Articles Posted in financial exploitation in nursing homes

Published on:

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

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

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

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

Published on:

As a Philadelphia injury lawyer, I focus my nursing home abuse practice on fighting abuse of vulnerable elderly and disabled people in nursing homes. But according to a July 22 article from Bloomberg News, nursing homes aren’t the only places where able-bodied people neglect and take advantage of the sick — hospice care companies have come under fire. The article outlines allegations that some hospice companies, especially for-profit hospice companies, routinely neglect the medical needs of their patients. It also reports allegations that for-profit hospice companies have pushed hard to admit people who are not terminally ill or who are expected to live a long time, and keep them from being discharged while still alive, so they can maximize their payment. In many cases, these companies are being paid from Medicare and Medicaid, just like nursing homes.

One such company is Vitas Healthcare, a subsidiary of Chemed Corp. Robert Rogers of California is suing Vitas over the death of his mother, Thelma Covington, from sepsis brought on by gangrene in her toe. Medical records show that a Vitas doctor requested cleaning and ointment for the wound on Covington’s toe in early July of 2008, but this was never carried out. In late July, the treatment was discontinued without having started. When she complained of intense pain, nurses gave her morphine and a sedative. A month later, nurses noted signs of gangrene, yet noted “interventions effective.” A few days later, a nurse found the maggots and wrapped the toe in plastic. When Rogers visited and found his mother in severe pain, wheezing and passing out, he asked Vitas employees to admit her to the hospital, only to be told that “our job is not to prepare them to live.” He called 911 and an emergency room doctor eventually removed 11 maggots from an open wound on Covington’s toe. Covington died in the hospital two days later.

This lengthy article contains several other stories of alleged patient neglect at for-profit hospice companies. As a Pennsylvania nursing home lawyer, I wouldn’t hesitate to sue over many of these allegations of neglect and elder abuse. The article describes companies whose motive is very clearly profit rather than patient care, with dubious medical diagnoses used to admit some patients and allegations that they were routinely understaffed to save money. Understaffing is a major cause of Pennsylvania nursing home abuse, because employees stretched too thin simply can’t give all the patients the attention they need. As a Philadelphia medical malpractice lawyer, I hope lawmakers take note of this and take steps to ensure that laws against abuse and neglect apply to hospice care just as well as nursing homes.
Continue reading →

Published on:

Last week, I wrote as a Pennsylvania nursing home lawyer about arbitration agreements in nursing homes. This is a hot topic right now, as more and more private homes require patients or their families to sign arbitration agreements as part of their admissions to the home. That was true in the several consolidated cases before the West Virginia Supreme Court in Brown v. Genesis Healthcare Corp. et al, decided June 29. In all three of the cases at hand, patients; family members signed arbitration agreements with nursing homes, and later sought to sue the homes for substandard care after the patients died. Prior to death, all three were admitted to hospitals with conditions including infection, dehydration, pneumonia, malnutrition and untreated pressure sores.

In each case, the nursing homes asked the courts to dismiss their claims and compel arbitration under the contracts. In two of the cases, the plaintiffs appealed from a dismissal; in the third, the trial court asked the Supreme Court to decide whether the Federal Arbitration Act preempted the West Virginia Nursing Home Act. The Supreme Court started by noting that families are generally under a lot of pressure and unable to shop around when choosing a nursing home. The Nursing Home Act prohibits patients and their representatives from waiving their rights to the courts. However, the Supreme Court said, the FAA preempts the state Act because the state Act does not provide “grounds for the revocation of any contract”; it applies specifically to nursing home arbitration contracts.

The court next looked at the plaintiffs’ contention that the arbitration clauses should be voided as unconscionable. Here, they had more success. The Supreme Court found the clauses unenforceable because they were contrary to public policy; unconscionable in their presentation to the patients; and unconscionable in their content. The trial courts that found otherwise gave no reasoning for their decisions, the court said, and failed to consider plaintiffs’ arguments. Finally, the court held that it did not believe Congress intended the FAA to apply to pre-injury arbitration contracts, and directed trial courts to find the arbitration clause unenforceable.

As a Philadelphia injury lawyer, I am pleased to see this issue being addressed by more and more state high courts. West Virginia rulings do not apply in Pennsylvania, of course, but this ruling touches on federal preemption, which is an issue affecting every U.S. state. Thus, this decision and others like it from other states can provide a guide for our courts when they consider mandatory nursing home arbitration contracts. As the court wrote, nursing home contracts are often signed under stress, and lock patients in to legalities they may not fully understand. By squeezing nursing home patients and their families for this kind of concession, the homes put themselves in a position to allow all kinds of Pennsylvania nursing home abuse without accountability — and that’s bad for society’s most vulnerable people.
Continue reading →

Published on:

As a Pennsylvania nursing home lawyer, I was interested to see a trial court decision in Kentucky that could be bad news for nursing home residents in that state. In Abell v. Bardstown Medical Investors, Inc., Christine Abell sued a nursing home where she had been a resident, Life Care Center of Bardstown, for gross negligence, intentional and wanton conduct and disregard for her safety, stemming from alleged denial of care and mistreatment. The home moved to dismiss the case because Abell had signed an arbitration agreement on admission. Abell opposed that motion, saying the contract was not enforceable because she had been mentally incapacitated when signing it. She also argued that the contract was unconscionable and therefore unenforceable.

After a bad fall, Abell, 74, went to the hospital with a vertebral fracture. At that time, she lived in an “independent living facility.” After three weeks in the hospital, she was discharged to the nursing home. When she was admitted, a nursing home employee noted that Abell suffered from a major mental disorder and requested a mental health screening. There was no indication that Abell was generally of below-average intelligence or impaired in another way. The screening found that Abell had not previously been treated for a mental health problem and suggested that any problem she displayed could be related to an infection. Directly after the screening, she was given a total of 37 intake papers to sign, including the arbitration agreement.

Abell argued that the arbitration contract should not be enforced because she was physically and mentally compromised when she arrived at the home; and because it was just one of many contracts in a large stack of paperwork. The court rejected this idea. The arbitration contract was not procedurally unconscionable, it said, because it was not intentionally unclear about its meaning and consequences. The court also dismissed Abell’s argument that she didn’t have the mental capacity to sign contracts when she was admitted. Under Kentucky law, sickness and distress are not adequate to create mental incapacity; Abell had to show that she did not and could not understand what she was signing. The record doesn’t show any diagnosis of mental illness or impairment, the court wrote. Furthermore, there was no such diagnosis after she was admitted, and the screening said she did not have a serious problem. Thus, the court dismissed the case and granted the motion to compel arbitration.

As a Philadelphia injury lawyer, I would be interested to know what Abell’s major mental disorder was, if it was not any kind of impairment. Arbitration agreements are an ongoing issue in nursing homes, in part for reasons similar to the ones raised in this case. Older people who are candidates for nursing homes are often sick or suffering from mental problems, which makes large stacks of paperwork like the one presented to Abell legally troublesome. Furthermore, an arbitration agreement makes it more expensive and difficult to hold homes responsible for Pennsylvania nursing home abuse, and less likely that the case will get media attention and warn others away from bad homes. As a Philadelphia medical malpractice lawyer, I urge clients to carefully consider everything they sign before entering a home and ask as many questions as they like — because the patient is, after all, the client.
Continue reading →

Published on:

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.
Continue reading →

Published on:

As a Pennsylvania nursing home negligence attorney, I write here a lot about the physical abuse and medical neglect of nursing home patients. But in addition to these threats, nursing home patients and their families are also vulnerable to financial exploitation, particularly when the caregivers have a history of past crimes. Unfortunately, a recent lawsuit settlement in California brought to light the fact that even when state laws require criminal background checks, shoddy work can still allow them to take advantage of the elderly in nursing homes and home care settings.

In the California case, a 92-year-old woman was the victim of financial abuse by her home care provider. Wessa Tanubo pleaded guilty in 2009 to felony financial abuse, after stealing at least $30,000 from Rose Michael by using Michael’s credit cards and signing checks to herself. After Michael’s family began to suspect that Tanubo was stealing from Michael, they found out that Tanubo had been convicted on drug charges in 1994, and was in and out of prison from 2000 to 2004 on various parole violations. In 2008, San Mateo Superior Court issued a restraining order forbidding Tanubo to have contact with her own child.

All of this should have turned up in a criminal background check performed by Home Care Assistance, the company that placed Tanubo in Michael’s home, but HCA didn’t discover it. HCA claimed to do national and local criminal background checks, but claims it turned up nothing unusual about Tanubo. To make matters worse, the state of California does not mandate criminal background checks for any caregivers. A 2008 law gave counties the authority to conduct checks in the case of low-income people receiving public assistance, but not a requirement. Because the Michael family was able to pay for Rose Michael’s care out of pocket, the law didn’t apply to their caregiver. And according to the article, the law is frequently ignored even when it does apply.

Pennsylvania law does require that criminal background checks be performed on all employees and administrators of nursing homes. Prospective employees whose background checks reveal what are known as “prohibitive offenses” can’t work in nursing homes. These crimes range from murder to library theft. As a Philadelphia medical malpractice lawyer, I know nursing home patients are at the mercy of the nursing home staff. Criminal background checks are meant to help them and their families feel safe, but they can’t guarantee that all staff members will always provide adequate care. That’s why it’s important for nursing home patients and families to know their rights and keep an eye on staff members they suspect of wrongdoing.
Continue reading →

Published on:

According to a recent Washington Post article, the U.S. Department of Health and Human Services is investigating rampant fraud and abuse in Medicare billing for “high-end services” at nursing homes. The Justice Department said nursing homes have been categorizing patients inappropriately in billing forms in order to receive higher payments from Medicare for “services not rendered, and … worthless services.” This article caught my eye because it’s yet another example of the wrongdoing that nursing homes and their staffs can get up to right in front of patients who are unable to clearly object or tell an outsider. As a Pennsylvania nursing home abuse attorney, I wonder whether nursing homes that try to make higher profits by overbilling Medicare are also more likely to try to generate profits by overmedicating or financially abusing patients.

The article alleges that nursing homes have been categorizing many more of their patients in “ultra-high” Medicare billing categories than can be justified by those patients’ medical records. Medicare has annually paid out up to $542 million more than it should have for services for these patients. The recently enacted health care reform legislation changed the rules to combat this problem, which is considered part of the “waste, fraud and abuse” that both parties oppose. Certain nursing home chains have been singled out as especially egregious offenders, including HCR ManorCare, which operates in cities throughout Pennsylvania.

The article does not specify the kinds of unperformed services for which nursing homes charged Medicare. But with the recent settlements for pharmaceutical company kickbacks to nursing homes for overmedicating patients for profit, as a Philadelphia nursing home negligence lawyer, it seems fair to wonder whether a nursing home that cheats in one way isn’t dishonest in other ways too. I am glad that the Department of Health and Human Services is thoroughly investigating these patterns of fraud and putting nursing homes on notice that increasing profits through fraudulent claims is unacceptable. Hopefully, the increased scrutiny will encourage nursing homes to be more conscientious in all aspects of their work. It is important as As a Philadelphia injury lawyer to stay vigilant with regard to these nursing home practices.
Continue reading →

Published on:

A former nursing home business office manager in California has been charged with kidnapping an 85-year-old Alzheimer’s disease patient from her Berkeley nursing home. According to the San Francisco Gate, Concepcion “Connie” Pinco Giron, 51, stole more than $50,000 from six elderly patients of the Elmwood Nursing and Rehabilitation Center, including the one she kidnapped. California state Attorney General Jerry Brown said, “This is a shocking case of nursing-home abuse and a gross violation of trust.” As a Pennsylvania nursing home abuse lawyer, I urge nursing home patients and their families to watch their finances as carefully as they can.

Giron’s schemes involved opening bank accounts at Citibank in the patients’ names, according to the Department of Justice. Then she transferred their money into her own account, wrote herself checks from their accounts, and used their ATM cards. She also allegedly stole money from their trust accounts at the nursing home. Giron also told one patient’s son that he had to pay an extra $600 per month for his mother’s care, and then kept the money for herself, over the course of 18 months. And in August 2008, Giron claimed that one of the patients would be transferring to another facility, but in fact kidnapped the patient and moved her into Giron’s own home. Then Giron cashed the patient’s pension and Social Security checks.

In August 2009, the state attorney general’s Bureau of Medi-Cal Fraud and Elder Abuse began investigating Giron in response to a complaint about her. That month, investigators found the kidnapping victim, 85-year-old Carnell Williams, in Giron’s home, physically unharmed. Giron has been charged in Alameda County with kidnapping to commit another crime, false imprisonment, elder abuse and six counts of theft from elder or dependent adults by a caretaker. She is being held at the Santa Rita Jail in Dublin in lieu of $365,000 bail.

A dependent, elderly nursing home resident should not have to fear that his or her lifetime’s worth of savings will be stolen by his or her caretakers, and thankfully many nursing home employees are honest. Nevertheless, financial exploitation of the elderly is all too common. Patients and their families should track their bank accounts and be alert to any unusual activity.
Continue reading →

Published on:

When residents enter nursing homes, they are almost always asked to sign contracts. These contracts specify all of the obligations the home has to the resident and his or her family, as well as the family’s obligation to the home. Our Philadelphia nursing home negligence attorneys recommend reading any contract carefully, of course. But in particular, we advise families to watch nursing home contracts carefully for a provision requiring something called binding arbitration. Binding arbitration removes families’ ability to sue in the event of any abuse, neglect or other wrongdoing at the home.

Binding arbitration is essentially private judging. Rather than going to a courthouse and explaining your case to a jury and judge, you and the nursing home would hire a private arbitrator (sometimes a retired judge) to hear the case and make a decision. Companies say it’s faster than going to court, and sometimes cheaper. However, binding arbitration has come under criticism in the past few years after statistics showed that arbitrators decide in favor of the companies in an unusually high proportion of cases. Overwhelmingly, the companies are also the ones that pay the arbitrators’ bills. The resulting public outcry has led to two bills in Congress to ban the practice — including one that applies specifically to nursing homes.

In nursing homes, there are two major problems with binding arbitration. At worst, families’ cases are decided by someone who was bought and paid for by the nursing home company. Because their contracts specify that the arbitrator’s decision is final, families can rarely appeal to a state court. This denies justice in that one case. However, there’s also a larger problem of “moral hazard.” Binding arbitration with a friendly arbitrator allows nursing home companies to escape accountability for their actions. In essence, that means nursing homes have no incentive to cover up unsafe and illegal conditions — placing more residents at risk.

Consumers often don’t realize binding arbitration is buried in contracts until after they sign. Some states have thrown these contracts out of court, but Pennsylvania is not currently one of them. That means Pennsylvania families should look for binding arbitration clauses anytime they’re ready to place a loved one in a nursing home. If they find one and prefer not to agree to it, they can and should ask the nursing home to change or remove it. Families who have already signed a binding arbitration contract should not give up, however. You can and should have a Philadelphia nursing home abuse attorney represent you in arbitration hearings, as well as in any court case necessary to fight the arbitration clause.
Continue reading →

Published on:

Nursing home abuse makes headlines, and it’s a serious problem that homes and residents’ families should be watching for. But as Philadelphia nursing home neglect attorneys, we find that theft and financial exploitation may be even more common in nursing homes. Theft in nursing homes can be straightforward — an employee, another resident or a visitor may simply take money and valuables out of the patient’s room, or sometimes even from his or her person. It can also be subtle and sneaky, with the thief using threats, intimidation, medication, medical conditions or deception to get valuables.

In some ways, nursing home residents make good targets for theft. Older people tend to have more savings and if they own a home, it’s probably paid off. People in nursing homes are also there because they have problems living independently, making them dependent on others. Unscrupulous people can take advantage of incapacitating health conditions to steal things outright, and depend on the resident’s inability to communicate clearly to keep them out of trouble. In other cases, thieves may coerce, threaten or deceive patients into giving things away or signing away rights to valuable property. Sometimes, the victim even knows about it, but believes the financial move benefited him or her, or that it’s a reasonably sized gift.

To catch financial exploitation in nursing homes, residents’ families should keep an eye on the resident’s finances and valuables. Watch bank accounts for unexpected activity, and be sure you have the right to ask questions if necessary. During visits, make sure your loved one has all of the money and items he or she used to have, particularly items that wouldn’t be casually lost or given away, like heirloom jewelry and wedding rings. And if you suspect particular people, watch those people to see they’re spending more than you believe they could make at their jobs. If you catch a thief in time, you may be able to get the money back, through a criminal prosecution or a Pennsylvania nursing home negligence lawsuit.
Continue reading →

Contact Information