PENNSYLVANIA NURSING HOME ABUSE ATTORNEY BLOG
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One of the most high-profile and saddening things I do as a Pennsylvania nursing home lawyer is representing victims of physical abuse and their families. Pennsylvania nursing home abuse encompasses more than just hitting, but physical violence does happen, and it’s completely inexcusable. Such an incident apparently occurred Feb. 7 in Washington County, Penn., outside Pittsburgh. According to a March 16 article in the Pittsburgh Post-Gazette, 34-year-old Michael Ashmore, an employee at the Washington County Health Center, is accused of snapping a towel in the face of a 93-year-old resident, and attempting to punch and choke the man.

Few details about the incident were available. According to the article, Ashmore is charged by Chartiers Township police with simple assault, neglecting to care for a dependent person and making terroristic threats. He has been fired from his job at the state-run home as well. Though the incident occurred in early February, reports of the arrest and charges began surfacing March 15. The Post-Gazette said officials at the home waited to report the incident until after they had finished an internal investigation. All three of the charges are misdemeanors, and Ashmore could face a wide range of penalties, including jail or prison time. However, the incident also likely means Ashmore will be ineligible to work with nursing home or dependent patients in the future.

As a Philadelphia medical malpractice lawyer, I hope that’s the case. Pennsylvania nursing homes are supposed to do criminal background checks on all new employees, and decline to hire people with certain convictions in their past. However, as a recent federal study showed, nursing homes across the nation have still employed people with criminal convictions that should have disqualified them. There are many reasons for this: incomplete databases, no state law requiring a background check and allowing employees to start work before the background check comes through. Unfortunately, some homes even intentionally ignore or sidestep the background check requirements, irresponsibly letting inappropriate people loose to abuse or neglect vulnerable sick or elderly people. When homes hire people they knew or should have known were unqualified as caregivers, they leave themselves liable in lawsuits by injured patients and their families.
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As a Pennsylvania nursing home lawyer, I’ve followed the controversy over using antipsychotic drugs to control the behavior of patients with dementia in nursing homes. Much of the media coverage of this has focused on the use of Risperdal, but on March 10, 37 states announced that they’ve settled a lawsuit over another antipsychotic, Seroquel (quetiapine), with manufacturer AstraZeneca. The lawsuit accuses AstraZeneca of deceptive marketing, in part because Seroquel is not FDA-approved for treating any disorder other than schizophrenia, bipolar disorder and sometimes depression. Even more alarmingly, the manufacturer was accused of hiding negative results from studies on Seroquel’s safety and effectiveness, and failing to disclose side effects. It will pay $68.5 million to 37 states; seven others are still pursuing separate lawsuits. The settlement is on top of a $520 million settlement AstraZeneca paid to the federal government last year in a similar lawsuit.

Doctors may prescribe medications off-label for any purpose they wish, but manufacturers are forbidden by law from promoting them for any unapproved purpose. The lawsuit against AstraZeneca alleged that it promoted Seroquel for Alzheimer’s, dementia, anxiety and unapproved forms of depression. It also alleged that the company suppressed information about the potential for patients taking Seroquel to develop diabetes and high blood sugar. In the federal lawsuit, an email was made public in which one company official praised burying a negative scientific study as “a great smoke and mirrors job.” In addition to paying the states, the company also agreed in the settlement to stop providing financial incentives for off-label marketing; ask salespeople not to promote it to doctors who are unlikely to prescribe it for an approved use; and publicize any payments to doctors on a website.

This settlement is good news for patients, families and Philadelphia medical malpractice lawyers like me. Misuse of antipsychotics in nursing homes is a serious and potentially widespread problem. Antipsychotics are powerful neurological drugs that carry significant side effects and interact with other drugs. In addition to diabetes and high blood sugar, Seroquel’s concerning side effects include cardiovascular problems, increased appetite, increased risk of death, increased risk of seizures and pronounced sedation. In fact, critics call use of antipsychotic drugs in dementia patients “chemical restraint” because they can leave the patients incapacitated and uncommunicative. This takes away the need for understaffed nursing homes to control dementia patients’ behavior — but it also takes away their ability to fully experience life or communicate when something is wrong. In my opinion as a Philadelphia injury lawyer, this is a form of Pennsylvania nursing home abuse that patients should not have to endure.
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As a Pennsylvania nursing home lawyer, I know criminal backgrounds are an ongoing problem in Pennsylvania and across the nation. Criminal background checks are required by state law in Pennsylvania and 42 other states, but the databases used can be incomplete and the employees sometimes start before the check is complete So I was extremely interested to see a report about a new federal study saying the vast majority of nursing homes have hired a convicted criminal in the past. As CBS reported March 2, the federal Department of Health and Human Services also found that about half of the homes had hired five or more people with criminal convictions.

The Inspector General of HHS conducted the study by checking names of about 35,000 employees at 260 facilities against the FBI’s list of convicted criminals. The study found that five percent of all nursing home employees examined had at least one criminal conviction. The majority of the crimes, at 44 percent, were property crimes — theft, shoplifting or bouncing checks. Another 12.5 percent were convicted of crimes against a person, such as assault and battery. Perhaps most disturbingly, seven of the 35,000 employees were registered sex offenders. And 16 percent of the convictions had come after the employee was already working in nursing homes. The inspector general recommended that nursing homes use a nationwide criminal background check program. In fact, such a program was passed along with the Obama administration’s controversial health care bill, but each state’s participation is voluntary.

As a Philadelphia injury lawyer, I believe it would best serve patients if participation were mandatory. I’ve written here several times about criminal convictions for nursing home employees, and one theme I’ve noticed is incomplete background checks. Convictions from Pennsylvania might show up in Pennsylvania’s database, but convictions from New York or New Jersey might not. Some of this is simple bad record-keeping, but as CBS noted, only 10 of the states that require background checks require use of the FBI database. That means someone with a problematic history, including a history of nursing home abuse, sexual assault or opportunistic theft can slip under the radar simply by moving to a new state. In my opinion as a Philadelphia medical malpractice lawyer, this puts nursing home patients at an unnecessary risk. Nursing homes could be legally and financially liable for any Pennsylvania nursing home abuse that sloppy background checks fail to prevent, so careful background checks are also in their best interests.
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More than a year ago, I blogged about a major lawsuit against pharmaceutical company Johnson & Johnson. The issue is interesting to me as a Pennsylvania nursing home lawyer because J&J was accused of paying kickbacks to Omnicare, the nation’s largest provider of drugs to nursing homes, for using its products. Among those products is Risperdal, an antipsychotic that was widely used to control dementia patients’ behavior until scientists realized it actually hastens death in the elderly. Last week, a federal judge declined to dismiss the lawsuit, which is being pursued by the U.S. Justice Department because the fraud allegations affect Medicare. Also in late February, a former J&J employee filed a related whistleblower lawsuit alleging that the company also defrauded Medicaid by concealing discounts the government should have been entitled to receive.

The new lawsuit was filed by Scott Bartz, a former sales employee of the pharmaceutical company. Drug manufacturers are required to give Medicaid the same price as the lowest price given to private companies. Bartz alleges that J&J intentionally concealed discounts to others in order to inflate its prices to Medicaid for drugs including Risperdal and others given to nursing home patients. In this, he claims, J&J was aided by Omnicare and distributor McKesson. Meanwhile, the decision in the earlier whistleblower suit means J&J must defend itself in court against allegations that it paid Omnicare to increase the sales of antipsychotics in nursing homes. Omnicare has already paid $98 million to settle its portion of the Justice Department lawsuit.

As a Philadelphia injury lawyer, I’m pleased that so many of these allegations are getting their day in court. Science has shown that Risperdal and other atypical antipsychotics are dangerous for elderly people, yet those antipsychotics were prescribed heavily until the FDA took action. To make matters worse, all of those prescriptions were off-label, which means the drug was never approved to control dementia patients — it was only ever approved for use in psychotic patients. That means safety studies focused on safety in those patients, not in the elderly or demented. Using drugs off-label in this manner as “chemical restraints” can be considered a form of Pennsylvania nursing home abuse. If you believe your loved one suffered or died because of this practice, don’t hesitate to contact a Philadelphia medical malpractice lawyer to learn about your rights and legal options.
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As a Pennsylvania nursing home lawyer, I’ve written here several times before about the controversial practice of using psychiatric medications to control the behavior of dementia patients. Dementia can make patients argumentative or violent towards others, and it can also cause them to put themselves in danger. As a result, it’s become a common practice to prescribe antipsychotic medications to these patients “off label,” which means the drugs aren’t approved for controlling dementia symptoms. I and many other Philadelphia medical malpractice lawyers have criticized the practice as unsafe, especially after studies began showing that certain atypical antipsychotics actually increased the rate of death in dementia patients. Now, a New York Times Well blog entry dated Feb. 15 suggests an alternative: a pilot project at Minnesota nursing homes that seeks to replace drugs whenever possible with behavioral interventions.

The Awakenings project trained the entire staff of one nursing home in how to calm and reassure patients, and talk to them without insisting on facts that the patients won’t accept as true anymore. The home’s director of nursing said just holding the patients’ hands is sometimes enough to calm them down. When those steps were in place, the home began to reduce or eliminate psychiatric medications whenever possible and agreed to by the families. In the end, all of the residents taking antipsychotics and 30 to 50 percent of those taking antidepressants were able to stop the medications. The post said the behavioral interventions were expensive because they required two additional staff members, but the results were so strong that the program has been expanded to all of the homes owned by this home’s parent company.

The experiment also uncovered the reasons for the outbursts from one patient, an unnamed woman in her 90s. The woman would grimace and cry out, had never spoken once since she entered the home and showed no clear signs of recognition when her children visited. At the beginning of the project, she was on the antipsychotic Risperdal, the anxiolytic Ativan and an antidepressant. But after Awakenings took her off most of her psychiatric medications, she was able to speak enough to tell caregivers that she was crying out in physical pain. She was also able to communicate with her family and even take part in games at the home before she eventually died of complications from the dementia.

As a Philadelphia injury lawyer, I’m pleased to see that nursing homes are considering alternatives to medicating dementia. As the post notes, medications are sometimes called “chemical restraints” because their purpose seems to be less to treat a medical problem than to make the caregiver’s life easier. This essentially robs the patient of his or her ability to live fully so that nursing homes don’t have to pay for the full amount of staff members they need (with Medicare, Medicaid or the family picking up the bill). As this blog post shows, it can also keep patients from communicating their actual medical or personal needs. And even worse, it’s now well established that atypical antipsychotics increase patients’ risk of stroke, diabetes and other serious health problems that are only exacerbated by age. Under these circumstances, using drugs as a substitute for adequate staffing could be considered a form of Pennsylvania nursing home abuse.
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As a Pennsylvania nursing home lawyer, I was shocked and saddened to read about the death of a nursing home patient at the hands of another patient. The Tribune-Democrat of Johnstown, east of Pittsburgh, reported Feb. 14 that 70-year-old Theodore Shaw died at the Cambria Care Center in Ebensburg after another patient repeatedly slammed a door into his head. The second patient has not been named, but has been transferred to a secure dementia ward in another nursing home owned by the same parent company. Both men were residents of the secure 60-bed dementia ward at the Cambria Care Center. Both the state police and the Pennsylvania Department of Health are investigating the incident, including whether the men’s dementia played a role.

A spokesperson for the nursing home’s parent company, Grane Healthcare, said the perpetrator had never shown any indication of violence in the past. But on the evening of Feb. 12, nursing home staff members reportedly found him repeatedly slamming a door into the head of Shaw as he lay on the ground. They believe it was intentional. Two workers suffered reportedly minor injuries as they tried to stop the attack, but Shaw died in a hospital two days later. In addition to the criminal investigation by Pennsylvania state police, the Department of Health is looking into whether either patient should have had constant supervision. If it finds that Cambria Care Center should have supervised the patients more closely, the nursing home would be required to come up with a plan to correct the problem and could also face fines or other penalties.

As a Philadelphia medical malpractice lawyer, I certainly hope this home is not guilty of lax supervision. Most people think of Pennsylvania nursing home abuse as an act committed by caregivers. This does happen and is inexcusable, but danger can also come from other residents. That’s especially true for dementia patients, who are literally not in their right minds. Because dementia patients can hurt themselves or others without realizing it, nursing homes have a special obligation to watch them closely – including separating them into special wards, as this home did. Failure to correctly supervise patients could constitute nursing home neglect. When a patient is hurt as a result of this kind of neglect, families should talk to a Pennsylvania injury lawyer about their legal options for securing justice and fair financial compensation.
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As a Pennsylvania nursing home lawyer, I was very interested in a report of trouble at a Pittsburgh-area nursing home. As the Pittsburgh Business Times reported Feb. 9, Katera’s Kove in Beaver County has been cited and fined and had its license downgraded by the state for the second time in about six months. The 79-bed facility in Wampum, Penn. received a second provisional license Jan. 31, after receiving a first one last July. It was also cited for problems including inadequate staff training and re-using medical equipment, which raises sanitation issues. Katera’s Kove Inc. has until Feb. 17 to correct those problems or face fines of $1,704 a day. Its owner, Lynn Katekovich, said this would not be a problem.

Last year’s inspection of Katera’s Kove resulted in an admissions ban, fines and citations for problems including improper food storage and failure to document when medication was given. At that inspection, it had four repeat violations, including allowing smoking in unapproved areas, missing equipment from first-aid kits and burned out light bulbs in six rooms. Katekovich said at the time that she felt the DPW’s enforcement was selective and planned to appeal. That appeal did not happen, and the admissions ban was lifted. The late January inspection found more problems, including the re-use of a glucometer and its equipment with multiple patients. The devices test diabetics’ blood to monitor blood sugar, and use disposable lancets to pierce the skin for sanitary reasons. Katera’s Kove was cited for disinfecting this equipment with alcohol and re-using it. Katekovich said this had been approved by the DPW in the past, but “all of a sudden you get an inspector who doesn’t think it’s sanitary.”

As a Philadelphia medical malpractice lawyer, I agree with that inspector. In fact, so does the Pennsylvania Department of Public Welfare, which specifically warns against (PDF) using the same glucometer, lancets and test strips in multiple patients. This is an important part of basic sanitation for any medical facility, but it’s especially important at a nursing home, where the elderly and immune-compromised population lives in a close space that encourages the spread of disease. No doubt re-using a glucometer and equipment saves money, but an outbreak of disease spread in this way could harm the patients and eventually cost far more, in medical costs and costs related to a Pennsylvania nursing home abuse lawsuit. If this is typical of the home’s attitude toward sanitation, it’s no surprise that the DPW is keeping an eye on Katera’s Kove. As a Philadelphia injury lawyer, I hope the inspection and publicity improves policies at this home before a patient is harmed Continue reading →

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As a Pennsylvania nursing home lawyer, I was interested to read an article about an ongoing debate in the state legislature on cutting Medicaid costs to balance the budget. The Pocono Record reported Feb. 1 on the proposal and the debate surrounding it in Harrisburg and around our state. New governor Tom Corbett campaigned in part on a promise to cut the budget, and he had enthusiastic support in some areas. But state Sen. Pat Vance, who is a former nurse, told a York County audience recently that there just isn’t much left to cut because most of the Medicaid funding goes to the elderly and disabled. The state Department of Public Welfare said the elderly are the fastest-growing group of Medicaid recipients in Pennsylvania.

Medicaid costs are a problem in every state, with an aging population and medical advances that prolong lives. In Pennsylvania, the elderly are 14 percent of all Medicaid recipients but incur 33 percent of costs. About 50,000 of the estimated 2 million Pennsylvania Medicaid enrollees are in nursing homes; another estimated 35,000 are in alternative care such as small group homes or in-home care. Vance promoted in-home care in her speech, noting that it’s less than half the cost of nursing homes ($25,000 instead of $60,000 per patient per year). Ironically, however, alternative care may be cut from the state budget because that coverage is not federally required, as nursing home care is. Stuart Shapiro, president of the industry group Pennsylvania Health Care Association, said cutting in-home care would likely mean family and friends would care for the recipients instead, with “a tiny percentage” going to nursing homes.

As a Philadelphia injury lawyer, I find that difficult to believe. Families use in-home caregivers because they don’t usually have the skills needed to care for someone with a serious disability, or the money to quit their jobs and become full-time caregivers. Families who lose their safety nets would likely turn to Medicare or even sell an older loved one’s home in order to get that person needed, professional care. That would be a shame, because in-home care offers advantages beyond financial savings. Keeping patients in familiar settings is easier on them personally, and in-home care avoids some of the institutional problems with nursing home care. Caregivers are more likely to be consistent and familiar with the patient’s needs, and less likely to be overwhelmed by work and forget important things or commit Pennsylvania nursing home abuse. And of course, no community of other patients reduces exposure to communicable diseases. As a Philadelphia medical malpractice lawyer, I hope the state takes a long view on elder care when doing the hard work of cutting the budget.
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As a Pennsylvania nursing home lawyer, I was interested to see a study saying unnecessary treatments may be one reason for the growing cost of caring for the elderly. As the New York Times New Old Age blog reported Jan. 21, a study published in the Archives of Internal Medicine found that some of the most expensive treatments for late-stage dementia patients are also the most unnecessary ones. These included hospitalization and related after-care. In fact, author Dr. Susan Mitchell said in addition to being avoidable, these hospitalizations can be traumatic and confusing for dementia patients and may make them uncomfortable when antibiotics are used.

Mitchell and her colleagues at the Hebrew Senior Life Institute for Aging Research studied Medicare spending for 300 patients in greater Boston over 18 months. The largest share of the spending, 30 percent, went to hospitalization; 10 percent more went to skilled nursing administered after the hospital. Many hospitalizations were for pneumonia or related respiratory problems, which are common problems for dementia patients. However, Mitchell said, about 75 percent of the hospitalizations were for ailments that could have been treated just as well in the nursing home. In addition to being less expensive, leaving the patient in the home could also avoid the emotional trauma to patients who don’t understand why they’re being moved. And in patients near the end of their lives, palliative care may be preferred by some, the post said. Mitchell added that nursing homes may hospitalize patients they can treat on-site to shift costs from Medicaid to Medicare, which pays higher rates.

Any unnecessary medical treatment is a bad sign to me, as a Philadelphia medical malpractice lawyer. In addition to being expensive and traumatic, sending patients to the hospital unnecessarily puts them at risk of infection, medication mistakes and other problems that can arise from a change in caregivers. Even the emotional trauma can have significant effects on a patient with already compromised health, and physical injuries could send that patient into a health decline that could even end in death. If Mitchell is right that nursing homes do this to make a bit of extra money, that’s even worse — because it explicitly puts the nursing home’s profits ahead of the best interests of the patients, their families and the taxpayers. Patients who believe their loved ones have been used as pawns in this way should talk to a Philadelphia injury lawyer right away.
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As a Philadelphia medical malpractice lawyer, I was interested to see a recent report on the ongoing funding problems for nursing homes that accept Medicaid. The American Health Care Association, a nonprofit long-term care trade group, released a study last week showing that nationally, state Medicaid programs underpaid nursing homes by $5.6 billion. That works out to a national payment of $7.17 per hour per patient, which the AHCA points out is below the current minimum wage. The states with the seven biggest funding shortfalls included Pennsylvania, at number six, and neighbors New York, New Jersey and Ohio.

The study (PDF) was commissioned by AHCA and performed by private company Eljay LLC. It puts Pennsylvania’s projected funding deficit for 2010 at $15.13 per hour per patient. The deficits come from the difference between the “allowable costs” for Medicaid services and what Medicaid pays homes. The actual cost of providing nursing home services might exceed Medicaid allowable costs, the report said, which means the shortfall might be even bigger. This is a major issue for nursing homes because Medicaid makes up about 64 percent of their funding, along with Medicare, long-term care insurance and private payment. A separate study published in the Archives of Internal Medicine found that nursing homes eliminated about five percent of their beds between 1998 and 2008 because of budget cuts, with a disproportionately high number of those beds disappearing in communities with high percentages of minorities or poverty.

This issue is interesting to Pennsylvania nursing home lawyers like me because funding has a direct effect on the quality of care patients receive. If, for example, nursing homes choose to let go of staff members, those staff members have less time to spend with each individual patient, and may be tempted to leave more often for higher-paying jobs elsewhere. The results can be disastrous, including patients allowed to wander without supervision, staff members who don’t notice bedsores or other problems, distracted aides who mix up drugs and overworked staff members giving inappropriate dementia drugs just to keep patients cooperative. These and other cutbacks can expose patients to unacceptable Pennsylvania nursing home abuse, which means adequate funding for elder care must be a priority.
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