Articles Posted in Pennsylvania nursing home news

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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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Did you recent lose a loved due to suspected Philadelphia nursing home abuse or negligence?

If so, you might find it instructive to read about a consolidated opinion handed down last week by the West Virginia Supreme Court of Appeals. The decision nicely demonstrates how higher level courts can powerfully influence lower level courts.

The case has many layers, so we’ll walk through the details in a straightforward fashion.

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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 was extremely interested to see an announcement of arrests in a major alleged Medicare fraud ring involving nursing home care. According to the Philadelphia Business Journal, the FBI announced in late March that it had arrested five nurses at Home Care Hospice Inc. of Philadelphia, a for-profit hospice. Those arrested, all of greater Philadelphia, include Patricia McGill, the hospice’s director of professional services; and nurses Natalya Schvets, Giorgi Oqroshidze, Yevgeniya Goltman and Alexsandr Koptyakov. Those arrests followed the October arrest of HCH’s co-owner, Matthew Kolodesh, In all, the defendants are accused of submitting $9.32 million in fraudulent Medicare claims, for patients who weren’t eligible for hospice care or who received less care than was billed for them.

According to the Business Journal, the now-defunct HCH provided hospice care for patients from nursing homes, private homes and hospitals. However, the FBI believes employees conspired to admit ineligible or inappropriate patients between 2005 and 2008. The four nurses McGill supervised are accused of creating fraudulent nursing notes for about 150 patients, in support of Medicare bills for services never provided; other notes reflected a higher level of care than actually provided. Those notes were submitted by McGill and an unindicted hospice director called A.P., for a total of $9.328 million in false Medicare claims. When HCH was notified of a claims review audit, McGill and A.P. reviewed and altered charts where necessary to support the false documents. After the audit required HCH to refund $2.625 million to the federal government, McGill and A.P. asked the staff to discharge hospice patients; 128 were discharged over four to five months, but often moved to another hospice owned by Kolodesh. Within six months, about 20 percent of those discharged were returned to HCH.

Unfortunately, this kind of news about a for-profit nursing business does not surprise me as a Philadelphia medical malpractice lawyer. I recently wrote about an article exposing exactly this kind of fraud in for-profit hospice care, and it’s easy to see the parallels with for-profit nursing home care. With hospice care, the goal is to make patients comfortable at the end of life, but fraudulently included patients often aren’t at the end of life. That means they may be inappropriately given powerful painkillers or other drugs, and that they and their families may suffer emotionally from believing they are near death. That belief may also lead patients to abandon future plans and squander the time they do have in expensive full-time care they don’t need — another form of Pennsylvania nursing home abuse. As a Philadelphia injury lawyer, I believe all of these injuries can and should be penalized when appropriate, including through a lawsuit.
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As a Philadelphia injury lawyer, I know financial exploitation of seniors is a serious problem, but one that gets discussed less than some of the horrifying Pennsylvania nursing home abuse or neglect cases that have made it into the media. So I was interested to see a report in the Philadelphia Inquirer on Feb. 20 that a nursing home staff member was caught with property belonging to her patients when she was pulled over for another reason. Shakeana Sims of Newark, Del., works at the Kendal Crossroads Nursing Home in Kennett Square, Penn. Sims, 25, was pulled over at 12:45 a.m. after an officer noticed that her car had a false registration. Computer records then showed several outstanding warrants for Sims, leading to her arrest and the discovery of the stolen objects.

Sims is a nurse’s aide at the home, in Chester County. News sources did not report on the reasons for her outstanding warrants. However, they were enough to lead to her arrest. After she was taken to the police station in New Castle County, Del., for processing, officers found the stolen items among her personal belongings. They included a watch, a bank card and a blank check, all belonging to two of the residents Sims cares for at the Kendal Crossroads nursing home. She was arrested for stealing property from those residents, as well as for several traffic offenses, and held in lieu of bail.

As a Pennsylvania nursing home lawyer, I suspect this arrest is raising some alarms among residents of Kendal Crossroads and their family members. Theft from nursing home residents is not necessarily reported by the state and federal agencies that track nursing homes’ safety and hygiene, but it’s a serious problem. As with physical abuse and neglect, nursing home patients may not be able to raise an alarm about theft because of their health conditions and because nursing home staff is not predisposed to believe them. As a result, discovery of the theft is often delayed until family members notice missing money or valuables. By this time, of course, a thief may have gotten access to the patient’s accounts, potentially destroying his or her financial security. Patients and their families at this nursing home may be wondering how this happened under the watch of supposedly careful administrators — and whether any other employees have sticky fingers or a criminal record that should concern them. As a Philadelphia medical malpractice lawyer, I hope these families are effectively advocating for themselves.
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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 have watched with interest the progress of multiple lawsuits over the antipsychotic drug Risperdal (riperidone). The drug, made by Johnson & Johnson’s Janssen subsidiaries, is the subject of a federal lawsuit based in Massachusetts and numerous state lawsuits, all alleging that Janssen paid kickbacks to medical providers to promote the drug, thus defrauding Medicare and Medicaid, and downplayed negative safety information. This is especially disturbing because post-approval studies have shown that Risperdal carries a high risk of stroke, weight gain and related metabolic problems like diabetes. For this reason, it is no longer widely used off-label in dementia patients — one of the uses Janssen is alleged to have illegally promoted.

According to the Morristown, N.J., Daily Record, Pennsylvania Inspector General’s investigator Allen Jones noticed in 2002 that a computer program used by the state seemed to recommend Risperdal even when a less expensive medication would be appropriate. Jones couldn’t find any independent studies suggesting that Risperdal or other Janssen drugs were more effective than older generics, but the computer program, which doctors used to prescribe drugs, mandated them. Jones went public with his claims in 2004 and was fired. He is now an expert witness in a Texas state lawsuit alleging that the drug company defrauded the state’s Medicaid program out of many millions of dollars, through a similar computer program and questionable payments to doctors. A similar Pennsylvania lawsuit is on appeal, and ten other states and the federal government are also pursuing claims.

By the time Risperdal’s patent expired in 2007, it had generated $25 billion in profits for Janssen. It is approved for the treatment of patients with schizophrenia and bipolar disorder, and sometimes with autism. As a Philadelphia injury lawyer, I’m interested in the nursing home safety aspects of this story. The drug’s use to control dementia symptoms is off-label to start with, which means the company may not promote it for that use but doctors are free to prescribe it. This means offlabel marketing, including but certainly not limited to the Omnicare kickbacks, is already a violation of the law. However, independent studies have shown that Risperdal may increase the risk of death when used in dementia patients. In most cases, the death was cardiovascular in nature, which means heart failure, stroke or another serious medical emergency. As a result, the FDA required a black box warning on Risperdal’s label in early 2011. As a Philadelphia medical malpractice lawyer, I’m not sorry to see that the rate of new prescriptions for this purpose has plummeted since then. Not only is the risk too great, but the use to calm irritable dementia patients could be considered a form of Pennsylvania nursing home abuse — chemical restraints.
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As a Philadelphia injury lawyer, I was disappointed to see that a Philly-area nursing home is getting national attention for the wrong reasons. As the Philadelphia Inquirer reported Oct. 29, the U.S. Centers for Disease Control and Prevention called out a Montgomery County nursing home for having “one of the largest and most prolonged” outbreaks of streptococcus infections in a nursing facility. The CDC report did not name the home, but the Inquirer determined that the home is Arista Care at Meadow Springs in the town of Plymouth Meeting, and an administrator there confirmed the outbreak. In all, 13 residents had invasive strep and 10 had noninvasive strep. The CDC urged all long-term care facilities to investigate even a single case of strep and ensure they have good practices for controlling infections.

Two people died at Arista Care, but the home disputes that the cases were directly linked to strep. However, the CDC and the Pennsylvania health department both had records of multiple infection control problems at Arista Care, including ineffective “hand-hygiene practices.” State records showed that not every room had gloves and that the facility had housekeeping problems. The outbreak started in October of 2009 and was likely carried into the facility by more than one source, the article said. Near the beginning, admissions to the facility were suspended for about two weeks while five people, including four workers, were treated for the infection. In April of 2010, Artsta Care hired a full-time worker whose job is infection prevention. The spokesperson also mentioned adding hand sanitizer dispensers to every room and testing each new patient for strep. A state spokesperson said there have been no new cases since December of 2010.

It’s a relief to hear that this home is getting praised by the state for taking the necessary steps to stop the outbreak. But as a Pennsylvania nursing home lawyer, I think it’s worth asking what kind of ineffective practices may have led to the outbreak in the first place. Infectious disease control is absolutely vital at nursing homes, because nursing homes combine two features that make outbreaks particularly risky: vulnerable older people and many people living in close quarters. Age and illness can both depress an individual’s immune system; once the infection takes hold, age makes the victim more likely to develop a complication like dehydration. And living in close quarters makes it very easy to spread an infectious disease like strep, which spreads through close contact between people. As a Philadelphia medical malpractice lawyer, I hope nursing homes take the CDC’s warning to heart, because the risk is severe.
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