Recently in nursing home negligence Category

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" »

August 22, 2013

Residents of Catholic Philadelphia Nursing Homes Face Uncertain Future Due to Sale


As a Pennsylvania nursing home lawyer, I was interested to see reports that the Catholic Archdiocese of Philadelphia plans to sell six nursing homes in greater Philadelphia. According to the Philadelphia Daily News, the archdiocese is selling six nursing homes and one assisted-living facility in order to address financial problems. Three of the homes are in Philadelphia: Immaculate Mary Home, St. John Neumann Home and St. Monica Manor. St. Martha Manor and Villa St. Martha are in Chester County, St. Francis Country House is in Delaware County, and St. Mary Manor is in Montgomery County. The announcement comes after several years of financial problems for the archdiocese. The National Catholic Reporter said the homes ran a deficit of $1.4 million at the end of fiscal year 2012.

In all, 1,400 residents will be affected by the proposed sales, as well as more than 2,000 employees. The archbishop for Philadelphia, Charles Chaput, said it will be a condition of the sale that no residents will be evicted, and "every effort will be made" to retain employees. As a Philadelphia injury lawyer, I am concerned for these residents and employees, because a sale is likely to mean a change to for-profit status. Studies show that nonprofit nursing homes generally deliver higher-quality care than for-profit homes, as measured by factors like citations by government regulators, use of restraints, number of bedsores the residents sustain, and staffing ratios. A 2009 meta-study published in the British Medical Journal drew that conclusion, echoing 2002 and 1991 studies. Among other things, it said, there are 7,000 pressure sores per year that can be attributed to for-profit care, statistically speaking.

It's not a given that for-profit status inevitably leads to Pennsylvania nursing home abuse, but if I had a loved one in one of these Catholic facilities, I would watch the sales closely. In my experience as a Philadelphia medical malpractice lawyer, for-profit status can lead to neglect when profit-motivated owners choose to understaff their homes or hire cheaper, unskilled workers. Overworked employees may skip or simply forget needed care, leading to problems like bedsores, missed medications or lack of attention to basic nutrition and hydration. In more serious cases, nursing home employees have been known to steal residents' drugs, physically abuse them or overuse psychiatric drugs as "chemical restraints" against unruly dementia patients. All of these are forms of abuse and neglect in nursing homes, which no Philadelphia family should have to experience.

Continue reading "Residents of Catholic Philadelphia Nursing Homes Face Uncertain Future Due to Sale" »

August 8, 2013

Oklahoma Supreme Court Resurrects Nursing Home Lawsuit By Voiding Affidavit Law - Douglas v. Cox Retirement Properties


As a Pennsylvania nursing home lawyer, I frequently end up pursuing medical malpractice claims because Pennsylvania nursing home abuse often takes the form of bad medical decisions. For example, over-medicating patients, failing to timely treat a clear illness or allowing bedsores to develop are all medical mistakes that are unfortunately common at nursing homes. But because medical malpractice is a highly politicized area of the law, nursing home patients and their families often face extra hurdles when they want to file a medical malpractice claim--such as Pennsylvania's affidavit of merit requirement. Oklahoma, too, has passed such a requirement, but that state's high court ruled that the requirement was part of an unconstitutional "logrolling" bill in Douglas v. Cox Retirement Properties, Inc..

Carol Douglas sued Cox in her capacity as the administrator for the estate of her father, Richard Lee Douglas. Richard Douglas was admitted for extended rehabilitative care but discharged 21 days later; he died less than a month after his discharge. The opinion does not detail the estate's contentions except to say that it alleges negligent care and treatment. But after the suit was filed, Cox moved to dismiss because Douglas had not complied with a 2009 law requiring a written expert opinion stating that the case is meritorious. Douglas replied that the 2009 law was unconstitutional because it was enacted as a multi-subject "logrolling" bill in violation of the single-subject rule in Oklahoma's constitution. The trial court granted the motion to dismiss but certified that order for immediate review, and the Oklahoma Supreme Court took it up.

The Oklahoma state constitution provides, in relevant part, that "every act of the Legislature shall embrace but one subject." This is intended in part to prevent "logrolling," the court said, which is bundling desirable provisions with unrelated, undesirable ones in order to make a law "veto proof" or certain to be vetoed. The court found that the 2009 law that contained the affidavit requirement, the Comprehensive Lawsuit Reform Act, contains 90 sections that are not closely related by theme or purpose. One adopts federal procedure code to control state lawsuits; another helps collects Medicaid refunds; several other provisions limit liability for specific kinds of businesses. Passing these provisions under the umbrella of lawsuit reform is not adequate to bring them into compliance with the single-subject rule, the high court said. A legislator considering the law would be required to vote for all of them in order to pass any. And the court declined to sever the provisions it found unconstitutional, arguing that this would make it the policy maker inappropriately. It revived the case and remanded to trial court.

This opinion from Oklahoma's Supreme Court followed a related opinion in which the affidavit requirement was struck down for separate reasons. In Wall v. Marouk, the high court found that the affidavit requirement was an unconstitutional "special law" that imposed different rights or duties on members of a class who are otherwise on the same footing. It also found that the requirement created a financial barrier to justice. As a Philadelphia medical malpractice lawyer, I've been highly critical of affidavit requirements in our state because of their financial cost--as well as the time problem they can create. As a Philadelphia injury lawyer, I don't believe we should impose more barriers to justice on people who are already suffering from serious physical and financial problems because of a nursing home's mistake.

Continue reading "Oklahoma Supreme Court Resurrects Nursing Home Lawsuit By Voiding Affidavit Law - Douglas v. Cox Retirement Properties" »

July 24, 2013

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


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

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

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

Continue reading "Federal Report Finds 'Huge Number' of Younger People Unnecessarily in 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 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" »

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 20, 2013

Western Pennsylvania Nursing Home Settles Lawsuit Alleging Worker Attacked Patient


As a Pennsylvania nursing home lawyer, I was pleased to see that a Western Pennsylvania family has settled its Pennsylvania nursing home abuse lawsuit with a nursing home. According to the Altoona Mirror, Affinity Health Services Inc. settled claims that a worker there assaulted a 77-year-old woman two weeks before her death. Christine Welshans was left with bruises and blood on her face after the alleged assault on Aug. 16 or 17 of 2009. The aide accused of hurting Welshans was also accused of assaulting another patient, but the case involving Welshans was closed after her death two weeks later was ruled heart-related. The family's lawsuit noted that the aide, not named in the article, had a history of abusing patients at another home.

Welshans had physical problems, but was pleasant and able to interact with staff until the night of Aug. 16 or the early morning of Aug. 17. That's when the lawsuit alleges she was battered around the face by the aide. A city police report the next day said Welshans had bruising around her eye, her cheek and her chin, and dried blood on her cheek. After the incident, she was agitated and claimed someone had hit her. There was no witness to the attack, but a witness did see the other attack that night, in which the aide pinned a woman's arms to her body using the belt on a robe. Though that incident led to charges, they were dismissed at a preliminary hearing. The lawsuit claimed Affinity was negligent in hiring the aide with the history of violence.

As a Philadelphia injury lawyer, I'd like to know what happened to the aide--who, let us remember, assaulted the other patient in front of witnesses. The article didn't mention whether the aide was disciplined by the state or the company for the assault on the other patient, or for the allegations involving Welshans. It does mention that the law enforcement officer who gave the aide a voice stress test after the incident thought he or she was lying, which was probably important in court. If the aide was not fired after these incidents, Affinity will have a lot of questions to answer--especially if he or she assaults more patients. For-profit nursing homes don't like to lose staff because replacing them costs money, but keeping this kind of employee puts patients in danger. As a Philadelphia medical malpractice lawyer, I hope Affinity did the right thing with this aide.

Continue reading "Western Pennsylvania Nursing Home Settles Lawsuit Alleging Worker Attacked Patient" »

January 24, 2013

Eastern Pennsylvania Nursing Home Resident Sexually Assaulted by Fellow Resident


As a Pennsylvania nursing home attorney, I was surprised and disappointed to see an article about sexual assault at a Lancaster County nursing home. According to Lancaster Online, a man at Maple Farm Nursing Center in Akron, Penn., is in county jail after admitting to sexually assaulting a female Alzheimer's patient at the facility. Glenn Hershey of Akron is charged with involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault and sexual assault in connection with the incident that took place early on Jan. 20. He has been discharged from the nursing home and will not be permitted to return, the home's executive director said.

Nursing home staff checked on the victim, an 86-year-old Alzheimer's and dementia patient, around 4:50 a.m. Sunday and found her nude from the waist down and complaining of pain in her abdomen and genitals. Earlier that night, staff had seen Hershey leaving the victim's room and asked if she'd had a visitor, but she said she had not. Court records show that the nursing home staff was aware that Hershey is a sex offender convicted in 1993 for sexual assault of a professional escort. He had called the escort and offered her money for sex, but when she discovered that he didn't have the money, he assaulted her anyway. After Sunday's assault, Hershey admitted to sexual contact with another female resident at Maple Farm. The home declined to provide further details, citing privacy concerns.

Because Maple Farms staff knew about Hershey's past history, many residents' families are probably questioning whether staff did an adequate job of protecting other residents from him. In fact, some may be wondering whether it was appropriate to admit Hershey to the home at all. Dementia patients like the victim need extra protection because their disease robs them of the ability to fully take care of themselves. If staff members knew about the potential for a rape and didn't take adequate steps to protect residents, they may be guilty of neglect, which is a form of Pennsylvania nursing home abuse. As a Philadelphia injury lawyer, I wouldn't be at all surprised to see a lawsuit from the victim's family, and possibly action from other families as well.

Continue reading "Eastern Pennsylvania Nursing Home Resident Sexually Assaulted by Fellow Resident" »