Pennsylvania Nursing Home Abuse Attorney Blog

As a Pennsylvania nursing home lawyer, I was very interested in a bill that recently became law in Harrisburg. The Long-Term Care Nursing Facility Independent Informal Dispute Resolution Act will establish a new process for Pennsylvania nursing homes facing regulatory penalties after state regulators' inspections or responses to complaints. A press release from State Rep. Mauree Gingrich of Lebanon said the process will give long-term care facilities the option of using the current regulatory process through the state Department of Health, or choosing an outside reviewer at their own expense. The bill was hailed by state legislators including Gingrich for its potential to save money for nursing homes. It was passed in the state House Dec. 16 and signed Dec. 22, with an effective date of April 1, 2012.

Under the act, nursing homes now have the option of bypassing the current review process when they are found out of compliance with a state safety regulation. They may still use that process, but they may also hire a private Quality Improvement Organization at their own expense. Legislators said this would permit nursing homes with compliance problems to dispute inspectors' findings before those findings are entered into federal systems that collect nursing home quality data. This, in turn, would permit homes to avoid litigation and thus save money. Proponents emphasized that the new system would still ensure quality of care for nursing home residents. Opponents of the bill, including organizations that advocate for the elderly, asked legislators to add provisions allowing patients and their families to have a voice during this process.

Cutting off patient access to the review process is concerning -- but as a Philadelphia injury lawyer, I am concerned about other aspects of this bill as well. Allowing nursing homes with safety problems to choose an outside inspector creates an opportunity for nursing homes to essentially buy the regulation they prefer, by choosing QIOs that are willing to provide whatever answer the nursing homes like. It will slow down the process of fixing any underlying problems, because it permits homes to delay their response while they go through the QIO process. The references to keeping homes' violations out of federal records are also disturbing. Using correct and current federal records is a great way for patients to avoid homes with a record of Pennsylvania nursing home abuse, so it's better to include every violation on record. As a Philadelphia medical malpractice lawyer, I hope patient advocates are following this law closely.

Continue reading "Pennsylvania Governor Signs Bill Establishing Informal Review of Nursing Home Violations" »

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

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

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

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

As a Pennsylvania nursing home lawyer, I was interested to see a nursing home decision from next door in Delaware. In Dishmon et al. v. Fucci et al., Michael Dishmon and others sued a nursing home for alleged malpractice leading to the death of his father. Dishmon filed an affidavit of merit, as required by Delaware law, as to the validity of his claims. However, the filing did not include a copy of the expert's C.V. (professional resume), and the trial court dismissed the case on that basis. The Delaware Supreme Court reversed it, finding that the lack of a C.V. was a procedural error only and that the trial court should have used its discretion to allow the C.V. to be filed at a later date.

James Dishmon entered the Hockessin Hills nursing home in late December of 2004 with a variety of medical problems, including heart problems. Four days later, he died of acute coronary ischemia and coronary artery disease. His son, Michael Dishmon, alleges that contrary to his express instructions, Dr. Pasquale Fucci and his physician's assistant, Bernie Schneider, put a "do not resuscitate" order on his father. Thus, the Hockessin Hills staff made no effort to revive the elder Dishmon when he fell ill. Michael Dishmon sued in December of 2006 and timely filed an affidavit of merit written by Dr. Herbert Muncie, which defendants moved to review in camera. That review led the judge to dismiss the case for three reasons: It did not contain a copy of Muncie's C.V.; it didn't demonstrate familiarity with the standard of care for a physician's assistant; and it didn't go into enough detail on Muncie's opinion. Dishmon moved for relief from the judgment within two weeks, attaching the missing C.V., but the trial court denied it without comment four months later.

Dishmon appealed, challenging all three grounds for dismissal. The Delaware Supreme Court started with the issues of Muncie's detail and familiarity with the physician's assistant standards. Though Delaware's affidavit of merit statute is designed to prevent frivolous lawsuits, the court said, its requirements are "purposefully minimal." Thus, it found that Muncie's affidavit was legally sufficient because it met the requirements of Delaware state law: "The General Assembly did not intend a minitrial at this stage of the litigation." Thus, the defendants were wrong to argue that Muncie needed to demonstrate special familiarity or evidentiary support to file a legitimate affidavit. The high court next turned to the C.V., which it suggested the trial court may not have dismissed if it hadn't found other parts of the affidavit insufficient. Delaware public policy favors allowing lawsuits to continue, it said. And trial courts have discretion to allow litigants to cure procedural mistakes. Thus, the trial court should have used its discretion to allow Dishmon to cure the mistake -- particularly in light of the requirement that the C.V. be submitted in a sealed envelope, leaving the attorney no chance to double-check its contents. Finally, the high court urged trial judges to supply reasoning for their decisions, which was absent in this case.

Though the court is reserved in its disapproval, this case still seems like a victory to me as a Philadelphia injury lawyer. In essence, the high court found that the trial court dismissed the case arbitrarily and, for the first two reasons, for reasons contrary to the law. Plaintiffs are required to file these affidavits in many states, including Pennsylvania. While the requirements differ from state to state, the same principle applies: Litigants should not be required to go beyond the requirements of the statute in order to keep their cases alive. Indeed, these statutes are themselves special requirements that don't apply to other kinds of lawsuits and were likely put in place for political reasons, requiring families that suffered from Pennsylvania nursing home abuse to jump through extra hoops. As a Philadelphia medical malpractice attorney, I vigorously fight to ensure my clients' cases aren't dismissed with arbitrary court rulings.

Continue reading "Delaware Supreme Court Resurrects Nursing Home Lawsuit Missing Expert's C.V. - Dishmon v. Fucci" »

As a Pennsylvania nursing home lawyer, I was interested to see a case about an issue that's relatively underreported: discrimination in nursing homes. According to the Allentown Morning Call, a Pennsylvania court has ruled in favor of a woman who said she was kicked out of a Walnutport nursing home when the staff discovered that she has HIV. G.D., who is 36 and also suffers from schizophrenia and bipolar disorder, ended up in a locked psychiatric ward because she had nowhere else to go. Her attorney said this was a textbook example of the harm discrimination causes. The Pennsylvania Human Relations Commission won a court judgment ordering Canal Side Care Manor and its owner, Lakshmi Kademani, to pay damages to G.D. and a fine to the state. In its ruling, the court also found that Kademani filed a frivolous appeal and was taking steps to hide her assets from the court.

G.D. went to Canal Side after her group home recommended more care than it could provide. She did not expressly tell Canal Side that she had HIV, but a Canal Side employee discovered it when asking what certain medications were for. Kademani, concerned abut HIV transmission through G.D.'s urinary incontinence, then gave G.D. 24 hours to leave. G.D.'s healthcare team told Kademani that there was no serious risk with proper precautions, which were already in place. Nonetheless, G.D. was kicked out, and because her family was unable to provide the care she needs, ended up in "lockdown" at a mental hospital. G.D.'s sister filed a complaint with the Pennsylvania Human Relations Commission, which eventually ruled for G.D., fining Canal Side $5,000 and ordering $50,000 more in damages to G.D. Canal Side and Kademani appealed. The Commonwealth Court was unimpressed with the appeal, finding that it was meritless, legally inadequate and intended to delay paying the damages. Thus, it ordered attorney fees for G.D.'s appeal as well.

As a Philadelphia injury lawyer, I'm pleased to see a decision upholding the rights of a woman with a limited ability to advocate for herself. As the article points out, the effects of the discrimination against G.D. were not minor. After she was evicted from the nursing home, her family tried for a month or more to provide care, even though they didn't have the special expertise necessary for mental illness, HIV and incontinence. After that failed, G.D. ended up in a mental hospital, imprisoned and unable to live a full life. When nursing home patients stay in their homes, discrimination may still rob them of adequate medical care. For example, studies document that African Americans tend to be in different and lower-quality homes than white patients. This kind of indifference can easily lead to Pennsylvania nursing home abuse and neglect. As a Philadelphia medical malpractice lawyer, I believe our elderly and disabled people deserve better.

Continue reading "Court Upholds Penalties Against Nursing Home That Evicted HIV-Positive Woman - Canal Side Manor v. PHRC" »

I've written several times before on this blog about the local nursing home scandal centered around the Quadrangle nursing home in Delaware County. In May, I mentioned that the family of Lois McCallister announced plans to sue the Quadrangle's parent company, Sunrise Senior Living, for negligence in the case. As a Pennsylvania nursing home lawyer, I was interested to see articles last week announcing that McCallister's daughter and son-in-law, Mary and Paul French, have filed their suit. According to the Delaware County Daily Times, the Frenches filed their complaint Oct. 12 alleging that Sunrise negligently failed to train workers, negligently kept the home understaffed and failed to follow state regulations intended to protect vulnerable residents. They seek more than $50,000 in damages, but the Frenches said at a press conference that they really want to ensure that no other nursing home resident suffers in the same way.

The Frenches began to suspect the abuse after McCallister made comments suggesting it and even showed physical injuries. Quadrangle employees told them the complaints were probably a result of McCallister's dementia, but Paul French bought a "nanny cam" disguised as a clock and put it in McCallister's room. The resulting video showed three Quadrangle employees physically abusing McCallister, refusing to let her get dressed and making fun of her as she got upset. All three of them -- Samirah Traynham, Ayesha Muhammed and Tyrina Griffin -- have been fired and are awaiting a Nov. 14 trial on charges of assault, harassment and more. McCallister has since moved in with the Frenches, but Mary French said her mother still begs family members not to hurt her as they say goodnight. Paul French said at the conference that since the story went public, he'd gotten a letter from the husband of another Quadrangle resident, thanking them for the intervention because he believes care in the dementia unit is now better than it had been for the past two years.

As a Philadelphia injury lawyer, I am not at all surprised. When a media spotlight is shined on a nursing home, it frequently gets its act together, if only for the cameras. In this case, however, the Quadrangle was answering to state regulators as well: The state Department of Public Welfare revoked its license in April. That action was partly a reaction to McCallister's abuse and the Quadrangle's failure to report it, but articles at the time outlined other violations, including withholding prescribed medication, giving unprescribed medication, failure to conduct required employee background checks and more. A few years before, Sunrise had been disciplined for allowing dementia patients to consume paint and antibacterial cleaner. All of these forms of Pennsylvania nursing home abuse and neglect threaten the lives of people who are supposed to be cared for. As a Philadelphia medical malpractice lawyer, I suspect the French family's lawsuit is right to ascribe many of the problems to cost-cutting -- but for $8,000 a month, homes should do better.

Continue reading "Family in Quadrangle Nursing Home Abuse Case Files Lawsuit Against Nursing Home" »

A recent article about race-based differences in care caught my eye as a Pennsylvania nursing home lawyer. According to HealthDay News, a study by Brown University has found that African American nursing home patients are 23 percent less likely than white residents to get a flu vaccination. In fact, the vaccination rate for all groups fall short of Medicaid and Medicare's target rate of 90 percent, at 82.75 percent. But that number for white residents was 83.46, while for African Americans it was 77.75 percent. Researchers suggested several explanations for the disparity, including a higher rate of refusal among African Americans as well as disparities in care.

The numbers come from annual patient records at 14,000 American nursing homes, during the flu seasons from late 2006 to early 2009. The results appear in the October issue of the journal Health Affairs. In a press release from Brown, study co-author Vincent Mor said the two racial groups often end up in different nursing homes, and that evidence suggests the ones serving African Americans are lower in quality. However, the researchers found a consistent difference in the groups' vaccination rates even within the same homes -- on average, African Americans were 15 percent less likely to be vaccinated than their white neighbors. Part of the problem could also have to do with vaccination refusal, the article noted; in 2008-2009, 12.88 percent of African Americans refused the vaccine, while only 8.93 percent of whites did. The authors suggested that future studies look into whether the refusals are influenced by the way the vaccination is offered.

The vaccine refusal rate is certainly interesting and worth following up on. But as a Philadelphia injury lawyer, I strongly suspect nursing home quality has much to do with the disparity. In my line of work, I see the effects of budget cuts on quality of care. When there are fewer staff members or less well-trained staff members, those who remain have to do more with less, and this can make it easy to forget or neglect important things, even to the point of Pennsylvania nursing home abuse. It can also make tempers shorter thanks to stress. All of this makes it more likely that something important but routine like a flu shot will be left by the wayside. This is especially a shame because the flu is particularly dangerous for older and immune-compromised people, who can easily be dehydrated by too much vomiting or diarrhea. Failing to address this is a dangerous type of neglect. As a Philadelphia medical malpractice lawyer, I hope homes are resolved to do better this flu season.

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

As a Pennsylvania nursing home lawyer, I was interested to see a recent news item about a nursing home in the Pittsburgh region facing a lawsuit. According to the Altoona Mirror, the family of Alfred Pelligrino has sued the Valley View Nursing Home of Blair County, alleging Pelligrino died of complications from an improperly treated bedsore. Pelligrino suffered from Pick's disease, a neurological disorder that eventually leads to death, but does not put sufferers at high risk for pressure sores. Nonetheless, the family alleges that Valley View, which is county-owned but run by a private contractor, failed to take steps to prevent the sores, then failed to treat them before they caused an infection that led to kidney and heart failure. They are requesting payment of the medical expenses related to Pelligrino's illness as well as damages for his pain and suffering and their loss.

When Pelligrino entered the home in July of 2009, he was using a wheeled walker and could talk to nursing home staff. He had no skin problems at the time. The first pressure sores showed up in October of that year, and he was taken to a local hospital's wound clinic multiple times between then and January of 2010. The family transferred him to another home, the Hollidaysburg Veterans Home, in February of 2010, but the wounds did not improve. According to the lawsuit, Pelligrino's bedsores were so deep that they needed surgery to heal. The open wounds caused an infection that triggered congestive heart failure, which in turn caused kidney failure. The family's lawsut, filed on behalf of wife Virginia Pelligrino, charges Valley View with substandard care and failure to prevent the bedsores.

As a Philadelphia medical malpractice lawyer, I would be interested to read more about these allegations. Because Pelligrino was relatively mobile when he entered the home, he was tagged as a low-risk patient for pressure sores. It's possible that this lulled the home's employees into a false sense of security. It's also possible that he became less mobile after entering the home, due to restrictions on his movements, health deterioration or inappropriate medication -- which unfortunately is not uncommon. But whatever the reason, the risk of bedsores for nursing home patients is well known, and so is the relatively simple method of preventing them. Failure to take those steps is a form of Pennsylvania nursing home abuse and neglect (as would be the inappropriate drugs). As a Philadelphia injury lawyer, I hope any allegations of this kind of impropriety come out in the trial, so western Pennsylvania families can be warned about any potential risks.

Continue reading "Pittsburgh-Area Nursing Home Sued for Negligence Allegedly Leading to Death From Bedsores " »

As a Pennsylvania nursing home lawyer, I was interested to read an appeals court opinion about a historic "home for the aged" in Pittsburgh. The Lemington Home for the Aged was originally founded in 1883 as a rest home for elderly African Americans -- many of whom, at the time, were former slaves with limited means of making a living. The nursing home was relocated and expanded in 1983, after which it encountered financial trouble, staffing trouble and a series of health and safety violations that included the deaths of two patients in the home's care. After the home eventually filed for bankruptcy, a group of unsecured creditors filed a lawsuit against the home's directors and officers, alleging they breached their fiduciary duty by failing to act sooner. The district court dismissed In re Lemington Home for the Aged, but the Third U.S. Circuit Court of Appeals resurrected the claim.

The nursing home was unable to make as much money as expected in the 1980s and 1990s, in part because almost all its residents were on Medicaid. It received loans from the city of Pittsburgh, Allegheny County and private foundations, but ended up with $4 million in mortgage debt. To make matters worse, the federal government banned new admissions for a time in 1998, and the home's administrator declined to address staffing problems. A chief financial officer hired in 2002 failed to perform basic tasks; for example, Medicare bills were not submitted, and several employees quit because they were not paid. The home's Board lacked a treasurer during some of this time, ensuring no oversight. The administrator was frequently absent and not replaced. Furthermore, the home was cited for numerous safety deficiencies during this period, leading up to the June 2004 death of a patient whose resuscitation order was ignored, and December 2004 death that could have been caused by neglect.

The administrator proposed bankruptcy in May of 2004, but the board opted for a loan instead, eventually filing for bankruptcy 11 months later. A committee of unsecured creditors in that bankruptcy eventually filed an adversary proceeding against the home's directors and officers, alleging breach of fiduciary duty and deepening insolvency. The district court granted summary judgment to the home, finding that the fiduciary duty claim was barred and the deepening insolvency claim had insufficient support. The creditors appealed.

The Third U.S. Circuit Court of Appeals reversed that decision, finding that there were fact issues sufficient to let the case survive beyond summary judgment. Pennsylvania law allows directors to rely in good faith on information provided by their officers, who in turn must act in good faith in their jobs. The creditors argued that the administrator and the CFO breached their duties of due care; and that the board had breached its duty of due are by relying on the administrator, not intervening with the CFO, and diverting funds supporting the closed home to another home with an overlapping board of directors. The Third Circuit found that the creditors' evidence was enough to convince a reasonable jury that the administrator and CFO were not competent. This shows that the business judgment rule does not apply -- that is, the board cannot be said to have used reasonable diligence if they ignored signs that their officers were incompetent. It also disagreed with the district court that the in pari delicato rule applied. This rule bars plaintiffs from going to the courts over wrongdoing that they themselves had a part in. However, the Third Circuit said, the creditors have presented substantial evidence that the board was acting in its own self-interest, rather than for the good of the nursing home, when it moved the home's funding to another home its members also controlled. This is enough to present a genuine issue of material fact, the Third said, and thus it reversed summary judgment.

As a Philadelphia injury lawyer, I'm pleased that there will be some accountability for the board and the officers for apparent mismanagement of this home. A nursing home is not just a business or even a nonprofit; it is a home, and families entrust their vulnerable loved ones to it. By failing to take good care of basics like paying employees, the officers may have made Pennsylvania nursing home abuse or neglect more likely. After all, it's hard to provide good care if you have constant turnover and low morale. And of course, at least two deaths did take place at the home that may be traceable to mismanagement and neglect. As a Philadelphia medical malpractice lawyer, I hope those two families are able to get the answers they deserve.

Continue reading "Creditors May Sue Directors of Pittsburgh Nursing Home With Questionable Finances - In Re Lemington Home for the Aged" »

As a Pennsylvania nursing home lawyer, I know that keeping nursing home patients hydrated can be more difficult than it might sound. Older people can lose their sense of thirst, and some patients are disabled enough to need help with the mechanics of drinking. For these reasons, doctors advise caregivers that it's absolutely vital for patients to drink a certain amount of fluids per day -- but some nursing homes are too understaffed or uncaring to follow through. That was the allegation in Lounds v. State ex rel. Department of Veterans Affairs, a decision from the Oklahoma Court of Appeals. Lula Lounds sued the state-run nursing home where her father, David Shelton, died of causes including dehydration leading to kidney failure. The state raised issues on appeal including an alleged failure by Lounds to explain Shelton's care, but the court upheld a verdict for Lounds.

Shelton was 93 when he was admitted to the Norman Veterans Center, which is run by the Oklahoma Department of Veterans Affairs. The record does not show what medical conditions he had, but notes that he was supposed to be taking a diuretic and receiving at least 1,500 cubic centimeters of fluids per day. The record does show that the jury decided the center failed to provide that care. Just three weeks after his admission, Shelton had lost 20 percent of his body weight, and shortly died of congestive heart failure and acute renal failure caused by dehydration. At trial, evidence was introduced showing that the center failed to monitor Shelton's hydration, failed to respond to concerns raised by his family and did not follow its own policies. Lounds told the court she had not informed the center that her father was not taking a full dose of a diuretic, but said she never got a chance because an intake interview was promised but never completed. The center unsuccessfully moved to exclude testimony from her expert, Dr. Kaveh Kermanshahi, on the grounds that he is not a full-time nursing home doctor. Ultimately, the jury awarded $175,000 to Lounds, and found that more money was warranted although a tort awards cap made that impossible.

On appeal, the center argued that evidence for the verdict was insufficient and also that the trial court erred by admitting Kermanshahi's testimony. The center did not dispute the cause of death, but said Lounds failed to establish the standard of care she alleged the center did not meet. The appeals court disagreed. Lounds established a common-law standard of care in part through Kermanshahi, who the court said was clearly qualified as an expert. Furthermore, the center's medical director admitted in court that the center's care was not up to standards. Lounds also satisfactorily proved an alternative theory of statutory negligence under federal Medicare, Medicaid and veterans' laws that set standards for homes that take federal money. Finally, it dismissed the argument that $175,000 was an excessive award, noting that the money covers both funeral expenses and damages for the emotional pain of the family members.

In fact, the award seems rather small to me as a Philadelphia injury lawyer, given the damages cap. It's difficult to put a value on a person's life, but the award in question is designed not only to compensate his family, but also deter wrongdoing by the nursing home. In this case, the nursing home essentially admitted wrongdoing, but was prevented from facing higher damages by a damages cap -- even though the jury expressly said it would have awarded more. This may be public policy in Oklahoma, but I do not believe it is enough to deter Pennsylvania nursing home abuse. As a Philadelphia medical malpractice lawyer, I hope nursing homes in our state are paying better attention to the basic needs of their residents.

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

As a Pennsylvania nursing home lawyer, I frequently address issues that cross the line between ordinary negligence, like that of a careless driver, and medical negligence. Medical negligence is also called medical malpractice, and it has become a controversial political issue. This in turn has led many states to pass special laws that apply to medical malpractice cases but not other types of negligence. One of those laws formed the basis of the controversy in Omaha Healthcare LLC v. Johnson, a Texas Supreme Court case finding that a nursing home negligence case fell within the purview of the state's law on health care liability claims. The ruling means Wilma Johnson missed her chance to file an expert report within 120 days of filing suit, and the high court dismissed her case.

Johnson is the sister of Classie Mae Reed, who died at the Omaha Healthcare Center nursing home after being bitten by a brown recluse spider. Johnson sued Omaha for negligently failing to inspect and clean the premises and take pest control measures. Omaha moved to dismiss on the grounds that Johnson's allegations were health care liability claims (HCLCs) and she failed to file the required expert report; Johnson maintained that her suit was about ordinary negligence. The trial court and the Court of Appeals both sided with Johnson. The appeals court ruled that Johnson's claim was a safety claim, and that Texas law requires safety claims to be directly connected with health care to quality as HCLCs. Omaha appealed.

On appeal, the Texas Supreme Court reversed both lower courts. Under state law, it said, HCLCs include claims "against a health care provider or physician for ... other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care[.]" Caselaw and Texas codes agree that meeting patients' fundamental needs, including effective pest control, is part of the services a nursing home provides. Furthermore, the court said, health care is defined in Texas law as "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's ... confinement." Johnson pleaded causes of action for failure to take ordinary care, the court said, but "the underlying nature of her claim" was that Omaha did not exercise the ordinary care expected of a nursing home. Thus, it was an HCLC and should have been supported with the required expert report. A dissent in the case said the majority's interpretation of the statute would cause confusion.

As a Philadelphia medical malpractice lawyer, I appreciate that the Texas court acknowledged the overlap between nursing home abuse and medical malpractice. The kind of abuse that involves overuse of prescription drugs, for example, could likely be called medical malpractice without any controversy. However, this ruling effectively adds another barrier to filing a claim for victims of nursing home neglect, because it includes more cases as HCLCs than Johnson and the lower courts apparently thought was appropriate. This is disturbing to me as a Philadelphia injury lawyer, because more barriers will undoubtedly discourage patients and their families from pursuing claims. This makes it easier for negligent homes to continue providing shoddy care, secure in their knowledge that they're unlikely to be held responsible.

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

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

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

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

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

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

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

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

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

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

As a Pennsylvania nursing home lawyer, I was interested to see a story out of Detroit about a nursing home employee who was actually fired for putting patient safety first. That was the allegation made by Elizabeth Williamson, who sued Ciena Healthcare Management for wrongful firing. Williamson alleged that she was fired after cooperating with an investigation by the Michigan Department of Community Health, which was looking into several patient safety incidents. After a six-day trial in Williamson v. Ciena Healthcare Management, a jury in Wayne County, Mich. awarded Williamson $705,000 for lost pay and emotional suffering.

Williamson was a respiratory therapy manager at a Detroit nursing home called Omni Continuing Care. She and her colleagues were interviewed by the state Department of Community Health after several patient safety incidents. In one such incident, a patient who was not eating was given insulin, causing very low blood sugar levels. A nurse was supposed to check on the patient, but did not and falsified records showing she had, with the cooperation of supervisors. The patient was found dead by an outside lab technician, who also discovered the nurse sleeping. Another incident involved a patient who was left unsupervised long enough to pull out a tracheostomy; the patient died. In a third incident, a resident was given a wrong dosage of narcotics and developed respiratory distress, which wasn't properly assessed. And the state issued a fourth citation after an employee tied a resident to the bed with sheets and clothing.

As part of its investigation, the Department of Community Health interviewed Williamson and other managers at Omni. The state investigator testified that where others were evasive or tried to hurt the investigation, Williamson was honest and accurate. After the investigation was completed, she was fired. Omni was eventually cited for failure to train, monitor or hold staff members accountable, understaffing and directing employees to falsify records.

Unfortunately, news coverage and a law firm's press release don't tell us whether the facility was sued, fined or otherwise faced consequences for its actions. But as a Philadelphia medical malpractice lawyer, I feel confident that a facility with the record of violations outlined here could face both regulatory penalties and lawsuits by families of the victims. Families who put vulnerable loved ones in a nursing home expect the home to provide the kind of care they can't, including monitoring when necessary as well as medical expertise. When nursing homes not only don't provide this, but take steps to cover it up, they are violating families' trust as well as the law. As a Philadelphia injury lawyer, I help families with this kind of history of Pennsylvania nursing home abuse and neglect hold the facilities legally and financially responsible, recovering money they can use to find more appropriate care and making sure the facility's poor record is well publicized as a warning to others.

Continue reading "Woman Fired From Nursing Home for Assisting State Investigation Wins Damages - Williamson v. Ciena Healthcare Management" »

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

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

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

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

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

As a Pennsylvania nursing home lawyer, I was interested to see a recent piece on how health care reform affects nursing homes -- as employers rather than care providers. As the New York Times reported May 15, many nursing homes are lobbying Congress for an exception to the employer mandate part of the Affordable Care Act because they're concerned about the cost of insuring their employees. The Act will require all employers with 50 employees or more to offer health insurance starting in 2014, with a financial penalty for failing to do so. The homes say they need an exemption because they depend heavily on Medicare and Medicaid, whose reimbursement rates are going down rather than up. As a result, they say, they can't simply raise the price of the service they provide.

According to the Times, one in four nursing home employees does not have health insurance. The president of a nursing home industry group told the newspaper that employees who do have insurance typically don't have very good benefits, which means they may also not meet the Act's standards. Employees also dropped coverage when they couldn't afford it. The nursing home industry is exploring several ways around the Act, including laws that would allow homes to deduct the cost of penalties for non-coverage from their taxes; a waiver or reduced fee for homes "placed in financial distress as a result of the new mandates and fines"; and an extension of the time until the law takes effect. A nursing school professor told the newspaper that health insurance would make nursing home employees less likely to pass on infections to their patients and more likely to be treated when they have an occupational injury.

As a Philadelphia injury lawyer, I know those are both frequent problems for nursing home employees. According to the article, nursing home workers are injured twice as often as average, with many back injuries among those who help bed-bound and wheelchair-bound patients into and out of bed. And I've written here several times about the probability of sick employees spreading disease through a nursing home's closed population of vulnerable people. Often, workers come to work sick because they can't afford not to -- because, as the Times notes, the front-line workers make $10 to $12 an hour and frequently don't have adequate health insurance. Sometimes, a sick day for one staff member understaffs the home for the whole day, resulting in thin-stretched workers who are too busy to meet every patient's needs. This keeps costs low for employers, but in the long run, it poses risks that could be far more expensive -- including the risk of communicable disease, neglect and Pennsylvania nursing home abuse. As a Philadelphia medical malpractice lawyer, I hope nursing homes realize that insuring their workers can save money and lives in the long run, as well as being required by law.

Continue reading "Some Nursing Homes Want an Exemption From Employer Mandate in Health Care Reform" »