriate touching, rape, forcing a resident to pose for pornographic photos or videos, or exposing a resident to pornographic material. Symptoms of sexual abuse include bruises in the genital area, torn or bloodied underwear, bleeding from the vagina or anus, or the unexplainable occurrence of sexually transmitted diseases. Beware of caregivers who insist on overseeing a resident's time with loves ones. They could be making sure the resident doesn't report them for abuse.

Nursing home abuse is the result of an overworked or an under-trained, underpaid staff. Poor vetting of employees and inadequate personnel can also cause nursing home abuse.

If you suspect abuse, talk to the nurses and doctors at the facility. Try to vary your visitation schedule. If you see symptoms of nursing home abuse, file a report.

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.

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

March 27, 2013

Judge Dismisses Nursing Home Neglect Lawsuit Against Bucks County


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

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

As a Pennsylvania nursing home lawyer, I hope this family continues to pursue the lawsuit. The article doesn't make clear who exactly was sued, but typically, the nursing home is legally responsible for its employees' behavior. With private homes, that's true regardless of whether the employees were carrying out policy or simply making bad choices. The rules may change because this home is part of the Bucks County government, but in general, government employees are not immune to lawsuits. Of course, Notwick can also sue the employees who provided negligent care as individuals, but suing them as individuals does nothing to induce their superiors to make (or enforce) policies that avoid Pennsylvania nursing home abuse. Individuals also have far less money, which may be an issue for this family if they suffered significant financial losses from the bad care, such as high medical bills and funeral expenses. As a Philadelphia injury lawyer, I would be interested to see whether this ruling is revisited.

Continue reading "Judge Dismisses Nursing Home Neglect Lawsuit Against Bucks County " »

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.

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

February 7, 2013

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


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

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

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

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

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