Articles Posted in nursing home neglect

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As a Pennsylvania nursing home lawyer, I was interested to see a case in which a family was allowed to claim a nursing home was negligent, even though it was not allowed to sue for medical malpractice. In Southwell v. Summit View of Farragut, Robin Southwell sued Summit View for alleged negligence leading to the death of her mother, Claudia Adkins. The district court dismissed the case with prejudice, finding Southwell had not met the requirements of the Tennessee Medical Malpractice Act and had failed to state a claim under the Americans With Disabilities Act. But the Sixth U.S. Circuit Court of Appeals reversed on appeal, finding that while dismissal was correct on those counts, Southwell should be permitted to amend her complaint to include allegations of common-law negligence.

Adkins was deaf and blind and suffered from emphysema and cancer when she was transferred to Summit View from the University of Tennessee Medical Center on December 11, 2009. She died on October 6, 2010. The allegations about how Summit View contributed to Adkins’s death were not repeated in the opinion, but Southwell filed suit in Tennessee state court about a month and a half after the death, alleging medical malpractice, wrongful death, negligence and a disability-related claim construed as an ADA claim. Because Adkins had lived in Florida prior to her death and Summit View was a Tennessee company, Summit View successfully removed the case to federal court. Summit View’s motion to dismiss argued that Southwell failed to provide an expert’s affidavit, proper notice or Adkins’s birth date in support of the medical malpractice claim, and the district court agreed. It also dismissed the ADA count for failure to state a claim. Both dismissals were with prejudice; the district court closed the case.

Southwell’s appeal argued that while the district court may have been correct, it failed to consider her common-law claims. The Sixth Circuit agreed. After ruling that diversity jurisdiction was proper, it found that dismissal of the Tennessee medical malpractice claims was correct. (Southwell did not dispute this.) It also agreed that dismissal of the ADA-construed claim was correct; the ADA does not provide the monetary damages Southwell sought for failure to provide an interpreter. However, it found merit in Southwell’s argument that the district court should have addressed her negligence and wrongful death claims. Southwell alleged that Summit View failed to put Adkins in a proper room; failed to properly care for her emphysema and cancer; and failed to keep the supervising doctor informed about her condition. Southwell did not expressly plead these as failures of the non-medical personnel, the Sixth Circuit said, but she should be given a chance to amend her complaint to do so. Thus, it reversed dismissal and remanded to give her that chance.

This case has several aspects that interest me as a Philadelphia injury lawyer. The medical malpractice dismissal is very harsh; other courts have permitted medical malpractice plaintiffs to amend their filings to include previously forgotten documents. As a Philadelphia medical malpractice lawyer, I strongly suspect the Tennessee law requiring dismissal with prejudice was a politically motivated medical malpractice “reform” law. These “reform” laws are often designed to make it harder to sue medical providers, protecting their (and insurance companies’) profits but leaving injured people in the lurch. It’s also worth noting that Pennsylvania nursing home abuse is not always or even ordinarily medical malpractice. Nursing home employees are not all medical professionals, and many forms of physical abuse or neglect are nonmedical in nature.
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I was disappointed to see a recent report of Pennsylvania nursing home abuse so serious that it led to criminal charges. The Altoona Mirror, a community newspaper in western Pennsylvania, reported Sept. 26 that the former owner of Warner’s Home for the Aged and two ex-employees of the home were charged with neglect by a grand jury in the case of Kenneth McGuire. McGuire was 80 when he died from complications of serious neglect by the home’s employees. His hospitalization and death led to the revocation of the home’s license in December of 2011. Now facing charges of neglect of a care-dependent person are ex-owner Sherry Jo Warner, 64, and ex-employees Diana Frye, 62, and Marjory Koch, 44.

McGuire had lived in the home five years before he was admitted to the hospital on Nov. 5, 2011. A doctor’s visit in July of that year had turned up nothing worse than a small sore on his leg. However, McGuire’s condition deteriorated in the months after, requiring him to move from using a cane to walk to using a wheelchair. As a result, he needed more intense care, including regular turning to prevent pressure sores as well as basic care like bathing and feeding. After his hospital admission, it became clear that he had not received that care in some time. His toes and shins were covered in pressure sores, and one foot was gangrenous. He was also covered in dried urine and feces when he was admitted to the hospital, and he was dehydrated, malnourished and suffering from sepsis. His doctor and the staff at the medical center testified that he was in worse shape than any other nursing home patient they had seen.

As a Pennsylvania nursing home lawyer, I’m sorry to say that this story sounds familiar to me. Pressure sores (also known as bedsores and decubitus ulcers) are a very common condition in nursing homes because the homes deal with so many people who have limited mobility. They are simple to prevent–caregivers must turn the patient regularly–but this is time-consuming. As a Philadelphia injury lawyer, I know many of the for-profit nursing homes cut their staffs, or the quality of their staffs, in an attempt to save money, and keeping up with important duties like this gets more difficult as a result. I believe the safety of patients should be prioritized above profit for the home’s corporate parent, and I’m glad we have laws enforcing that even when the caregivers fail in this most basic duty.
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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.
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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.

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As a firm that’s very active in Pennsylvania nursing home abuse and neglect law, Rosenbaum & Associates pays close attention to the relevant machinations going on in Harrisburg.

As readers of this blog might remember, last fall, the Pennsylvania House passed a bill supported by associations like Pennsylvania Health Care Association/Center for Assisted Living Management. The bill aimed to limit punitive damages that liable nursing homes would have to pay in certain cases. Damages would be limited to double compensatory damages (at best), with an exception for situations in which intentional misconduct occurred.

The bill would also compel plaintiffs to file in the county in which the abuse/negligence happened — as opposed to in counties that have a reputation for being more favorable to plaintiffs.

The Nursing Home Associations’ push may have stalled out for now, but analysts believe that the effort could be kick started again in the fall.

Advocates of the legislation cite the fact that Pennsylvania’s malpractice insurers paid out nearly $320 million in 2011, according to National Practitioner Data Bank research. That would make Pennsylvania the second biggest medical malpractice payout state – ahead of New Jersey and Illinois, but significantly short of New York’s numbers (a $680 million payout!)

The Nursing Home Association has also complained that nursing facilities often operate on small margins; and these fragile businesses could lose everything in a single massive lawsuit. Advocates of the bill also point to massive, almost cartoon-like judgments in places like Florida, where two state facilities last year got hit with judgments of $200 million and $900 million, respectively.

What advocates of this Pennsylvania Nursing Home legislation are not paying attention to…

It’s true that abuse/neglect lawsuits and settlements can place a burden on facilities. But isn’t that burden a good thing? If you or someone you love got hurt in a PA nursing home due to a prescription medication foul-up, bedsore metastasizing into life threatening sepsis, or other horrific scenario, wouldn’t you want to be able to leverage a full suite of legal tools to get compensated and to take care of your loved one?

Is our current system always totally fair? No.

But it’s more unfair to victims of abuse or neglect than it is to owners of negligent facilities – by a long shot.

Perhaps if advocacy groups like the Pennsylvania Health Care Association/Center for Assisted Living Management spent more time identifying best practices for senior care — and punishing facilities for straying from a high standard — there would be less need for law firms and less need for the kind of legal actions that these groups rail against.

The horror stories that we’ve personally heard – and have helped to abate – along with compelling statistics at both the national and state levels suggest that the onus is on delinquent nursing facilities. These facilities need to do a better job of taking care of people: of fulfilling their fiduciary responsibilities not only to their patients but also to our communities.
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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.
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As a Pennsylvania nursing home abuse attorney, I was shocked and saddened to read about the tragedy of Rachel Holliday, an 84 year old patient at a Chapel Hill nursing home, who passed away after being horribly abused. She allegedly got sick after being doped with morphine by a nurse who apparently didn’t want to be bothered to care for her patients.

Nurse Angela Almore was sentenced last Monday to five months behind bars and two and a half years of probation as part of a plea deal she made with prosecutors. The allegations against Almore were all too familiar to anyone who has studied the nursing home abuse case literature. Nurse Almore had been on duty at Britthaven Nursing Home in Chapel Hill, North Carolina, on February 13 and February 14, 2010. On Valentine’s Day evening, Holliday started suffering respiratory distress; and she had to be rushed to UNC Hospitals for treatment.

Doctors at first couldn’t figure out what was wrong with her. They eventually realized that there were opiates in her system. This was confusing, since she had not been prescribed opiates.

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As a Pennsylvania nursing home lawyer, I’ve kept a close eye on the issue of overuse of antipsychotics in nursing home patients. These powerful drugs are intended for use in people with serious mental illnesses, but they became popular in the past decade for “off-label” use to control the symptoms of dementia. That popularity plummeted more recently, when medical studies began showing an elevated risk of death or serious health problems like strokes among elderly dementia patients taking the drugs. A recent investigative series of stories from the Boston Globe reports that 185,370 Medicare and Medicaid patients took antipsychotics for inappropriate reasons in 2010, down dramatically from 237,510 in 2005. However, the data from the federal Centers for Medicare and Medicaid Services also showed that those homes that do continue using the drugs inappropriately tend to be understaffed.

The newspaper compiled a database using the federal data, which allows families considering nursing homes to look up each home’s use of antipsychotics. The database excludes homes with fewer than 50 residents, but includes 15,600 homes of 50 or more, from across the United States. Of those homes, 21 percent were giving inappropriate antipsychotic medications to a quarter of their residents or more. Even more tellingly, the newspaper found “a clear link” between low staffing levels and high use of antipsychotics. Homes that most often used the antipsychotics off-label had fewer registered nurses, who direct medical care, and nurses’ aides, who provide much of the hands-on care. The newspaper suggested that this is because lower staffing levels make it hard to find the time necessary to control the negative behaviors of dementia without drugs. By contrast, antipsychotics frequently have a sedative effect, leading some to call them “chemical restraints” in an analogy to the physical restraints homes once used.

This is a form of Pennsylvania nursing home abuse, as any Philadelphia injury lawyer will explain. All nursing home patients deserve to have their basic dignity respected, and that means not drugging them into insensibility or physically restraining them just because it’s convenient for the staff. Nor should this be done for the sake of profit for the nursing home’s parent company, which can save money on staffing by drugging patients and charging the cost of the drugs to Medicare or Medicaid. (Indeed, the Globe found homes that overused antipsychotics tended to have more patients enrolled in Medicaid.) But perhaps the worst thing about the practice of using antipsychotics in elderly dementia patients is that the drugs’ known side effects include a risk of death. In fact, the risk is clear enough that the FDA has ordered its strongest warning on the drugs’ labels, telling patients and doctors about the increased risk of stroke and serious cardiovascular problems for elderly patients with dementia. As a Philadelphia medical malpractice lawyer, I strongly suggest that patients and families trying to make a well-educated decision about nursing home care take advantage of the Globe’s report to determine which homes near them are misusing these powerful drugs.
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Last year, I wrote here about a very large jury verdict in West Virginia, for the family of a woman who died of alleged neglect after just 15 days in a nursing home. So, as a Pennsylvania nursing home lawyer, I was interested to see a new development in that case. According to WOWK, the parent company of the nursing home Heartland of Charleston has succeeded in having its appeal considered by the West Virginia Supreme Court. The company’s appeal granted a request to suspend enforcement of the trial court’s judgment while it considers whether there were errors in the jury verdict form used in the case. The case gained local media attention because the Kanawha County jury awarded $91.5 million to the family of Dorothy Douglas, finding she died at least in part because of neglect during her short stay at Heartland of Charleston.

The family had placed Douglas in Heartland as a temporary measure while they waited for a spot in a dementia-specific home to open up. She suffered from Alzheimer’s with dementia, Parkinson’s disease and other conditions, but was able to walk and talk a little before moving to the home. The family contended in its lawsuit that staff at Heartland neglected her needs so badly that she lost 15 pounds and became unresponsive during her stay there. Staff allegedly also confined her to a wheelchair, saying she was at risk of falls. Douglas died not long after her transfer out of Heartland. Her family says the cause of death was severe dehydration and other neglect, though the home and its lawyers point to the death certificate saying the cause of death was dementia. Her family’s attorneys argued that with a turnover rate of 112 percent, Heartland didn’t have the staff to care for Douglas or others properly; and that indeed, its business model revolved around keeping costs low by keeping staffing ratios low. It had more than double the state’s average number of citations from February 2010 to April 2011.

According to the article, Heartland and its for-profit parent companies are asking the state high court to consider alleged mistakes in a jury verdict form. The article did not discuss what those mistakes were or how they would affect the jury’s determination of the verdict. An attorney for the Douglas family said the nursing home companies had opposed another jury verdict form near the end of the trial, and ended up working from the family’s proposed verdict form. That attorney also said the defendants had improperly used the jury verdict form to bring up certain legal issues for the first time. This is not permitted in appeals of lawsuits, he noted; trial courts must be given a chance to hear objections and the reasons for them so it can correct mistakes. The article also mentioned that the Douglas case has driven controversy over whether medical-malpractice damage caps should apply to nursing home cases, with this court splitting from another county circuit court on the issue.

As a Philadelphia medical malpractice lawyer, I’d welcome an investigation of that issue. As a rule, plaintiffs in Pennsylvania nursing home abuse lawsuits don’t have to file medical malpractice claims, though some do; nursing home abuse claims are generally for negligence. Some nursing home defendants are not medical professionals and cannot be sued for medical malpractice in any case. Indeed, this is sometimes a problem with the care at a bad home — inadequate training or experience for the jobs staff members must do. I also look forward, as a Philadelphia injury lawyer, to hearing about the outcome of this jury verdict form appeal. If the family’s attorney is correct, much of the appeal will be simply disregarded by the West Virginia Supreme Court, making all of this much ado about not much.
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Punitive damages are an ongoing issue for Pennsylvania nursing home lawyers like me. Political movements for “tort reform” often ban or cap punitive damages, believing they are “free money,” but nothing could be further from the truth. Juries and judges may only award punitive damages when the injury was caused by egregious intentional acts or knowing disregard for the victim’s safety. They are designed for the rare cases when courts wish to deter the defendant from repeating the egregiously unsafe behavior. And of course, they’re not common. However, because they’re a political issue, courts may set a higher bar for considering them. That was what happened in Estate of Henry Gibson v. Magnolia Healthcare, Inc., a Mississippi Supreme Court decision. The estate challenged the court’s decision not to allow consideration of punitives, as well as the constitutionality of the state’s noneconomic damages cap.

Henry Gibson was 71 when he suffered a stroke and seizures that left him bedbound and incontinent, with trouble communicating and serious underlying health conditions like diabetes and high blood pressure. His family sought care at Arnold Avenue Nursing Home in Greenville, Miss. Gibson was overweight when admitted, so his family may not have seen a red flag when he lost 40 pounds during his year and a half at AA, while he was using a feeding tube. However, he was hospitalized on December 31, 2002 for difficulty breathing, and hospital staff discovered a collection of fluid and blood around his lung as well as a broken arm. Both were attributed to a fall, an unusual circumstance for a bedbound patient. Gibson’s family transferred him to another home, but he died on Jan 26, 2003, of sepsis contributed to by the broken arm and a hematoma of the lung.

The estate sued, arguing that AA was negligent for leaving Gibson’s bedrails down, allowing the fall; allowing two bedsores to develop by failing to turn him, then failing to prevent them from getting worse; failing to ensure he got the recommended feeding tube, causing malnutrition and dehydration; and failing to perform range-of-motion exercises to prevent him from losing use of muscles. They offered evidence that AA was short-staffed and had left bedrails down in the past, as well as failed to document Gibson’s care. Despite arguments from the nursing home that there was no proof of a fall, the jury found for the estate and awarded $1.5 million, which the judge reduced to $575,000 due to a state cap on noneconomic damages. The estate also moved to allow the jury to consider noneconomic damages, but the judge denied this, finding evidence did not support a finding that AA’s conduct was not “sufficiently egregious or offensive.”

The estate appealed both the punitive damages decision and the state damages cap, arguing that it was unconstitutional. The Mississippi Supreme Court ultimately disagreed on both counts. The argument about the constitutionality of the statutory damages cap was rejected quickly, because the high court found that the estate had never raised the issue in trial court. Thus, it said, the issue was waived for consideration on appeal. But it did examine whether punitive damages should have been considered. Punitive damages are awarded in Mississippi when the defendant behaved with malice, actual fraud or gross negligence showing willful or reckless disregard for others’ safety. The high court said the evidence presented by the estate, which relied on the same evidence used for compensatory damages, was insufficient to show this. Thus, it upheld the trial court’s decision.

As a Philadelphia medical malpractice lawyer, I suspect the outcomes of both appeals might have been different in another state. In fact, some state high courts, including Arkansas and Georgia, have already ruled that punitive damages caps are unconstitutional (according to their own state constitutions). Because the Mississippi Supreme Court found the issue was waived, it didn’t truly address this issue and may well revisit it in the future. As for allowing the jury to consider punitive damages, I wish the court had gone into detail on its reasoning. The kind of underfunding alleged by the estate, along with the history of leaving bed rails down, could well form the basis of a finding of reckless disregard for safety. As a Philadelphia injury lawyer, I ask for punitive damages whenever I feel state law and the circumstances warrant.
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