Articles Posted in nursing home neglect

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I’ve written here many times as a Pennsylvania nursing home lawyer about the dangers of overusing antipsychotic drugs in nursing homes. Sometimes called “chemical restraints” because the practice effectively prevents patients from being physically or mentally active, antipsychotics were once commonly used off-label in dementia patients. Their use has been curbed somewhat since 2005, when the FDA issued its strongest possible warning that studies have associated atypical antipsychotic use in the elderly with increased risk of death; the agency extended that warning in 2008 to all types of antipsychotics. Nonetheless, a federal report last year found the drugs are still used more widely in nursing homes than they should be, with numerous Medicare recipients getting the drugs for no medically accepted reason or in a way that violates federal standards.

Now, the Centers for Medicare and Medicaid Services has announced a campaign to stop unnecessary use of antipsychotics. According to McKnight’s Long-Term Care News, CMS will promote alternatives to medication to control behaviors among dementia patients that are violent or otherwise difficult for caregivers to handle. These can include intervening in patients’ behavior, better communication with patients when possible, and treating any problem that might be the real cause of an outburst, such as undiagnosed pain. Nursing home industry observers also called for homes to recheck whether there was ever a valid indication for the medication, and whether it’s still valid today. McKnight’s reported that this issue has been front and center partly because of interest from Sen. Chuck Grassley, R-IA, who may have driven the CMS initiative. That initiative will kick off March 29 with educational programs as well as increased regulatory oversight.

As a Philadelphia medical malpractice lawyer, I applaud Grassley and the no doubt many others who have been working to keep this issue front and center. Because of their illness, nursing home patients with dementia can rarely speak for themselves, so it’s vital that we speak for them. That’s particularly true for patients who are receiving antipsychotics unnecessarily, because a side effect of those drugs is sedation. (Indeed, it’s possible that sedation is the goal of homes that overuse the drugs.) Like other powerful prescription drugs, however, antipsychotics carry even more serious side effects, including large weight gain, diabetes, sudden cardiac death, stroke and more. That’s why knowingly misusing the drugs in elderly people, just to avoid taking the expensive staff time necessary to intervene in their behavior, is a form of Pennsylvania nursing home abuse.
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As a Pennsylvania nursing home lawyer, I was interested to see a nursing home negligence case that was sent back for a new trial that included evidence not previously presented. In Bedell v. Williams, the Arkansas Supreme Court also removed one defendant from the case, finding that the leader of the nursing home’s governing body could not be sued in his personal capacity. The victim was Minnie Lee Valentine, who died after two extended stays at Little Rock Healthcare, a nursing home, and trips in and out of other care facilities. Valentine had suffered a severe stroke before entering the home and had a slight pressure sore when she arrived, but that sore worsened as time went on. Before her death, Valentine suffered amputations related to other pressure sores as well.

Valentine suffered a stroke in May of 2004. When she was released from the hospital and into the care of LRHC, she depended on nursing care and had a feeding tube, a pressure sore on her tailbone and a urinary tract infection. She was treated at LRHC, but the pressure sore did not heal and she also began showing signs of malnutrition and dehydration. In June, she was admitted to another hospital for pneumonia, where her pressure sore continued to worsen. After release to LRHC, nurses found signs of infection in the pressure sore, which ultimately led to another hospitalization. After this hospitalization, she was released to a different nursing home, where the pressure sore worsened and new sores developed on her feet and ankles, requiring multiple amputations. She died in February of 2005.

Brenda Williams, the personal representative of Valentine’s estate, filed suit against multiple defendants, all of whom were dismissed except LRHC; the president of its corporate owner, Donald Bedell; and Heartland Personnel Leasing, Inc. Those companies were tried on claims of negligence, medical malpractice and violations of the Arkansas Residents’ Rights Act, and the jury ultimately awarded $5.1 million to Valentine’s estate from LRHC; $350,000 from Heartland; and $5 million from Bedell. All three defendants appealed the outcome, the damages and certain rulings leading up to the outcome.

The Arkansas Supreme Court started by agreeing with Bedell on his claims that he cannot be found negligent because he owed no personal duty to Valentine. The parties agree that Bedell was not personally involved in Valentine’s care, the court said, but the trial court nonetheless found a duty stemming from federal law and a parallel internal policy at LRHC. This was incorrect because the federal policy governs Medicare and Medicaid eligibility, the high court said; the LRHC policy was created merely to comply. Thus, Bedell was an inappropriate defendant and the Supreme Court dismissed him. It next turned to arguments that the trial court should have allowed evidence about Valentine’s health after her discharge from LRHC. Because the defense argued that Valentine’s health was inevitably declining, it should have been permitted to introduce evidence about how she fared after discharge. Failure to include this information was prejudicial, the high court said, and that warrants a new trial altogether. Thus, it dismissed Bedell and remanded for a new trial of LRHC and Heartland. It then addressed other contentions for the purposes of retrial.

As a Philadelphia medical malpractice lawyer, I’m disappointed that this victim’s estate and loved ones will have to retry the same case again. This is not just a delay for them, though these delays can be hard on suffering families; it is also an additional expense. Worse, it will not necessarily lead to the same result for them. This case may have been especially vigorously litigated because the verdict was very high, but — as many nursing home companies know — verdicts are often very high in cases of Pennsylvania nursing home abuse. Understandably, juries are not impressed by nursing homes that permit, ignore or even encourage abusive conduct and severe neglect of their patients. Patients like Valentine, who was dependent on full-time nursing, are at especially great risk from uncaring or lazy caregivers. As a Philadelphia injury lawyer, I am proud to help families fight this kind of negligence when it happens in the name of profit.
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As a Pennsylvania nursing home lawyer, I was interested to see a record-setting verdict in a Florida case involving serious neglect of a 92-year-old woman. According to the Tampa Bay Times, a jury in Tampa Bay has awarded $200 million to Richard Nunziata, the adult son of Elvira Nunziata, who died in 2004 when she fell down a staircase while strapped into a wheelchair. Nunziata was in the early stages of dementia and prone to wandering; the nursing home was supposed to have alarms on the door, her clothing and the wheelchair. But the employees at the home reportedly disabled the alarm so they could take frequent smoking breaks, according to the newspaper. Unusually, the nursing home company did not defend itself, in part because its several related business entities had gone out of business.

Nunziata was a resident at Pinellas Park Care and Rehab Center in St. Petersburg. One afternoon, she disappeared from a group of residents, and an hour passed before staff members noticed. When they checked the emergency exit door, they found her at the bottom of a staircase, her bloody body still strapped to the wheelchair. She died just after paramedics arrived. The Pinellas Park nursing home had a history of deficiency citations and abuse complaints, according to the newspaper. At trial, former employees testified that the home was frequently understaffed and that the door alarm was routinely disabled by smokers. They also told the jury that Nunziata had fallen before and was known to wander. The jury award for $60 million in compensatory damages and $140 million in punitive damages is believed among the largest in the state of Florida.

The for-profit nursing home’s management company, Trans Health Management Inc., did not defend itself in court; its parent company is in a receivership in Maryland. An attorney representing Trans Health filed unsuccessfully to stop the trial three days before it was scheduled to begin. However, the Tampa Bay Times noted Feb. 5 that collecting on the judgment may be difficult. That’s because the assets and liabilities of the nursing home have been separated into a set of companies — many using the same phone number and office building as Trans Health — whose legal relationships will have to be sorted out in court. In fact, the company that inherited the liabilities has disappeared without filing tax returns, the newspaper said. The nursing home abuse attorneys for Nunziata’s estate said these companies existed only to strip away assets and protect the defendants from liability, and the real owners are a series of private investors.

This kind of corporate shell game is not unknown to Philadelphia injury lawyers like me. For-profit nursing homes are increasingly using corporate law to shield themselves from the consequences of their own negligence. To collect on a Pennsylvania nursing home abuse verdict, plaintiffs frequently must do some detective work — the Nunzata case involved testimony from a forensic accountant — and pursue entities that may be far away from the home in question. As the newspaper noted, even the federal General Accounting Office could not determine which of the corporate entities attached to the six biggest nursing home chains were in charge of what. As a Philadelphia medical malpractice lawyer, I oppose this because it prevents injured families like Nunziata’s from collecting on debts they are legally owed — debts ordered by a court after a fair trial.
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As a Pennsylvania nursing home lawyer, I was very interested in a bill that recently became law in Harrisburg. The Long-Term Care Nursing Facility Independent Informal Dispute Resolution Act will establish a new process for Pennsylvania nursing homes facing regulatory penalties after state regulators’ inspections or responses to complaints. A press release from State Rep. Mauree Gingrich of Lebanon said the process will give long-term care facilities the option of using the current regulatory process through the state Department of Health, or choosing an outside reviewer at their own expense. The bill was hailed by state legislators including Gingrich for its potential to save money for nursing homes. It was passed in the state House Dec. 16 and signed Dec. 22, with an effective date of April 1, 2012.

Under the act, nursing homes now have the option of bypassing the current review process when they are found out of compliance with a state safety regulation. They may still use that process, but they may also hire a private Quality Improvement Organization at their own expense. Legislators said this would permit nursing homes with compliance problems to dispute inspectors’ findings before those findings are entered into federal systems that collect nursing home quality data. This, in turn, would permit homes to avoid litigation and thus save money. Proponents emphasized that the new system would still ensure quality of care for nursing home residents. Opponents of the bill, including organizations that advocate for the elderly, asked legislators to add provisions allowing patients and their families to have a voice during this process.

Cutting off patient access to the review process is concerning — but as a Philadelphia injury lawyer, I am concerned about other aspects of this bill as well. Allowing nursing homes with safety problems to choose an outside inspector creates an opportunity for nursing homes to essentially buy the regulation they prefer, by choosing QIOs that are willing to provide whatever answer the nursing homes like. It will slow down the process of fixing any underlying problems, because it permits homes to delay their response while they go through the QIO process. The references to keeping homes’ violations out of federal records are also disturbing. Using correct and current federal records is a great way for patients to avoid homes with a record of Pennsylvania nursing home abuse, so it’s better to include every violation on record. As a Philadelphia medical malpractice lawyer, I hope patient advocates are following this law closely.
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As a Pennsylvania nursing home lawyer, I was saddened but not surprised to read a new report detailing how many cases of elder abuse and Pennsylvania nursing home abuse often fall through the cracks. The investigative journalism organization ProPublica published a report Dec. 21 on the rarity of investigations into suspicious deaths of elderly Americans. According to the article, part of the problem is that older people’s deaths are not unusual, and therefore not given the scrutiny that would be given to a younger person’s death. Coroners may assume that older people died of natural causes without looking into it, especially with nursing home patients. However, the investigators found that coroners are under-funded and rely too heavily on doctors’ reports on death certificates. In many states, doctors may sign death certificates without viewing the body, allowing nursing homes to cover up the true reason for a death even when a casual glance at the body reveals it.

That was the case in the death of William Neff, who died at 83 while he was in an assisted living home in Bucks County, Pennsylvania. When he died, the home told its doctor that “failure to thrive” due to dementia was the cause, and that’s what the doctor put on the death certificate. But when Neff’s relatives moved his body to a funeral home, the director preparing Neff’s body for burial noticed broken ribs and a 16-inch bruise on one side. Rather than continuing preparations, the director contacted the Bucks County coroner’s office, which determined that Neff died of a lung puncture caused by one of five broken ribs, caused by some kind of violent impact. A criminal investigation of the home eventually revealed that Neff was beaten to death by home employee Heidi Tenzer, who was later convicted of third-degree murder. Three other employees were convicted of related crimes. In other cases profiled in the article, homes used natural causes to cover up the effects of neglect, including deep, severe bedsores; misuse of antipsychotic drugs; dehydration; infections; and disease.

As a Philadelphia medical malpractice lawyer, I know any of those conditions would raise serious questions about the nursing home’s quality of care and safety. Pressure sores in particular (also known as bedsores) are a serious issue because they require frequent attention and go unattended far more often than they should. The abuse described at the Bucks County nursing home is even more troubling because there’s no way that Neff’s abuse could be attributed to mistakes or overwork; he was literally beaten to death. To make matters worse, the article reports that Neff had speech problems because of his Alzheimer’s, meaning he likely couldn’t speak up about any previous abuse. The case resulted in several criminal prosecutions. As a Philadelphia injury lawyer, I hope it also sparked a state investigation into the quality of that home’s care, in order to protect other vulnerable residents — and close scrutiny by the families of other residents.
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As a Pennsylvania nursing home lawyer, I was interested to see a nursing home decision from next door in Delaware. In Dishmon et al. v. Fucci et al., Michael Dishmon and others sued a nursing home for alleged malpractice leading to the death of his father. Dishmon filed an affidavit of merit, as required by Delaware law, as to the validity of his claims. However, the filing did not include a copy of the expert’s C.V. (professional resume), and the trial court dismissed the case on that basis. The Delaware Supreme Court reversed it, finding that the lack of a C.V. was a procedural error only and that the trial court should have used its discretion to allow the C.V. to be filed at a later date.

James Dishmon entered the Hockessin Hills nursing home in late December of 2004 with a variety of medical problems, including heart problems. Four days later, he died of acute coronary ischemia and coronary artery disease. His son, Michael Dishmon, alleges that contrary to his express instructions, Dr. Pasquale Fucci and his physician’s assistant, Bernie Schneider, put a “do not resuscitate” order on his father. Thus, the Hockessin Hills staff made no effort to revive the elder Dishmon when he fell ill. Michael Dishmon sued in December of 2006 and timely filed an affidavit of merit written by Dr. Herbert Muncie, which defendants moved to review in camera. That review led the judge to dismiss the case for three reasons: It did not contain a copy of Muncie’s C.V.; it didn’t demonstrate familiarity with the standard of care for a physician’s assistant; and it didn’t go into enough detail on Muncie’s opinion. Dishmon moved for relief from the judgment within two weeks, attaching the missing C.V., but the trial court denied it without comment four months later.

Dishmon appealed, challenging all three grounds for dismissal. The Delaware Supreme Court started with the issues of Muncie’s detail and familiarity with the physician’s assistant standards. Though Delaware’s affidavit of merit statute is designed to prevent frivolous lawsuits, the court said, its requirements are “purposefully minimal.” Thus, it found that Muncie’s affidavit was legally sufficient because it met the requirements of Delaware state law: “The General Assembly did not intend a minitrial at this stage of the litigation.” Thus, the defendants were wrong to argue that Muncie needed to demonstrate special familiarity or evidentiary support to file a legitimate affidavit. The high court next turned to the C.V., which it suggested the trial court may not have dismissed if it hadn’t found other parts of the affidavit insufficient. Delaware public policy favors allowing lawsuits to continue, it said. And trial courts have discretion to allow litigants to cure procedural mistakes. Thus, the trial court should have used its discretion to allow Dishmon to cure the mistake — particularly in light of the requirement that the C.V. be submitted in a sealed envelope, leaving the attorney no chance to double-check its contents. Finally, the high court urged trial judges to supply reasoning for their decisions, which was absent in this case.

Though the court is reserved in its disapproval, this case still seems like a victory to me as a Philadelphia injury lawyer. In essence, the high court found that the trial court dismissed the case arbitrarily and, for the first two reasons, for reasons contrary to the law. Plaintiffs are required to file these affidavits in many states, including Pennsylvania. While the requirements differ from state to state, the same principle applies: Litigants should not be required to go beyond the requirements of the statute in order to keep their cases alive. Indeed, these statutes are themselves special requirements that don’t apply to other kinds of lawsuits and were likely put in place for political reasons, requiring families that suffered from Pennsylvania nursing home abuse to jump through extra hoops. As a Philadelphia medical malpractice attorney, I vigorously fight to ensure my clients’ cases aren’t dismissed with arbitrary court rulings.
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As a Pennsylvania nursing home lawyer, I was interested to see a case about an issue that’s relatively underreported: discrimination in nursing homes. According to the Allentown Morning Call, a Pennsylvania court has ruled in favor of a woman who said she was kicked out of a Walnutport nursing home when the staff discovered that she has HIV. G.D., who is 36 and also suffers from schizophrenia and bipolar disorder, ended up in a locked psychiatric ward because she had nowhere else to go. Her attorney said this was a textbook example of the harm discrimination causes. The Pennsylvania Human Relations Commission won a court judgment ordering Canal Side Care Manor and its owner, Lakshmi Kademani, to pay damages to G.D. and a fine to the state. In its ruling, the court also found that Kademani filed a frivolous appeal and was taking steps to hide her assets from the court.

G.D. went to Canal Side after her group home recommended more care than it could provide. She did not expressly tell Canal Side that she had HIV, but a Canal Side employee discovered it when asking what certain medications were for. Kademani, concerned abut HIV transmission through G.D.’s urinary incontinence, then gave G.D. 24 hours to leave. G.D.’s healthcare team told Kademani that there was no serious risk with proper precautions, which were already in place. Nonetheless, G.D. was kicked out, and because her family was unable to provide the care she needs, ended up in “lockdown” at a mental hospital. G.D.’s sister filed a complaint with the Pennsylvania Human Relations Commission, which eventually ruled for G.D., fining Canal Side $5,000 and ordering $50,000 more in damages to G.D. Canal Side and Kademani appealed. The Commonwealth Court was unimpressed with the appeal, finding that it was meritless, legally inadequate and intended to delay paying the damages. Thus, it ordered attorney fees for G.D.’s appeal as well.

As a Philadelphia injury lawyer, I’m pleased to see a decision upholding the rights of a woman with a limited ability to advocate for herself. As the article points out, the effects of the discrimination against G.D. were not minor. After she was evicted from the nursing home, her family tried for a month or more to provide care, even though they didn’t have the special expertise necessary for mental illness, HIV and incontinence. After that failed, G.D. ended up in a mental hospital, imprisoned and unable to live a full life. When nursing home patients stay in their homes, discrimination may still rob them of adequate medical care. For example, studies document that African Americans tend to be in different and lower-quality homes than white patients. This kind of indifference can easily lead to Pennsylvania nursing home abuse and neglect. As a Philadelphia medical malpractice lawyer, I believe our elderly and disabled people deserve better.
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I’ve written several times before on this blog about the local nursing home scandal centered around the Quadrangle nursing home in Delaware County. In May, I mentioned that the family of Lois McCallister announced plans to sue the Quadrangle’s parent company, Sunrise Senior Living, for negligence in the case. As a Pennsylvania nursing home lawyer, I was interested to see articles last week announcing that McCallister’s daughter and son-in-law, Mary and Paul French, have filed their suit. According to the Delaware County Daily Times, the Frenches filed their complaint Oct. 12 alleging that Sunrise negligently failed to train workers, negligently kept the home understaffed and failed to follow state regulations intended to protect vulnerable residents. They seek more than $50,000 in damages, but the Frenches said at a press conference that they really want to ensure that no other nursing home resident suffers in the same way.

The Frenches began to suspect the abuse after McCallister made comments suggesting it and even showed physical injuries. Quadrangle employees told them the complaints were probably a result of McCallister’s dementia, but Paul French bought a “nanny cam” disguised as a clock and put it in McCallister’s room. The resulting video showed three Quadrangle employees physically abusing McCallister, refusing to let her get dressed and making fun of her as she got upset. All three of them — Samirah Traynham, Ayesha Muhammed and Tyrina Griffin — have been fired and are awaiting a Nov. 14 trial on charges of assault, harassment and more. McCallister has since moved in with the Frenches, but Mary French said her mother still begs family members not to hurt her as they say goodnight. Paul French said at the conference that since the story went public, he’d gotten a letter from the husband of another Quadrangle resident, thanking them for the intervention because he believes care in the dementia unit is now better than it had been for the past two years.

As a Philadelphia injury lawyer, I am not at all surprised. When a media spotlight is shined on a nursing home, it frequently gets its act together, if only for the cameras. In this case, however, the Quadrangle was answering to state regulators as well: The state Department of Public Welfare revoked its license in April. That action was partly a reaction to McCallister’s abuse and the Quadrangle’s failure to report it, but articles at the time outlined other violations, including withholding prescribed medication, giving unprescribed medication, failure to conduct required employee background checks and more. A few years before, Sunrise had been disciplined for allowing dementia patients to consume paint and antibacterial cleaner. All of these forms of Pennsylvania nursing home abuse and neglect threaten the lives of people who are supposed to be cared for. As a Philadelphia medical malpractice lawyer, I suspect the French family’s lawsuit is right to ascribe many of the problems to cost-cutting — but for $8,000 a month, homes should do better.
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A recent article about race-based differences in care caught my eye as a Pennsylvania nursing home lawyer. According to HealthDay News, a study by Brown University has found that African American nursing home patients are 23 percent less likely than white residents to get a flu vaccination. In fact, the vaccination rate for all groups fall short of Medicaid and Medicare’s target rate of 90 percent, at 82.75 percent. But that number for white residents was 83.46, while for African Americans it was 77.75 percent. Researchers suggested several explanations for the disparity, including a higher rate of refusal among African Americans as well as disparities in care.

The numbers come from annual patient records at 14,000 American nursing homes, during the flu seasons from late 2006 to early 2009. The results appear in the October issue of the journal Health Affairs. In a press release from Brown, study co-author Vincent Mor said the two racial groups often end up in different nursing homes, and that evidence suggests the ones serving African Americans are lower in quality. However, the researchers found a consistent difference in the groups’ vaccination rates even within the same homes — on average, African Americans were 15 percent less likely to be vaccinated than their white neighbors. Part of the problem could also have to do with vaccination refusal, the article noted; in 2008-2009, 12.88 percent of African Americans refused the vaccine, while only 8.93 percent of whites did. The authors suggested that future studies look into whether the refusals are influenced by the way the vaccination is offered.

The vaccine refusal rate is certainly interesting and worth following up on. But as a Philadelphia injury lawyer, I strongly suspect nursing home quality has much to do with the disparity. In my line of work, I see the effects of budget cuts on quality of care. When there are fewer staff members or less well-trained staff members, those who remain have to do more with less, and this can make it easy to forget or neglect important things, even to the point of Pennsylvania nursing home abuse. It can also make tempers shorter thanks to stress. All of this makes it more likely that something important but routine like a flu shot will be left by the wayside. This is especially a shame because the flu is particularly dangerous for older and immune-compromised people, who can easily be dehydrated by too much vomiting or diarrhea. Failing to address this is a dangerous type of neglect. As a Philadelphia medical malpractice lawyer, I hope homes are resolved to do better this flu season.
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As a Pennsylvania nursing home lawyer, I was interested to see a recent news item about a nursing home in the Pittsburgh region facing a lawsuit. According to the Altoona Mirror, the family of Alfred Pelligrino has sued the Valley View Nursing Home of Blair County, alleging Pelligrino died of complications from an improperly treated bedsore. Pelligrino suffered from Pick’s disease, a neurological disorder that eventually leads to death, but does not put sufferers at high risk for pressure sores. Nonetheless, the family alleges that Valley View, which is county-owned but run by a private contractor, failed to take steps to prevent the sores, then failed to treat them before they caused an infection that led to kidney and heart failure. They are requesting payment of the medical expenses related to Pelligrino’s illness as well as damages for his pain and suffering and their loss.

When Pelligrino entered the home in July of 2009, he was using a wheeled walker and could talk to nursing home staff. He had no skin problems at the time. The first pressure sores showed up in October of that year, and he was taken to a local hospital’s wound clinic multiple times between then and January of 2010. The family transferred him to another home, the Hollidaysburg Veterans Home, in February of 2010, but the wounds did not improve. According to the lawsuit, Pelligrino’s bedsores were so deep that they needed surgery to heal. The open wounds caused an infection that triggered congestive heart failure, which in turn caused kidney failure. The family’s lawsut, filed on behalf of wife Virginia Pelligrino, charges Valley View with substandard care and failure to prevent the bedsores.

As a Philadelphia medical malpractice lawyer, I would be interested to read more about these allegations. Because Pelligrino was relatively mobile when he entered the home, he was tagged as a low-risk patient for pressure sores. It’s possible that this lulled the home’s employees into a false sense of security. It’s also possible that he became less mobile after entering the home, due to restrictions on his movements, health deterioration or inappropriate medication — which unfortunately is not uncommon. But whatever the reason, the risk of bedsores for nursing home patients is well known, and so is the relatively simple method of preventing them. Failure to take those steps is a form of Pennsylvania nursing home abuse and neglect (as would be the inappropriate drugs). As a Philadelphia injury lawyer, I hope any allegations of this kind of impropriety come out in the trial, so western Pennsylvania families can be warned about any potential risks.
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