Pennsylvania Nursing Home Abuse Attorney Blog

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

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

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

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

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

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

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

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

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

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

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

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

As a Pennsylvania nursing home lawyer, I 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 Philadelphia injury lawyer, I was disappointed to see that a Philly-area nursing home is getting national attention for the wrong reasons. As the Philadelphia Inquirer reported Oct. 29, the U.S. Centers for Disease Control and Prevention called out a Montgomery County nursing home for having "one of the largest and most prolonged" outbreaks of streptococcus infections in a nursing facility. The CDC report did not name the home, but the Inquirer determined that the home is Arista Care at Meadow Springs in the town of Plymouth Meeting, and an administrator there confirmed the outbreak. In all, 13 residents had invasive strep and 10 had noninvasive strep. The CDC urged all long-term care facilities to investigate even a single case of strep and ensure they have good practices for controlling infections.

Two people died at Arista Care, but the home disputes that the cases were directly linked to strep. However, the CDC and the Pennsylvania health department both had records of multiple infection control problems at Arista Care, including ineffective "hand-hygiene practices." State records showed that not every room had gloves and that the facility had housekeeping problems. The outbreak started in October of 2009 and was likely carried into the facility by more than one source, the article said. Near the beginning, admissions to the facility were suspended for about two weeks while five people, including four workers, were treated for the infection. In April of 2010, Artsta Care hired a full-time worker whose job is infection prevention. The spokesperson also mentioned adding hand sanitizer dispensers to every room and testing each new patient for strep. A state spokesperson said there have been no new cases since December of 2010.

It's a relief to hear that this home is getting praised by the state for taking the necessary steps to stop the outbreak. But as a Pennsylvania nursing home lawyer, I think it's worth asking what kind of ineffective practices may have led to the outbreak in the first place. Infectious disease control is absolutely vital at nursing homes, because nursing homes combine two features that make outbreaks particularly risky: vulnerable older people and many people living in close quarters. Age and illness can both depress an individual's immune system; once the infection takes hold, age makes the victim more likely to develop a complication like dehydration. And living in close quarters makes it very easy to spread an infectious disease like strep, which spreads through close contact between people. As a Philadelphia medical malpractice lawyer, I hope nursing homes take the CDC's warning to heart, because the risk is severe.

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

One very common issue for me as a Pennsylvania nursing home lawyer is arbitration agreements. Many homes, especially private for-profit homes, will require or pressure patients into signing arbitration agreements when they enter the home. These agreements take away the patient's right to pursue justice through the court system; instead, they are compelled to use a form of private judging that has no jury and is not public record. Some studies have even shown that some arbitrators decide in favor of the large company paying them more often than they decide in favor of the individual bringing the lawsuit. For these reasons, we always prefer to go to open court. This was also the preference in Aurora Healthcare Inc. v. Ramsey, a nursing home negligence case in Alabama. The trial court there found that Aurora waited so long to invoke its arbitration agreement that it prejudiced Sharon Ramsey, but the Alabama Supreme Court sent the case back for more investigation.

Ramsey is the administrator of the estate of Mary Pettway, who died at 75 after two stays in Aurora nursing homes. Pettway signed an arbitration agreement on her second admission to a home. However, she ended up returning to the hospital, where she died. Ramsey filed a complaint on Nov. 3, 2005, alleging wrongful death and other common-law torts. Aurora responded by moving for a change of venue, which it eventually got, and filing other pretrial and discovery motions. It didn't raise the issue of an arbitration agreement until Nov. 3, 2006; another filing from that day said it hadn't realized an arbitration agreement existed until then. Litigation continued at least two years, followed by a two-year gap in the record. When the trial court finally addressed the issue in June 2010, it denied arbitration, saying Aurora's pursuit of the litigation prejudiced Ramsey by incurring considerable expense. Aurora appealed.

On appeal, the nursing home company got a second chance, although the issue wasn't fully settled. Under Alabama law, the Alabama Supreme Court said, denying arbitration is correct when the party seeking arbitration has substantially invoked the arbitration process and when the opposing party has been substantially prejudiced as a result. Ramsey failed to meet that second burden, the court found. The litigation expenses she incurred in the change of venue dispute cannot count under state law, it said, because defendants have the right to establish venue before compelling arbitration. The subsequent litigation expenses were primarily about discovery issues, the court said -- and these could not prejudice Ramsey because discovery would also have taken place in arbitration. Nor are expenses for opposing arbitration prejudicial. The court noted that Aurora had filed motions that would have been unavailable in arbitration, but that Ramsey didn't incur expenses responding to those. Thus, there was little evidence that Ramsey met the high burden of showing prejudice, it said. To determine whether she could meet that burden, the Supreme Court remanded the case to trial court.

As a Philadelphia injury lawyer, I wish Ramsey well in the remanded case. Arbitrators are not necessarily prejudiced against the plaintiff, but studies show that they can be. Arbitration can also remove one of the benefits of litigation -- shining a light on unsafe or illegal practices that lead to Pennsylvania nursing home abuse. Indeed, this may be enough to explain why nursing homes so vigorously pursue arbitration agreements in the first place -- so their dirty laundry stays unaired. Of course, nursing homes also wish to avoid the expense of litigation, which is part of the stated reason for arbitration. However, this argument is somewhat undercut by the pursuit of years of pretrial litigation, as the Alabama high court noted. As a Philadelphia medical malpractice lawyer, I do not believe businesses with more attorneys and more money at their disposal should be able to have their cake and eat it too.

Continue reading "Alabama High Court Remands Arbitration Dispute In Case of Delayed Motion to Arbitrate - Aurora Healthcare Inc. v. Ramsey" »

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" »

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 concerned to read about an outbreak of a water-borne disease in two Pittsburgh-area nursing homes. According to the Pittsburgh Tribune-Review, residents at two facilities in Turtle Creek, in the Pittsburgh suburbs, were diagnosed with Legionnaires' disease last week. Eight people fell ill at LGAR Health and Rehabilitation Center; three more patients were diagnosed at Hamilton Hills Personal Care Home. Three of the 11 patients had to be hospitalized. Because the disease is caused by a bacterium in water and spreads easily, both homes were using bottled water while they attempt to fix the problem and await test results.

Legionnaires' disease is life-threatening, particularly for children and the elderly. Rates of death for people who develop it in hospitals are as high as 50 percent. It is an infection with the bacteria Legionella, which is inhaled as water vapor from sources like showers, air-conditioners and humidifiers. Once it's in the body, victims develop a high fever and pneumonia-like symptoms that can include vomiting, diarrhea, confusion and even kidney impairment. No deaths in the Turtle Creek outbreaks were reported as of Sept. 15. However, the Tribune-Review added another victim to the total that day, reporting that the patient had previously been diagnosed with pneumonia. A spokesman for the Allegheny County Health Department said the department had already seen 50 or 60 cases this year. Nursing homes are especially vulnerable, he said, because they may keep their water temperatures low to avoid scalding fragile patients. LGAR had already heated and flushed its water, WTAE reported, and had also installed a special copper ionization system to prevent future outbreaks.

It's pleasing to me as a Philadelphia medial malpractice lawyer that this nursing home is taking quick action to solve its Legionnaires' problem. Because this disease is transmitted by inhaling, it's not uncommon to see outbreaks affecting many, many people within range of the infected water supply. In a nursing home, a closed environment that patients rarely leave, this could mean an outbreak affecting nearly everyone in the home. And because the disease is especially hard on older people with health problems -- the kinds of health problems that require nursing home care -- a Legionnaires' disease outbreak could be life-threatening. Medical authorities agree that the disease is relatively easy to prevent, by keeping water supplies at safe temperatures. As a Philadelphia injury lawyer, I don't believe this is difficult for nursing homes to do -- and could make a huge difference for nursing home patients.

Continue reading "Eleven People at Two Western Pennsylvania Nursing Homes Develop Legionnaires Disease" »

In my practice as a Philadelphia injury lawyer, I occasionally read about a legal doctrine called charitable immunity. We no longer have such a rule in Pennsylvania, but in neighboring New Jersey and other states, non-profit organizations can sometimes be immune from lawsuits -- no matter what they may be responsible for -- simply because they are incorporated as charities. That charitable immunity was tested in the Arkansas Court of Appeals ruling in McMullen v. Arkansas Elder Outreach of Little Rock, Inc.. In that case, Bobby McMullen sued Elder Outreach for alleged negligence when his father, William McMullen, was a resident there. Elder Outreach won dismissal of the lawsuit because it is not for profit, but the Appeals Court ruled that Elder Outreach waived the defense by failing to plead it early enough.

McMullen alleged that his father had suffered several injuries while under Elder Outreach's care, but the opinion did not go into details. The elder McMullen is now deceased. The younger one filed suit in August of 2006 and Elder Care answered in September that it is a nonprofit, but did not say it is entitled to charitable immunity. It moved to dismiss on that basis in October of that year. In his opposition to the motion, McMullen argued that Elder Outreach waived its charitable immunity by not citing it in the original answer. The motion was denied and discovery on the issue proceeded, and in March of 2009, Elder Outreach amended its 2007 for summary judgment on the basis of charitable immunity. This was granted, McMullen's post-ruling motions were denied and McMullen appealed.

Before the Arkansas Appeals Court, McMullen again argued that Elder Outreach had waived its charitable immunity argument by not bringing it up in its answer. This rendered it ineligible for charitable immunity, he argued, and thus summary judgment was incorrectly granted. The appeals court agreed. It noted that Elder Outreach not only failed to plead charitable immunity in its answer; it also failed to amend its answer according to the trial court's suggestion. Elder Outreach said it should be enough that it mentioned its nonprofit status in the answer; but the appeals court disagreed, noting that the Arkansas Supreme Court had already found this insufficient. Nor was its motion to dismiss a "responsive pleading" that can substitute for the answer, the court said. Thus, it reversed the trial court.

As a Pennsylvania nursing home lawyer, I'm pleased that McMullen will get his day in court. And that's all the court did at this stage -- allow McMullen a chance to prove his case. If Elder Outreach had been granted charitable immunity, it would have been able to dodge the lawsuit regardless of whether it had been negligent; the doctrine makes no distinction between cases with merit and frivolous cases. That's one reason why Pennsylvania and other states have abolished the charitable immunity doctrine. Applying it to nursing homes could potentially allow homes to commit Pennsylvania nursing home abuse and medical negligence with no consequences from the patients' families, although state regulators may still step in. As a Philadelphia medical malpractice lawyer, I'm pleased that our state gives victims the right to make their cases without overcoming the hurdle erected in this case.

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

As a Pennsylvania nursing home lawyer, I have been watching news about the state of Iowa's nursing home agency with some interest. Iowa is a battleground for proponents of safety in nursing homes because its governor, Republican Terry Branstad, is perceived by some as overly friendly with the nursing home industry. Branstad has taken campaign donations from nursing home companies, and during his first term as governor, he was cited by three separate state officials for failing to adequately regulate nursing homes. During this term, he has cited budget problems as a reason for cutting 10 Iowa state nursing home inspectors, bringing the office from 38 to 28, even though the positions were 75 percent federally funded. When the state Legislature restored the funds, the inspectors' department used them for something else. Now, the Des Moines Register reported Sept. 3, the Iowa Department of Inspections and Appeals, a state agency, has declined to turn over statistics it compiles to the Register or the ACLU of Iowa.

The Register asked the Department of Inspections and Appeals in July for answers to six questions about violations, time spent on inspections and uninvestigated complaints. The newspaper also requested two statistical reports the Department compiles for the federal Centers for Medicare and Medicaid Services. That agency adds the Iowa statistics to a federal database that is publicly available, and it also helps to fund the state Department. Saying the data belongs to the federal government, the Department declined to release the data. This got the interest of the ACLU of Iowa, which wrote a letter to the Department this month asking for the legal reasoning behind its refusal to release the information. In the letter, the ACLU's legal director noted that the federal government does not fund the Department completely and asked for letters, regulations or other rules the Department is relying on. CMS has given the Register the statistical reports in question, but the questions have gone unanswered. Answering them could tell readers how nursing home patients are faring in Branstad's era of looser regulation.

As a Philadelphia injury lawyer, I suspect the Department might not want to turn over the information because it could make the Department -- and the Branstad administration -- look bad. By cutting all of those nursing home inspectors, the administration was constraining the Department's ability to do its job. Thus, it would not be surprising to find that more problems at nursing homes are going unnoticed -- and thus, uncorrected. In fact, judging by Branstad's campaign comments that nursing home inspectors have a "gotcha attitude," it's possible that this was actually a goal for him. Regardless of what the voters of Iowa think of this, the dependent elderly and disabled people of Iowa deserve to be safe in their homes, not neglected or abused. That's why, as a Philadelphia medical malpractice lawyer, I hope the ACLU and the Register succeed in drawing attention to any problems they uncover under the Branstad administration -- both public attention and the attention of federal regulators.

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

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

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

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

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

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

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

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

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

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

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

As a Philadelphia injury lawyer, I was interested to read about a personal injury case against a nursing home that could not go forward -- not because the case was weak, but because nonprofit nursing homes are immune from many lawsuits in New Jersey. Edward Griffin et al. v. Bayshore Medical Center et al. brought two similar and related claims by two people injured in the same way at the Bayshore Nursing Home. Edward Griffin died of complications from a fall he took outside the home after he tripped on a protruding piece of sidewalk. Philomena Papa fell over the same protrusion about five month later and suffered permanent injuries. Papa, her husband, and the estate and son of Griffin sued the home and its associated corporate entities, but the Superior Court of New Jersey's Appellate Division found the home was immune under New Jersey's Charitable Immunities Act.

Griffin, 91, was on his way to visit his wife in the home when he tripped and fell on Oct. 16, 2007. The fall broke his C2 vertebra and landed him in the intensive care unit, where he stayed until his death the following Nov. 6. Papa, 86, was on her way to visit her husband in the home when she fell and broke several bones, including her kneecap and the orbit bone of one eye. She now relies on a cane. Both families brought their complaints in one suit naming Bayshore Medical Center, Bayshore Community Hospital and Bayshore Health Care and Rehabilitation Center. Bayshore Health Care Center is a nonprofit organization and part of a group of entities that also includes Bayshore Community Hospital. Bayshore Rehabilitation Systems Inc., however, is for profit. Despite the similar names and being located on the same road, the nursing home's parent entity said it was not related to Bayshore Rehabilitation Systems, and extensive discovery could not connect them. The trial court therefore granted summary judgment to the defendants and denied a cross-motion to file a new amended complaint.

Plaintiffs appealed, arguing that there was a genuine issue as to whether Bayshore Rehabilitation Systems made the nursing home a for-profit entity not entitled to protection under the Charitable Immunities Act. The Appellate Division disagreed. It noted that summary judgment was granted 13 months after the claim was originally filed, and after "a no doubt diligent search" by the plaintiffs that failed to come up with anything. The mere existence of a for-profit corporation with a similar name did not cast doubt on that status. Thus, there was no genuine issue of material fact to try. The court also denied their argument that they should have been granted leave to amend their complaint to allege gross negligence and recklessness, which would have given them an opportunity to avoid the Charitable Immunities Act. Gross negligence, the court said, is "wanton or reckless disregard for the safety of others" -- and it disagreed that failure to fix the protruding sidewalk qualifies as grossly negligent or reckless. The sidewalk protrusion of an inch and a half simply does not qualify, the court noted. Thus, it upheld both of the trial court's rulings.

As a Pennsylvania nursing home lawyer, I'm disappointed that these plaintiffs were unable to get their day in court. It should surprise no one that many of the visitors to a nursing home are older people themselves, because they are the loved ones of older people -- their spouses, brothers and sisters and friends as well as children and grandchildren. For older people, a trip and fall that a child might shake off can be life-changing, because it can cause injuries that rob them of their independence. As Griffin's family discovered, it can even be fatal if the victim is unlucky enough to fall on the head or neck. Leaving dangerous conditions like a tripping hazard unfixed is not Pennsylvania nursing home abuse as families normally think of it, but it is certainly dangerous and highly avoidable. As a Philadelphia medical malpractice lawyer, I'm glad Pennsylvania does not recognize a charitable immunities defense.

Continue reading "New Jersey Nursing Home Immune From Lawsuits as Charitable Organization - Griffin v. Bayshore Medical Center" »

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" »