Recently in nursing home news Category

April 16, 2014

Nursing Home Quality of Care Addressed in Latest OIG Report



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

Improve Care Plans Improve Nursing Home Safety

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

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March 19, 2014

Oklahoma Legislature Tackles Nursing Home Reform


Earlier last week, nursing home advocates took to the Oklahoma governor's office in hopes of initiating desperately needed nursing home reform talks. Of particular importance a meaty Oklahoma nursing home reform Bill, which sought to address many elder abuse and neglect concerns, was defeated last month. As a Pennsylvania and New Jersey nursing home abuse attorney I was interesting in a proposed Oklahoma House Bill 2901 much of which was geared towards supplementing elder care resources as a means of preventing nursing home abuse and neglect. House Bill 2901 was tailored to increase nursing home staff, create medical director oversight, and other measures. The House Bill did not make it to committee, but it did help shed light on staggering cases of elder abuse that on average is greatly underreported. The Oklahoma based grassroots long-term care reform organization, A Perfect Cause, estimates that more than 3,500 nursing home residents in Oklahoma die each year from nursing home abuse and neglect. The House Bill 2901 would have address preventable deaths and injuries in two separate areas of interest, mandated increased nursing staff, and the state required investigation of family members and the accused, while investigating elder abuse claims. As reported by Oklahoma's Own News 9, there were disagreements in the language and content of the bill, but lawmakers look optimistically to the next session in which to work out their disagreements. Wes Bledsoe, an advocate for nursing home reform, and President and Co-Founder of A Perfect Cause, estimates that about 62,000 cases of nursing abuse goes unreported nationwide. Underreporting is one of the many hurdles in addressing nursing home abuse and elder abuse on both a state and federal level.

Nursing home abuse reform has remained in Oklahoma's legislature since the December 2012, disturbing nursing home abuse that was caught on tape. A hidden camera in 96-year-old Eryetha Mayberry's nursing home room exposed the devastating abuse she was being subjected to on a daily basis by members of the nursing staff. Mayberry suffered from dementia, which requires greater care and more supervision as the patient's capacities diminish. Dementia patients are particularly vulnerable to unscrupulous residents and staff members in nursing homes that take advantage of a patient, knowing full well that their victim will not be able to fully recall the transgressions. Mayberry's daughter, Earlene Adkisson, installed the camera after she believed items were disappearing from her mother's room. The extreme instances of abuse caught on camera including rough handling, choking, blocking the resident's airways and more, totally shocked and horrified Mayberry's family. The reported images left many questioning whether "granny cams" or monitoring devices were needed to keep themselves and their loved one's safe. Oklahoma lawmakers say they have seen a rise in proposed legislation for the installation and monitoring of cameras in common areas of nursing homes. However, informed consent for monitoring in nursing homes is a complicated legal terrain, as you have to balance the general welfare of the residents and the individual resident's right to privacy. Many opponents strongly believe that the safer alternative is to add more quality staff to help ease the burden of daily care.

Continue reading "Oklahoma Legislature Tackles Nursing Home Reform " »

February 19, 2014

Federal Arbitration Act Pre-emption of Pennsylvania's Wrongful Death Act and Survival Act Upheld, Lipshutz v. St. Monica Manor


A recent ruling by the Court of Common Pleas in Philadelphia, upheld the federal and state public policy that favors promoting arbitration agreements. There are definite plus and minus to arbitration. Especially true with nursing home arbitration agreements, where the publics' knowledge of a nursing homes' safety record is greatly limited. Before placing a loved one into a facility checking their safety record of known allegation of serious abuse and neglect is of great importance. However, when a party is bound by contractual principles, which upholds arbitration agreements, instead of being able to file a lawsuit that is public record, these legal disputes are processed in a more private manner. It has long been touted as an efficient, and less costly alternative to trial litigation, enabling the courts to free up limited resources and time. Often, nursing home companies' favor, and accordingly place an arbitration agreement clause into their contracts, a contract which is required to be signed prior to admission into their facility. As was the case in Lipshutz v. St. Monica Manor, the Philadelphia Court of Common Pleas found that the survivorship action related to a wrongful-death case was bound by the arbitration agreement and further upheld by federal law.

In Lipshutz v. St. Monica Manor, the plaintiffs brought a wrongful death and survival claims on behalf of their deceased mother and her estate under Pennsylvania's Wrongful Death Act and Survival Act. Decedent suffered a stroke on November 4, 2011 at which time she was taken to Jefferson University Hospital. The decedent was discharged with an "impaired mental status" unable to care for herself. On November 11, 2011, decedent's daughter, plaintiff Elizabeth Lipshutz, acting as her mother's power of attorney, signed an admission agreement which contained within a mandatory arbitration clause. On May 16, 2013, plaintiffs alleged that the substandard care at St. Monica Manor was the direct cause of the decedent's untimely death.

Because the decedent's daughter acted with the authority and in a representative capacity, the court held that the survival claims had to be remanded to arbitration. At the time of the signing there was a valid contract supported by fundamental contract principles, such as a valid offer, acceptance, and consideration and that no traditional defenses to formation were available. The court held that the Federal Arbitration Act ("FAA") pre-empts Pennsylvania civil procedure rules, Pa.R.Civ.P. 213(e), which requires wrongful-death claims and survival claims to be litigated together.

In determining who was bound by the arbitration clause, the court looked to Pisanco v. Extendicare Homes, Inc., which determined that "one who is not a party to a contract cannot be bound by it, and that arbitration agreements are not binding on non-signatory beneficiaries." Here, her four children, three of whom did not sign an arbitration agreement with St. Monica Manor, survived the late Mrs. Lipshutz. Therefore, Elizabeth Lipshutz signing of the agreement in her capacity of power of attorney bound her late mother's decedent's survival claims to arbitration, but did not affect her own right or the rights of other surviving beneficiaries to bring wrongful death claims. While the Court of Common Pleas is not the highest court in Pennsylvania, if higher courts uphold the ruling, it can soon become precedent in the state.

Continue reading "Federal Arbitration Act Pre-emption of Pennsylvania's Wrongful Death Act and Survival Act Upheld, Lipshutz v. St. Monica Manor" »

February 10, 2014

Parking Lot Accidents and Older Adult Drivers


Earlier this month, in a devastating and gruesome parking lot accident, a group of pedestrians were run over after leaving church in Bradenton, Florida. At approximately 11:20 a.m. Sunday, February 2nd, 2014, 79-year-old Doreen Landstra, of Palmetto FL., was seen backing out from a handicapped space at the Sugar Creek Country Club. 1 pedestrian was declared dead at the scene, while 2 more were pronounced shortly after arriving at local area hospitals. Another 4 pedestrians were transported in critical condition; no word has been released at this time on their current condition. According to the Bradenton Herald, Florida Highway Patrol sighted Doreen Landstra the driver of the white Chevrolet SUV with "improper backing." If found guilt of this non-criminal moving violation, Florida's mandatory punishment imposed where there is a fatality involved, is a fine of $1,000 and suspension of one's license for six months. This week's earlier church parking lot accident was not the first for Landstra. Only two and a half years earlier, on July 28, 2011, Landstra accidentally drove her 2009 Chevrolet Tahoe into a McDonald's restaurant as she tried to pull into a parking lot space. The Centers for Disease Control and Prevention ("CDC") finds that as drivers age, their risk of being severely injured or killed in a motor vehicle crash increases. The most recent CDC statistics finds that nearly 500 older adults are injured daily due to motor vehicle accidents.

As a personal injury lawyer, practicing in both Pennsylvania and New Jersey, I understand the complexities and life-altering events a parking lot accident can have especially on our older population. Many older Americans can quickly have their freedom and quality of life greatly impacted if they are involved in a motor vehicle accident, both as a driver and as a pedestrian. In this case, 8 such lives were greatly affected by Sunday's parking lot accident. A tragedy such as being struck and run over by a car can require expensive medical bills, a long stay in a hospital, extensive physical therapy, and in some rare cases it may require that the injured party check into a long-term care facility, while they heal from the injuries sustained.

Nationwide, according to the June 2008 National Highway Traffic Safety Administration ("NHTSA") study, pedestrians are more likely to be fatally injured between the hours of 3 a.m. and 6 a.m. and especially during the weekend days of Saturday and Sunday. Parking lots in particular can seem like a mind field for drivers and pedestrians alike. As one ages their eyesight also degrades making it more difficult to see at dusk, and at night. On average, a vehicle fatally injures 13 pedestrians every day. While many do not consider parking lots a place to drive with added caution, such as in a school zone, in parking lots pedestrians and other vehicles can act unpredictability. Unpredictability when driving can increase the likelihood of being involved in a parking lot accident.

In Pennsylvania, if you are a driver over the age of 55, you are eligible to receive a 5 percent discount on your vehicle insurance, if you complete a Pennsylvania Department of Transportation approved Basic Mature Driver Improvement Course. In order to maintain the discount the driver would have to take a supplemental Refresher Mature Driver Improvement Course, every three years. The courses are offered through AAA, AARP, or Seniors for Safe Driving.

Continue reading "Parking Lot Accidents and Older Adult Drivers" »

November 4, 2013

Infectious Diseases Have Deadly Results in Older Patients


While the most frequent type of abuse and neglect reported in older patients tends to be physical abuse, the majority of mistreatment involves neglect or quality-of-life issues. When a caregiver fails to properly tend to a patient an infectious disease can set in. Infectious diseases account for one third of all deaths in people 65 years and older. Despite advances in antibiotic therapies, infectious diseases continue to be a major cause of death in older adults. Further frustrating the matter is that infections do not present themselves the same way in older patients. Nonspecific complaints and subtle changes in their cognitive impairments, as well as weight loss, are some of the signs indicating that an infection has set in older adults. The role of a caregiver is all that more important in tracking any physical and mental changes in their patients. It is not uncommon for a patient to form an infection especially when a catheter is being used, as was the case in Schoemaker v. Ganon, et al.

In October 2008, the plaintiff Shannon Schoemaker was receiving at home care serviced by defendants Concordia Hospital, Inc., and their agents. On October 13, 2008, Ms. Schoemaker was being fed through an indwelling catheter, the nurse attending to her, nurse Yapp, indicated that there were signs of redness at the site of the catheter. Despite the increase in infectious caused by a catheter and that Ms. Schoemaker exhibited early signs of a possible infection, nurse Yapp failed to take any further steps. There were no plans in place for a follow up even though Ms. Schoemaker displayed signs of a catheter-related line infection. In fact the nurse had no intention of checking on Ms. Schoemaker until eight days later. Two days after nurse Yapp indicated redness at the site of the catheter, Ms. Schoemaker called Concordia Hospital, Inc. Hospital Home Care as Ms. Schoemaker had developed an infection that progressed and rapidly worsened. When Nurse Yapp returned Ms. Schoemaker was in acute respiratory distress with mottled lower legs, purple nail beds, lips, and nose. Ms. Schoemaker was hospitalized for forty-two days and had multiple surgeries where both of her legs were amputated, as well as the tip of her nose, and her left pinky finger.

Before the Court of Common Pleas in Lehigh County the jury rendered a verdict in favor of Ms. Schoemaker where they found the defendants liable. The jury awarded a $23 million in damages to Ms. Schoemaker. While defense argued that the harm Ms. Schoemaker suffered was not causally connected to the infection at her catheter site, the jury concluded that the plaintiff was not contributorily negligent. This verdict is among the highest ever for a medical malpractice case in Lehigh County and among the highest in all of Pennsylvania. It goes to prove the importance of a quality caretaker, and how their decisions and the quality of care rendered can have life or death consequences for elder patients in their care.

Continue reading "Infectious Diseases Have Deadly Results in Older Patients" »

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" »

September 24, 2012

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


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

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

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

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

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

What was causing those disturbing bruises?

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

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

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

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

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

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

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

This is a deep question with potentially worrisome answers.

Continue reading "Pennsylvania Nursing Home Abuse: Out-of-State Case Highlights the Horrific Extent of the Problem" »

September 7, 2012

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


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

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

Consider these points:

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

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

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

An aggressive, successful advocate for victims and their families

Continue reading "Pennsylvania Nursing Home Sex Abuse News: Sick Charges against Nursing Home Workers in Nearby Staunton" »

July 19, 2012

As If We Didn't Have Enough Trouble with Pennsylvania Nursing Home Negligence and Abuse: Woman Stole Over $300,000 from 67-Year-Old Resident


Nursing home negligence and abuse in Philadelphia and elsewhere is a national epidemic - and a national disgrace.

But nursing facilities themselves are not the only parties who commit egregious, illegal actions. Witness the case of a Bensalem woman, who was arrested in June for allegedly stealing more than $300,000 from a 67-year-old woman living in an area nursing facility. Investigators say that 65-year-old Virginia Marquardt had obtained Power of Attorney for her neighbor, after the woman's husband passed away back in July 2007.

This power allowed Marquardt to control the woman's assets, money, and bank accounts. Marquardt then allegedly embarked on a series of abuses of her power and trust. First, she made herself a 50% beneficiary of the estate. Then, in the spring of 2008, she drew up a new will for the victim, naming herself as beneficiary of her assets to the tune of 50%.
If that wasn't insult enough, Marquardt then allegedly slowly stopped paying for woman's nursing home care. The outstanding balance for the care climbed over $20,000 in 2009.

By the end of that year, Marquardt had stopped paying the home entirely. She told the facility that the resident had run out of money. Meanwhile, the victim still possessed investments that had not been liquidated.

In 2010 and 2011, Marquardt did pay for some of the nursing home care, but the outstanding balance continued to grow. Investigators later found that Marquardt had siphoned off more than $300,000 of assets and used that money to pay for trips to Las Vegas, to buy luxury watches, and to pay off credit cards. Finally, in June, police arrested Marquardt and set her bail at $300,000. After posting 10% of that money, she was released, and the court system will now determine what will happen to her.

This case sounds very sad for a number of reasons. Assuming the allegations are true, who knows what motivated Ms. Marquardt to engage in this behavior? Furthermore, who knows how the 67-year-old's care might be affected by the financial double cross?
This situation illustrates how Philadelphia nursing home financial abuse cases can take years to surface.

Continue reading "As If We Didn't Have Enough Trouble with Pennsylvania Nursing Home Negligence and Abuse: Woman Stole Over $300,000 from 67-Year-Old Resident" »

July 11, 2012

Landmark Pennsylvania Nursing Home Case Could Change Balance of Burden: All About Health Care and Retirement Corp of America v. John Pittas


Pennsylvania nursing home negligence and abuse is obviously a huge problem. But a similar - and linked - issue is the cost of senior care.

Who should pay for a nursing home stay: the resident and his/her family... or the government? This question is at the core of a lot of nursing home legal disputes in Pennsylvania and elsewhere.

An Appellate Court ruling in the case of Health Care and Retirement Corporation of America v. John Pittas may have significant bearing on this debate, insofar as it may serve as a harbinger for a changing "balance of burden."
Here are the key details...

Pittas's mother had entered a Pennsylvania nursing home while recovering from a car accident. Although she had a pension and collected Social Security, her income amounted to just $1000 a month. This was obviously significantly less than the cost of her stay at the home. Over six months, she racked up unpaid bills of approximately $93,000.

To get paid, the nursing home leveraged Pennsylvania's filial responsibility statutes to try to get her son, John Pittas, to pay the $93,000 owed. Three-fifths of all U.S. states have filial responsibility statutes, which compel adult children to help pay for their parents' nursing home care, when the parents are indigent.

Interestingly, nursing homes can sue family members arbitrarily. Pittas argued that he was just one of many children who could have shared his mom's burden -- and that he was unfairly singled out. But the Appellate Court ruled that the nursing facility could go after him and not his siblings or his mom's other relatives.

Situations like the Pittas case are nuanced and trick. Medicaid cannot take into account the income and assets of adult children of elderly parents who need care, when the program determines eligibility. Likewise, once a person is already enrolled in Medicaid -- and becomes eligible for long-term benefits -- lawsuits like the one that hit Mr. Pittas become untenable.

In this particular case, the women had applied for Medicaid, but her application was pending. It hadn't gone through. So when she racked up her bills, the facility was allowed to sue her son.

The practice of compelling adult children to take care of aging parents has a long legacy - dating at least back to England's Poor Relief Laws from the 1600s.

Cases like this one have been relatively rare in recent years, but inside analysts are sensing a shift. They believe that these "let's make adult children pay for their parents' care" cases will become more and more common, given the escalating costs of senior care, forces urging the government to "turn down the flow" of funds for senior benefits, etcetera.


Continue reading "Landmark Pennsylvania Nursing Home Case Could Change Balance of Burden: All About Health Care and Retirement Corp of America v. John Pittas" »

June 20, 2012

Consolidated Opinion in West Virginia Nursing Negligence Cases: Could Federal Arbitration Act (FAA) Also Impact Your Case?


Did you recent lose a loved due to suspected Philadelphia nursing home abuse or negligence?

If so, you might find it instructive to read about a consolidated opinion handed down last week by the West Virginia Supreme Court of Appeals. The decision nicely demonstrates how higher level courts can powerfully influence lower level courts.

The case has many layers, so we'll walk through the details in a straightforward fashion.

The decision concerned three separate lawsuits -- each one pertained to a nursing home abuse/negligence tragedy. In each case, a family member had lost a parent or other loved one in an area nursing home due to negligence.

The nursing homes in question forced the plaintiffs to participate in arbitration, thanks to specific clauses in the homes' admissions contracts. These agreements compelled the plaintiffs to arbitrate disputes - not to sue over them.

Based on these agreements, the defendant nursing homes asked the courts to dismiss the plaintiffs' cases and send them to arbitration, instead. A County Circuit Court in Kanawha, West Virginia dismissed two of the suits on these grounds. A County Circuit Court in Harrison, West Virginia refused to weigh in and instead asked the West Virginia Supreme Court to step in.

In light of the confusion, last June, the WV Supreme Court took up the cases. The Court agreed that arbitration could be a useful way of managing disputes... but found that West Virginia's Nursing Home Act, which disallowed nursing home arbitration clauses in certain contracts, was pre-emptive under the Federal Arbitration Act.

The defendants obviously did not like this ruling! They appealed to the U.S. Supreme Court, which ruled in February and reversed the WV Court's opinion. Last week, based on the SCOTUS ruling, the West Virginia Supreme Court sent the suits back down to the Circuit Courts.

Chief Justice Menis Ketchum nevertheless voiced frustration: "many contracts... for admission [in nursing homes] are signed by a patient or family member in a tense and bewildering setting...it may be disingenuous for a nursing home to later assert that the patient or family member consciously...accepted an arbitration clause [and understood that it was] intended to eliminate their access to the courts, if the nursing home negligently injured or killed the patient."

This complicated and nuanced case demonstrates that even family members and patients who have been aggrieved may be limited in terms of options for justice and compensation.

To that end, if you or someone you love needs help with a potential Pennsylvania nursing home abuse or negligence case, look to the team here at Rosenbaum & Associates for experienced, compassionate legal guidance.

Get a free consultation today by connecting with us online or via phone.

April 25, 2011

Study Finds More Than Half of Those Hospitalized for Medication Errors Are Seniors


As a Philadelphia medical malpractice lawyer, I know medication errors are a major source of medical mistakes for patients of all ages. But I was disappointed to see an April 20 article about federal data showing that the majority of all medication error victims who wind up in the hospital are seniors. The data comes from the federal Agency for Healthcare Research and Quality, part of the Department of Health and Human Services. That agency found that medication errors have grown by 52 percent between 2004 and 2008, the last year it studied. That's 1.9 million people injured badly enough to need hospitalization, up from 1.2 people injured in 2004. Another 838,000 patients were treated in emergency rooms and released, 18 percent of whom were 65 or older.

The medication errors included errors patients made themselves and mistakes by caregivers providing the medicines. Reasons included overdoses, mistakes by pharmacists, bad reactions, mixing incompatible medications and more. The kind of drug that most often sent people to the hospital was corticosteroids, a class of drugs used to treat arthritis, asthma, inflammatory bowel disease and several other conditions. That class of drugs was responsible for 283,700 hospitalizations. Next most common were painkillers (269,400 cases), blood thinners (218,800), cancer and immune-system drugs (234,300) and heart and blood pressure medications (191,300). In emergency rooms, visitors most often didn't specify a drug, but also cited painkillers, antibiotics, tranquilizers and antidepressants, and corticosteroids.

This news concerns me as a Pennsylvania nursing home lawyer because people in nursing homes are likely to have complicated medical needs. Families generally put their loved ones in nursing homes when their needs are too constant or complicated for the families to handle themselves. For the same reasons, nursing home patients are less likely to be able to notice a mistake with medicine or speak up when they do. At the same time, nursing home employees can make mistakes or even intentionally make an unauthorized change in medication. Even the best intentions can fall flat when nursing homes are understaffed, robbing employees of the time they need to make sure details are right. And in some cases, employees have perpetrated Pennsylvania nursing home abuse by stealing painkillers from patients for their own use, intentionally giving inappropriate sedatives or withholding medication to save money. In either case, it's unacceptable for an institution we trust with the care of vulnerable older loved ones. Families who find themselves in this position should talk to a Philadelphia injury lawyer right away.

Continue reading "Study Finds More Than Half of Those Hospitalized for Medication Errors Are Seniors" »

March 21, 2010

Pennsylvania Families Should Monitor Nursing Home Patients' Care


The family of 54-year-old Rodney L. Volkening of South Elgin, Illinois, has filed a lawsuit against Tower Hill Healthcare Center, a South Elgin nursing home, for negligence in Volkening's care, reports the Elgin, Illinois Courier-News. Volkening had spina bifida, a permanently disabling birth defect that, combined with his other medical conditions, left him in need of constant medical care.

Yet when Volkening was admitted to a hospital after his time at Tower Hill, hospital staff observed that he had not been receiving proper medical care at all. His colostomy bag had exploded and there was "a large amount of stool around" him, according to Volkening's family's attorney, Craig Brown. According to the lawsuit, Volkening had severe bedsores "that were covered by an old dressing covered by stool. He had a fever of 107 degrees with apparently no anti-fever medication being given to him at the nursing home prior to his arrival." "Because he presented to the emergency room with poor oral hygiene and poor skin care," Brown said, hospital staff suspected abuse and negligence at the nursing home and filed a report with the Illinois Department of Human Services.

Volkening's death certificate lists a staph infection and pneumonia as the causes of his death. While the family's lawsuit does not allege that the neglect caused Volkening's death, Brown said that they are investigating whether the nursing home's poor hygiene led to the infection that caused his death. Regardless of the outcome of that investigation, Brown and Volkening's family still intend to hold the nursing home responsible for failing to live up to its "statutory obligation not to violate the rights of any resident, including the obligation not to abuse or neglect any resident," as laid out in the state Nursing Home Care Act. As a Philadelphia injury lawyer it is important to make sure a nursing home is living up to its obligations under both state and federal regulations.

It is sad that nursing home patients and their families are unable to depend on the professional integrity of nursing home staff to ensure patients' health and safety. As a Pennsylvania nursing home abuse lawyer, I have seen many cases involving neglect that led to serious illness or wrongful death.

Continue reading "Pennsylvania Families Should Monitor Nursing Home Patients' Care" »

March 19, 2010

Story Ends With Ray of Hope for Pennsylvania Nursing Home Neglect Victims


The Gary, Indiana Post-Tribune ran several articles recently about the demise of Northlake Nursing and Rehabilitation Center, a nursing home that was so consistently negligent in its patient care that the Indiana State Department of Health first suspended its license and ultimately issued an emergency closure order. As a Pennsylvania nursing home negligence lawyer, I was glad to read that authorities took action to save patients from being abused further, and I hope that the patients who were harmed are able to recover.

The Post-Tribune recounts a number of horrible instances of abuse at the nursing home. Mary Ann Jackson, 51, was at Northlake because she had suffered a stroke. She came to the nursing home with one bedsore, but during her stay, it spread to become a massive sore across her legs and buttocks. Jackson's sister said that when family came to visit her, staff members would bandage Jackson's sores to make it appear as if she was recovering, when in fact she was getting worse. "Nearly her whole behind was gone," said Shelli Jackson, Mary Ann's sister. "You could see the muscles and ligaments down to the bone. Her bedsores were so bad she was stuck in a fetal position with her legs glued together." A state inspection of Northlake found that the nursing home had failed to alert Jackson's doctor to problems such as her high blood pressure, heart failure, vomiting and significant weight loss.

After just one month in the nursing home, Mary Ann was transferred to a hospital and the family was advised that both of her legs needed to be amputated. The family refused and moved her to another hospital, where staff recommended that Mary Ann go into hospice care. The family chose not to follow this advice either. Miraculously, Mary Ann is recovering. "She's much better now," said Shelli. "Her minor bedsores are healing and she'll need skin grafts. She talks. She doesn't have renal or heart problems, but she's still struggling with the changes and she'll need wound care for the rest of her life. The good news is they said she'd be dead in a month and it's been four months."

Mary Ann finally transferred to Lawrence Manor Healthcare Center in Indianapolis. Rick Lipscomb, director of social services and admissions there, was horrified by Mary Ann's condition and said that he had never seen a case like hers in his 21 years in the field. "She had one foot in the grave," he said. "I don't know how she didn't die. I've seen animal carcasses on the side of the road that looked better than when she arrived here from another nursing home. ... People should go to jail for what happened to her." Sadly, Mary Ann's case was just one of many stories of abuse and neglect in the Post-Tribune's articles about Northlake.

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March 5, 2010

Nursing Home Director Charged With Neglect for Ignoring Suspicious Patient Deaths


A legal case out of Chicago caught the eyes of our Pennsylvania nursing home abuse lawyers. The Chicago Daily Herald reported Feb. 25 that the former director of a nursing home is being tried for neglect and obstructing justice for her role in a scandal involving a nurse who allegedly euthanized patients. Penny Whitlock, 60, directed the Woodstock Residence Nursing Home during a series of suspicious deaths in 2006. Nurse Marty Himebaugh is accused in the case of "playing Angel of Death" by giving dangerously high doses of drugs to selected patients.

Himebaugh is accused of causing at least four deaths at Woodstock. At first, investigators thought these were "mercy killings," but state investigators later found evidence that she chose patients who she thought were difficult or annoying. Other nurses reported to Whitlock that Himebaugh was acting strange and once said she'd given a patient a cocktail so she wouldn't bother her during her shift. Himebaugh faces felony charges of neglect and possession of a controlled substance. Whitlock herself is accused of failing to follow up on those and other complaints, even allegedly saying Himebaugh could "continue to play Angel of Death." Both women face a maximum of three years in prison, and are also targeted by civil nursing home abuse lawsuits from victims' families.

Our Philadelphia nursing home negligence attorneys wish those families the best of luck pursuing justice from Himebaugh, Whitlock and Woodstock. From an earlier story, we learned that prosecutors have chosen not to charge either woman with murder because they're not sure they can prove that charge beyond a reasonable doubt. In cases like this, families may have no chance to hold wrongdoers responsible in the criminal courts. Instead, they can turn to the civil courts, where the standard of proof is slightly lower -- a preponderance of the evidence. This allows them a day in court as well as a chance to recover damages for the pain, suffering and expense of a severe nursing home abuse case.

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