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

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

In my experience as a Philadelphia injury lawyer, this problem is not limited to working-age adults or children. Frequently, disabled elderly people are able to live at home with some help, but the systems aren’t in place to make that possible. This forces them to leave home, often against their will, and accept far more expensive institutional care under Medicaid. That’s especially disturbing because nursing homes are not necessarily safer than living at home. Away from loved ones or neighbors who know them, and in the care of facilities that stretch their staffs too thin, patients can become victims of Pennsylvania nursing home abuse. And the abuse can lead to even more serious health problems, including expensive hospitalization or chronic problems that could truly require an institution. As a Philadelphia medical malpractice lawyer, I think Pennsylvania’s disabled people, seniors or not, deserve better.
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I’ve written here before as a Philadelphia medical malpractice lawyer about the onerous requirements in many states for filing a medical malpractice claim. Medical malpractice is a common assertion in cases of Pennsylvania nursing home abuse, but it’s so politicized that it’s much more difficult to file a medical negligence claim than it is to file a general negligence claim. Among other things, plaintiffs in many states, including Pennsylvania, must file an expert’s affidavit with the lawsuit to show that at least one expert believes the case has merit. A missing or inadequate affidavit is a reason for the dismissal of many medical malpractice lawsuits, and that was the problem in PM Management-Trinity NC v. Kumets, a Texas Supreme Court case that found an affidavit is needed even for a non-malpractice claim based on the same facts as the malpractice claim.

Yevgenia Kumets was admitted to a nursing home in Texas to recover from a stroke. While she was there, she suffered a second stroke. Some of her family believed that poor care she suffered at the home was responsible for the second stroke, though the opinion doesn’t detail their complaints. However, she was discharged from the home after the family complained about her treatment, leading the family to believe she was retaliated against. The Kumets family sued with claims for medical negligence, ordinary and gross negligence, negligence with employees, breach of fiduciary duty and contract, fraudulent billing, violations of the state Deceptive Trade Practices Act and retaliation, as authorized by a statute. They filed an expert report, but the court ruled it was deficient and an amended report didn’t cure the defects. The court dismissed all their claims except retaliation.

The two sides cross-appealed, arguing that various claims were or were not health care liability claims subject to the expert affidavit requirement. A divided Court of Appeals affirmed the ruling, saying a health care liability claim must involve “injury or death of the claimant,” and the retaliation claim asserted only economic loss.

The Texas Supreme Court reversed that decision, siding with the dissent in the Court of Appeals. The high court had previously held that any claim based on the same underlying facts as a health care liability claim is also a health care liability claim, and thus subject to the expert report requirement. As the court had noted in a prior case, 2010’sYamada v. Friend, Texas law does not permit plaintiffs to circumvent the expert report requirement through “artful pleading” or splitting claims. It noted that it was not holding that all retaliation or discrimination claims are health care liability claims, or even that the breach of fiduciary duty claim brought by the Kumetes is such a claim. But the Kumetses did not appeal the dismissal of that claim, the court said. It reversed the Court of Appeals and remanded with orders to dismiss the retaliation claim.

As a Pennsylvania nursing home lawyer, I think this ruling will not do any favors to Texas patients who have suffered serious injuries from abuse or neglect in a nursing home. The expert affidavit requirement is expensive and time-consuming at a time when victims are already facing a deadline and, often, high medical bills and relocation costs related to the underlying abuse. It also inappropriately shifts extra burdens to the plaintiff, because no expensive expert is required to certify that the defense’s arguments have merit. Applying it to claims that are not about medical malpractice makes it harder to recover fair compensation–and easier for nursing homes to continue providing shoddy care. As a Philadelphia injury lawyer, I don’t believe it’s good for anyone to protect bad nursing homes from consequences.
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Camay Williams brought a wrongful death and survival action against Willow Terrace and Albert Einstein Health Network on behalf o f Marcel Mackey, claiming that various healthcare workers were negligent in their care and treatment of Marcel.

Marcel was a very sickly man when he entered the care of these hospital providers in 2007 complaining of thirst and incontinence. He had a history of two above the knee amputations, diabetes, multiple strokes, dementia and various other maladies. While he was at the hospital he developed a pressure ulcer on his sacrum. When he was transferred to a long-term care hospital it was noted that there was an infection in the ulcer. Marcel was eventually transferred to Willow Terrace and had several brief admissions to Albert Einstein Medical Center (AEMC). The admission to AEMC noted dehydration, malnutrition, pneumonia, worsening of the ulcer, poor hygiene, and infections.

Marcel passed away a little over a year after his initial admission. His death certificate lists, among other things, severe end stage ulcer. Camay argued that substandard care, staffing, assessments, oversight, and administration, led to Marcel’s death.

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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.
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Unfortunately, there are people who willingly take advantage of the elderly people in our lives. You may discover that an elderly member of your family has signed a document which appears to eliminate the possibility of bringing a claim for injuries they suffered. That was the case in Philadelphia, where the executor of the estate of Richard MacPherson sought to bring an action for the abuse and neglect Richard suffered while a resident at several hospitals and nursing home facilities.

The defendant health care facilities sought to introduce an arbitration agreement signed by Richard that would have forced his executor into arbitration and set the terms of the arbitration instead of being allowed to file a complaint in Common Pleas Court. The agreement Richard had signed required, among other things, that whoever lose in arbitration pay attorneys’ fees and costs, arbitration costs be divided equally, there be no jury trial and that there be a very limited right to appeal the arbitration decision.

The defendants relied on a case called Williams v. Penn Center Rehabilitation and Care, when they claimed that the executor could not file a case and must comply with the terms of the arbitration agreement. There, Mr. Williams testified during a deposition and stated that he understood the process and knew what he was signing when he signed it. In Richard’s case, however, he had lost more than twenty pounds in a matter of two months. He was incontinent and entirely reliant on facility staff. His body was covered in blisters, scar wounds, necrotic tissue and lesions. Richard also suffered from various medical maladies including chronic obstructive pulmonary disease, congestive heart failure, depression, Hepatitis C, diabetes and substance abuse. Richard had passed away before this case was filed and therefore could not testify at a deposition regarding his understanding of the arbitration agreement he had signed. Further, defendants’ representative who had presented the paperwork to him had no recollection of her conversation with Richard.

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As a Pennsylvania nursing home lawyer, I’m very interested in the recent series of appeals court cases about whether a binding arbitration contract is valid. Very often, these cases go to trial because someone other than the patient, or his or her health care agent, signed the agreement. It’s not usually clear that the third party who signed the agreement had any authority to represent the patient’s legal interests, and when the patient, or his or her estate, later sues the nursing home, a court has to decide the issue. That was the case in GGNSC Omaha Oak Grove LLC v. Payich, in which the son of Nada Payich sued Golden Living Center of Sorensen. Ivan Payich signed the arbitration agreement when his mother was admitted, but Nada Payich had not been declared incompetent to manage her own affairs. A district court declined to compel arbitration, and the Eighth Circuit agreed.

Nada Payich executed a power of attorney on behalf of her son, Ivan Payich, on Sept. 3, 2009. The next day, Nada Payich was admitted to the Golden Living Center of Sorenson. No doctor had declared her incompetent. Nonetheless, Ivan signed the admission agreement on the line for Nada’s legal representative, and also signed an arbitration agreement, adding “son” after his signature. Unfortunately, Nada Payich died after her admission to Sorenson. The appeals court’s opinion doesn’t go into the details of how Sorenson allegedly neglected or abused her, but Ivan Payich’s later lawsuit alleges negligent care by the home that led to physical and mental injuries. After removing the case to federal court, Sorenson moved to compel arbitration, arguing that Ivan signed on Nada’s behalf and was therefore bound by the arbitration agreement, or that Nada was a third-party beneficiary to the agreement between Ivan and Sorenson. The district court disagreed.

The Eighth U.S. Circuit Court of Appeal upheld that decision, finding no valid agreement applied to Ivan’s lawsuit. On appeal, Sorenson argued only that Nada was a third-party beneficiary to an arbitration agreement between Ivan and Sorenson. Because Nada accepted the benefits of the agreement–care by Sorenson–her estate should be bound by them, the nursing home argued. The Eighth disagreed, saying there was no contract between Sorenson and Ivan, as required to find that someone is a third-party beneficiary. The arbitration agreement expressly names Nada as the contracting party, the court noted. It only provides signature lines for the patient herself or for her legal representative if she is incompetent. Though Ivan’s choice to put “(son)” after his signature suggests that he intended to sign as Nada’s representative, Sorenson abandoned the argument that he was acting as her representative. Thus, the Eighth upheld the ruling declining to compel arbitration.

As a Philadelphia injury lawyer, I approve. Arbitration agreements are not necessarily fatal to a Pennsylvania nursing home abuse case, but they’re not usually helpful. Arbitration shields the proceedings from public view, which keeps the public from learning about the details of abuse or neglect allegations. To make matters worse, some arbitrators have been accused of essentially deciding cases the way the nursing home–the party that brings in their paying business–prefers. This stacks the deck against the plaintiff–the injured patient and his or her family–and prevents them from warning the public. As a Philadelphia medical malpractice lawyer, I believe everyone has a right to their day in a public and publicly accountable court.
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In an unusual situation, an eastern Pennsylvania nursing home patient is being charged with a homicide in the death of another patient. As a Pennsylvania nursing home lawyer, I was interested to see that Carl Smith was arraigned on charges of involuntary manslaughter for pushing Margaret Lechleitner, 85. Both were residents of the dementia ward at Weatherwood Nursing Home in Weatherly, a Carbon County community between Allentown and Scranton. Lechleitner died after she fell to the floor, hit her head and suffered a subdural hematoma, a kind of blood blister. The death was ruled a homicide by the Luzerne County coroner–but the ruling only means that it was caused by another person, not that it was a criminal act. According to WNEP, medical experts and a judge will decide whether the case should go to trial.

The incident leading to Lechleitner’s death took place April 20. Smith told authorities that Lechleitner pushed him first and he pushed back, though police say there’s no evidence that she pushed him. After Lechleitner hit her head, she was taken to the Hazleton General Hospital just over the county line, where she died the next day. Police said they had to balance competing interests in the case, because Smith has dementia as well. An officer said the police wanted to make sure justice was served for Lechleitner’s family, but also that everyone around Smith is safe and that Smith continues to get treatment. An Alzheimer’s Association of Pennsylvania spokeswoman told WNEP that she has never seen an arrest, or indeed any situation where one dementia patient caused the death of another.

Interestingly, no one in the articles commented on the oversight responsibilities of the nursing home. Of course, there may have been nothing that nursing home attendants could do, if the incident happened quickly. But if Smith and Lechleitner were left together without supervision, the home may be vulnerable to a Pennsylvania nursing home abuse lawsuit alleging that it was negligent. Dementia patients end up in nursing homes because they need the kind of 24-hour supervision that families often can’t provide. In fact, in nursing homes, they are known for having difficult behavior. Nursing home staffs are supposed to keep them out of trouble, but as a Philadelphia medical malpractice lawyer, I know understaffed, stretched-thin homes let things slide sometimes–and patients can die or suffer injuries as a result.
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The Administrative Office of Pennsylvania Courts (AOPC ) announced the establishment of the Elder Law Task Force formed by the Pennsylvania Supreme Court to investigate the increasing troubles regarding abuse, neglect, guardianship and the access senior citizens have to justice. Justice Debra Todd is chairing the task force, which will recommend possible legislation, amended laws, training and best practices. The task force has one year to finalize their study.

Supreme Court Chief Justice Ronald Castille said that Pennsylvania’s older population has significantly increased and as it grows, it is straining the ability of courts to provide services to protect elderly Pennsylvanians. He further stated that the requirements of the elderly will last for years, especially with regard to elder abuse, guardianships and their access to legal recourse. He said that it is time to guarantee that older Pennsylvania citizens will not suffer abuse or the loss of their savings.

Justice Todd has said that our society focuses on child abuse, but rarely addresses the abuse of the elderly. The force is hoping to put new laws into effect before the elderly population swells even more because with more elderly citizens comes more elderly abuse. Nowadays the number of people in the United States who are over 65 years old is greater numerically and proportionately than it has ever been, according to the U.S. Census Bureau. Pennsylvania is only exceeded by three other states in terms of elderly population density.

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A disturbing trend has surfaced recently, according to Dr. Joan Teno from Brown University. It seems that 20 percent of nursing home patients on Medicare who have advanced Alzheimer’s dementia were dispatched to hospitals and nursing homes during their last few months, which effectively ran up their bill to the taxpayers. Not only are their charges increased, their demise is prolonged via expensive intensive care and tube feeding.

When an elderly patient comes down with pneumonia, infections or problems swallowing, assisted living centers and nursing homes might believe hospital care is necessary. However, money may be the chief motivator for the transfer since Medicare pays 300 percent more than the standard rate per day to treat patients who have recently been hospitalized.

Teno said she wonders if the care is necessary and if the system is doing the best for the patient. She said, “A lot of this care just feels like in and out, in and out.” Teno was one of several researchers from Harvard and Dartmouth who co-authored a study that was published in the New England Journal of Medicine.

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Abuse in nursing homes is a hot button topic. When our elderly relatives and friends reach a point in their lives when they require assisted living or hospitalization, we expect them to have the best care available. However, nursing home residents are routinely mistreated by the people we entrust to take care of them. Frequently, patients will not mention abuse they may be suffering, so it’s important for you to know what constitutes nursing home abuse and how to identify it. Some reports say that for every case of nursing home abuse that’s reported, there are five cases that are not reported.

Nursing home abuse come sin three forms: neglect, emotional and physical. General, easy-to-spot signs of these types of abuse include:

• Unexplained injuries like bruises, cuts and sores.