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The 911 call was replayed on all the major television news programs after it was released by the Bakersfield Fire Department. A Bakersfield nurse working at a central California retirement home repeatedly refused to give CPR to an 87 year old patient. The patient died as a result of the nurse’s refusal to administer aid.

Throughout the distress call, the 911 dispatcher, Tracey Halvorson, urged the nurse to give the collapsed patient the most minimal CPR to keep her breathing until an ambulance could arrive at Glenwood Gardens. The dispatcher asked the nurse, “Is there anybody that’s willing to help this lady and not let her die?”

The nurse’s answer was hard to believe. She said, “Not at this time.” The nurse refused to give her name. She claimed that the nursing facility’s patient policy prevented her from either giving the CPR herself or even finding another nurse or bystander to do it. The dispatcher tried to get the nurse to summon paramedics at the nursing home to administer the CPR to the patient who had collapsed in the dining room. The dispatcher even asked the nurse to find another resident, a gardener or even a bystander who did not work at the home to help the stricken patient. Halvorson could be heard asking “Can we flag someone down in the street and get them to help this lady? Can we flag a stranger down? I bet a stranger would help her.”

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As a Pennsylvania nursing home lawyer, I’ve been pleased to see a recent series of state supreme court decisions denying arbitration in cases where the arbitration agreement was not signed by the patient or a legal representative. A recent example is SSC Montgomery Cedar Crest Operating Company, LLC v. Bolding, in which the Alabama Supreme Court declined to compel arbitration with Linda Bolding, attorney in fact and next friend of Norton Means. Means, Bolding’s father, was admitted to a nursing home owned by the company, Cedar Crest, after experiencing heart problems in early 2012. Another daughter completed the paperwork including a mediation and binding arbitration agreement. When Bolding later sued Cedar Crest for negligence, the company attempted to compel arbitration, but the trial court denied the motion and the Supreme Court of Alabama affirmed.

Means was hospitalized in January of 2012 for heart attack and/or stroke symptoms. A few weeks later, he moved to Cedar Crest for rehabilitation and nursing services during his recovery. His daughter, Michelle Pleasant, filled out the paperwork for him, including a dispute resolution agreement waiving his right to a jury trial and agreeing to binding arbitration and mediation. The “parties” included in the agreement included the patient, a guardian, anyone who would have the right to bring a claim on the patient’s behalf, and anyone who would have the right to bring a wrongful death claim. Pleasant also signed a section indicating that Means had been adjudged incompetent. After about a month and a half, Means was readmitted to the hospital for dehydration, malnourishment and an infection. Bolding sued Cedar Crest four days later for negligence. She argued that Pleasant had no authority to sign on Means’s behalf and therefore the arbitration agreement was void. The trial court agreed, and SSC Montgomery appealed.

The Alabama Supreme Court noted that it has a distinct body of caselaw about whether and how to enforce nursing home arbitration agreements signed by residents or their families. A recent Eleventh Circuit review of one such case found that patients’ representatives are bound by contracts that bind the patients themselves–but the high court found that Means was not bound by the underlying contract. It noted that it’s uncontroversial that Means was not mentally competent when admitted. Prior cases have held that mentally incompetent nursing home residents are not bound by their representatives’ arbitration agreements, the court said. Pleasant signed the arbitration agreement as a “family member” and incorrectly represented that she had the authority to sign on her father’s behalf; it’s undisputed that she had no power of attorney for him. Nor did Pleasant have apparent authority, the court said, because Means was not competent to agree to make her his representative. Thus, the Supreme Court affirmed the trial court.

As a Philadelphia medical malpractice lawyer, I’m pleased to see another decision forbidding enforcement of contracts that the signer had no authority to enter into. Courts in many states have been reluctant to enforce these arbitration contracts when the signer is not the legal representative of the beneficiary. This upholds well-established legal norms as well as benefiting families that have been victimized by Pennsylvania nursing home abuse. If someone claims to speak for a mentally incompetent person, the speaker should be required to show some proof that she has legal authority, because to do otherwise invites serious abuses. As a Philadelphia injury lawyer, I’m glad judges are giving these families a chance to prove their allegations in open court.
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As a Philadelphia medical malpractice lawyer, I was interested to read about a recent court ruling involving a suburban Philly nursing home. According to McKnights Long-Term Care News, a federal judge has dismissed a case against Neshaminy Manor, a home run by Bucks County. The lawsuit alleged that negligent practices at the nursing home led to injuries and eventually the death of Almira Will. Will depended on an oxygen tank, but her daughter, Lauretta Notwick, alleged that she frequently found the tank empty or turned off when she visited. The federal judge in the case granted a dismissal to Bucks County, ruling that the county is not legally responsible for injuries that do not stem from county policy, and that no policy appears to have led to Will’s injuries.

Will had end-stage chronic obstructive pulmonary disease, a condition that required her to have constant oxygen from a tank. She was admitted to Neshaminy Manor in August of 2008 after breaking her hip. Notwick’s lawsuit alleged that during visits, she frequently found her mother’s oxygen tank turned off or empty. She claimed that this was a result of a Bucks County policy saying staff “may” replace oxygen cylinders with needles halfway into the red zone that signals a need for a refill. The federal judge, Lynne Sitarski, ruled that the nursing staff may have provided poor care, but the Bucks County policy was not to blame because it left the replacement time up to staff discretion. Notwick also argued that staff negligence led to Will falling numerous times while at Neshaminy Manor, once breaking her hip again. But the judge ruled that Bucks County is not liable for this because there’s no evidence that allowing Will to fall was a result of county policy.

As a Pennsylvania nursing home lawyer, I hope this family continues to pursue the lawsuit. The article doesn’t make clear who exactly was sued, but typically, the nursing home is legally responsible for its employees’ behavior. With private homes, that’s true regardless of whether the employees were carrying out policy or simply making bad choices. The rules may change because this home is part of the Bucks County government, but in general, government employees are not immune to lawsuits. Of course, Notwick can also sue the employees who provided negligent care as individuals, but suing them as individuals does nothing to induce their superiors to make (or enforce) policies that avoid Pennsylvania nursing home abuse. Individuals also have far less money, which may be an issue for this family if they suffered significant financial losses from the bad care, such as high medical bills and funeral expenses. As a Philadelphia injury lawyer, I would be interested to see whether this ruling is revisited.
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I was interested to see a recent decision about the culpability of a nursing home’s management in the death of a resident. As a Pennsylvania nursing home lawyer, I believe nursing home management has a strong connection to the quality of the care at the home, because management decisions like staffing levels, training for new staff members and more has a direct effect on the staff’s ability and willingness to give quality care. For example, some states have laws requiring a registered nurse to be on the premises at all times because an RN has more training and experience than the lowest-level aides. The advantages are clear, but the laws are necessary because not every nursing home company wants to pay the higher salary an RN can command. In Wilson v. Americare Systems Inc., the Tennessee Supreme Court reinstated a jury verdict, finding there was material evidence that management decisions played a role in a patient’s death.

Mable Frances Farrar, a retired schoolteacher, was in good health at age 83 except for occasional constipation problems. She was hospitalized for four days in 2003 for constipation and spent two months afterward at a nursing home to regain her strength. She was then admitted to Celebration Way, the assisted living home that is the subject of this case. Her doctor prescribed a daily dose of the over-the-counter laxative MiraLAX and instructed the home to contact her if Farrar became constipated. Evidence showed that Farrar got far less MiraLAX than prescribed, including none at all one month. When she became constipated in May of 2004, the doctor ordered four enemas a day. She got one enema that day and none the next day. Her daughters visited the day after and requested an enema; the nurse who administered it told colleagues she was doing it so Farrar “would shit and shut up.”

Unfortunately, this nurse administered the enema without checking Farrar for signs of an obstructed bowel, for which an enema is not appropriate. The enema perforated her colon, and she died at the hospital that day. Her daughters sued the nurse, the manager in charge, the owner of the home and its contract management company, Americare, which they alleged failed to provide adequate staffing levels, training or skilled personnel to handle Farrar’s care. The jury found Americare 50 percent at fault for the death, for failure to provide sufficient personnel, and ordered $5 million in punitive damages. On appeal, however, the Tennessee Court of Appeals reversed, finding there was no material evidence that Americare’s staffing decisions caused Farrar’s death.

The decision was reversed again at the Tennessee Supreme Court, reinstating the damages. The high court found that there was sufficient material evidence permitting the jury to reach the verdict it reached. Deposition testimony established that the staffing was insufficient, that Americare knew about it and that it couldn’t or wouldn’t pay for the extra staff needed. The high court said the evidence was also sufficient to support the inference that the quality of care suffered as a result; testimony established that non-licensed staff members were asked to do work that nurses should do or the work went undone for lack of a nurse. Expert testimony sufficiently established that this violated standards of care, the court said. Thus, it found there was material evidence supporting the jury’s finding, and reinstated the verdict against Americare.

As a Philadelphia medical malpractice lawyer, I strongly agree with the jury that the standard of care was not met in this case. Understaffing is, unfortunately, a well-known problem with nursing homes, particularly private homes that are under pressure to make a profit. Staff members cost money; well-qualified staff members like an RN cost a lot of money. As a result, homes may be tempted to cut corners on staff–but this sometimes means a substantial reduction in quality of care. When staff members in a nursing home are stretched too thin, they are more likely to forget things or skip things that seem unimportant. They also don’t have time to notice small problems that could progress into serious forms of Pennsylvania nursing home abuse, such as bedsores, dehydration or medication mistakes. These are classic warning signs that I look for in my work as a Philadelphia injury lawyer.
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As a Pennsylvania nursing home lawyer, I was pleased to see that a Western Pennsylvania family has settled its Pennsylvania nursing home abuse lawsuit with a nursing home. According to the Altoona Mirror, Affinity Health Services Inc. settled claims that a worker there assaulted a 77-year-old woman two weeks before her death. Christine Welshans was left with bruises and blood on her face after the alleged assault on Aug. 16 or 17 of 2009. The aide accused of hurting Welshans was also accused of assaulting another patient, but the case involving Welshans was closed after her death two weeks later was ruled heart-related. The family’s lawsuit noted that the aide, not named in the article, had a history of abusing patients at another home.

Welshans had physical problems, but was pleasant and able to interact with staff until the night of Aug. 16 or the early morning of Aug. 17. That’s when the lawsuit alleges she was battered around the face by the aide. A city police report the next day said Welshans had bruising around her eye, her cheek and her chin, and dried blood on her cheek. After the incident, she was agitated and claimed someone had hit her. There was no witness to the attack, but a witness did see the other attack that night, in which the aide pinned a woman’s arms to her body using the belt on a robe. Though that incident led to charges, they were dismissed at a preliminary hearing. The lawsuit claimed Affinity was negligent in hiring the aide with the history of violence.

As a Philadelphia injury lawyer, I’d like to know what happened to the aide–who, let us remember, assaulted the other patient in front of witnesses. The article didn’t mention whether the aide was disciplined by the state or the company for the assault on the other patient, or for the allegations involving Welshans. It does mention that the law enforcement officer who gave the aide a voice stress test after the incident thought he or she was lying, which was probably important in court. If the aide was not fired after these incidents, Affinity will have a lot of questions to answer–especially if he or she assaults more patients. For-profit nursing homes don’t like to lose staff because replacing them costs money, but keeping this kind of employee puts patients in danger. As a Philadelphia medical malpractice lawyer, I hope Affinity did the right thing with this aide.
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As a Pennsylvania nursing home lawyer, I was interested to see a decision from neighboring West Virginia voiding an arbitration contract signed by the patient’s health care surrogate. In State ex re. AMFM, LLC v. Circuit Court, Nancy Belcher was the designated health care surrogate of Beulah Wyatt. Wyatt died after 10 months in the McDowell Nursing and Rehabilitation Center, and Lelia Baker sued the home for negligence she said contributed to Wyatt’s death. Belcher signed a contract including an arbitration agreement when Wyatt entered the home, and McDowell moved to enforce the arbitration agreement in Kanawha County court. But that court found that Belcher, as a health care surrogate, had no authority to waive Wyatt’s right to a jury trial, and the West Virginia Supreme Court agreed.

Wyatt’s doctor determined in September of 2009 that Wyatt was not capable of making her own health decisions, so the doctor selected Belcher, Wyatt’s daughter, as a health care surrogate. A few days later, Wyatt was admitted to McDowell, a process that required Belcher to sign many documents. Among them was an agreement to litigate any disputes solely through binding arbitration. Wyatt stayed at the home 10 months, during which time Baker–another of her daughters and the representative of her estate–alleges that she developed malnutrition, dehydration, bedsores, infections and other injuries Baker believes led to Wyatt’s death. Baker sued in December of 2011, and McDowell moved to dismiss and enforce the arbitration agreement. The circuit court denied this motion, concluding that Belcher had authority to make medical decisions, but that signing the arbitration agreement was not such a decision. It also rejected an apparent authority argument, saying a later power of attorney assignment, was suspect given Wyatt’s diminished capacity.

McDowell appealed to the West Virginia Supreme Court, requesting a writ of prohibition stopping enforcement of this judgment. The high court investigated whether a valid arbitration agreement exists, and concluded that it does not. Health care surrogacy was created by the state legislature as a process for authorizing health care decisions for incapacitated adults. The law defines health care decisions as a decision to give, withhold or withdraw informed consent to health care. Belcher herself signed a form accepting the authority to make “medical decisions” for Wyatt. Nowhere is the authority extended to legal rights. Thus, the high court said, it’s clear that a health care surrogate has no authority to sign an arbitration form–particularly since this one was designated as optional and thus not a prerequisite to receiving health care. Thus, the high court declined to stop enforcement.

As a Philadelphia injury lawyer, I’m pleased to see this ruling. The opinion itself notes that its decision is in line with many other jurisdictions that have considered the issue of a health care surrogate, or a medical power of attorney, signing an arbitration agreement. People with full power of attorney may have the capacity to waive jury trial rights, but Belcher was not such a person. This is particularly important because entering a nursing home is often done when the patient herself is not competent to sign, and the family members may not fully understand the issues, even if they do have the power to sign. As a Philadelphia medical malpractice lawyer, it’s my experience that people who lack capacity are often those most vulnerable to Pennsylvania nursing home abuse, since they have a limited capacity to defend themselves or even notify loved ones about abuse.
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As a Pennsylvania nursing home attorney, I was surprised and disappointed to see an article about sexual assault at a Lancaster County nursing home. According to Lancaster Online, a man at Maple Farm Nursing Center in Akron, Penn., is in county jail after admitting to sexually assaulting a female Alzheimer’s patient at the facility. Glenn Hershey of Akron is charged with involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault and sexual assault in connection with the incident that took place early on Jan. 20. He has been discharged from the nursing home and will not be permitted to return, the home’s executive director said.

Nursing home staff checked on the victim, an 86-year-old Alzheimer’s and dementia patient, around 4:50 a.m. Sunday and found her nude from the waist down and complaining of pain in her abdomen and genitals. Earlier that night, staff had seen Hershey leaving the victim’s room and asked if she’d had a visitor, but she said she had not. Court records show that the nursing home staff was aware that Hershey is a sex offender convicted in 1993 for sexual assault of a professional escort. He had called the escort and offered her money for sex, but when she discovered that he didn’t have the money, he assaulted her anyway. After Sunday’s assault, Hershey admitted to sexual contact with another female resident at Maple Farm. The home declined to provide further details, citing privacy concerns.

Because Maple Farms staff knew about Hershey’s past history, many residents’ families are probably questioning whether staff did an adequate job of protecting other residents from him. In fact, some may be wondering whether it was appropriate to admit Hershey to the home at all. Dementia patients like the victim need extra protection because their disease robs them of the ability to fully take care of themselves. If staff members knew about the potential for a rape and didn’t take adequate steps to protect residents, they may be guilty of neglect, which is a form of Pennsylvania nursing home abuse. As a Philadelphia injury lawyer, I wouldn’t be at all surprised to see a lawsuit from the victim’s family, and possibly action from other families as well.
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As a Pennsylvania nursing home lawyer, I know that families seeking justice and compensation through a lawsuit have a hard road ahead. Part of that process is proving that a death or serious injury took place because of the nursing home’s negligence — but when the death took place without a witness, this may be very hard to prove. In Freudeman v. Landing of Canton, Dennis Freudeman alleged that his mother, Dorothy Freudeman, was permanently brain-injured when a staff member at her nursing home gave her anti diabetic medication by accident. Dorothy Freudeman spent 15 months semicomatose after the mistaken medicine caused hypoglycemia, and eventually died. The Sixth U.S. Circuit Court of Appeals upheld a res ipsa loquitur jury instruction given because Freudeman couldn’t prove how she got the medication.

Dorothy Freudeman was a resident at the eastern Ohio nursing home The Landing of Canton from 2001 to 2007, when she was 80. She suffered from Parkinson’s disease, detention and the effects of a 2001 stroke, but no history of diabetes or hypoglycemia. She was able to walk, groom herself, use the restroom and feed herself before July 5, 2007. On that day, a Landing employee found her in an unresponsive state. At the hospital, she was diagnosed with very low blood sugar causing brain dysfunction. Doctors suspected she’d mistakenly been given anti-diabetic medication and ordered a test, but it was never performed. She was semi-comatose from that day until she died in October of 2008. Her son sued Landing, alleging she was given anti-diabetic medication, and presented evidence that Landing was routinely negligent in handling medicine. The court gave the jury a res ipsa loquitur instruction over Landing’s objection, and the jury ultimately awarded more than $2 million to the family.

Landing appealed both the res ipsa loquitur instruction and the high punitive damages award. Most plaintiffs must be able to cite specific actions by the defendant to prove negligence, but a res ipsa loquitur instruction permits the jury to infer neglect from circumstantial evidence. Furthermore, the Sixth Circuit said, the jury instructions were structured so that the jury had to find that the injury was caused by anti-diabetic medication before it could apply res ipsa. Because it did so find, the court said, Landing’s arguments that the injury’s cause was disputed or could have come from another source are without merit. It also rejected an argument that the cause of the injury was not under Landing’s exclusive control, noting that Landing controlled or should have controlled all medications in the facility. And, the Sixth said, this is an appropriate case for res ipsa loquitur because the plaintiffs were unable to ascertain the cause of Freudeman’s injury. However, the appeals court did reduce the punitive damages award, finding that while punitives were appropriate, Ohio law has a damages cap that limits it to twice what the estate was awarded — not the estate and each of the decedent’s children.

As a Philadelphia injury lawyer, I’m always disappointed to see a jury’s choices disregarded because of an arbitrary damages cap. A damages cap is much beloved by nursing homes and other potential defendants because it takes away the power of a jury to hand down the penalty it feels is appropriate. Regardless of the circumstances, the jury may not “send a message” any higher than the arbitrary number picked by the state legislature. However, the decision on the jury instructions is pleasing. When someone dies because of Pennsylvania nursing home abuse, that person may die in the care of the nursing home responsible for the death. That makes it very hard to independently verify what happened, since the only potential witness is adverse to the claim. As a Philadelphia medical malpractice lawyer, I appreciate that this jury instruction is available when the circumstances make presenting a fuller body of evidence impossible.
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As a Pennsylvania nursing home lawyer, I was disappointed to see another case of a hidden camera turning up serious Pennsylvania nursing home abuse. NBC10 Philadelphia reported on an abuse case that was uncovered at a nursing home in Bucks County. Two former employees at the Arbors at Buck Run were caught on camera dumping a wheelchair-bound woman onto a bed, singing and yelling directly into her face. Regina Battles, 20, and Irene Rodriguez, 22, have since been fired and are in county jail on charges of neglect of a care-dependent person, reckless endangerment, harassment and assault. The home has been issued a shutdown order by the Pennsylvania Department of Public Welfare, but it’s appealing that order and will remain open for 30 days.

The Philadelphia Inquirer reported that the victim’s daughter planted a hidden camera in the room because she suspected mistreatment of her 83-year-old mother, an Alzheimer’s patient. On three consecutive days in October, the camera caught Battles and Rodriguez handling the victim roughly as they helped her into and out of bed. For example, the videos show Battles grabbing and pulling or pushing the woman’s legs roughly; and both workers placing her on the floor before shoving her into bed. Another video shows the victim falling out of bed with no help coming and no preventive measures. The woman can clearly be seen crying in some videos and was caught another time covering her face in fear. The victim was taken to the hospital in November with minor wounds to her legs and feet, and is now living at another home.

The Arbors at Bucks Run, a private for-profit home, immediately fired both employees after the family complained to the state. However, the complaints triggered a state inspection Dec. 3 and revoked the home’s operating license Dec. 7. The Inquirer said the action was a penalty for hiring Rodriguez and Battles before finishing background checks; PhillyBurbs.com cited gross incompetence, negligence and misconduct. The home may continue operating while it appeals.

As a Philadelphia medical malpractice lawyer, I look forward to hearing more about this case. It has several similarities with the 2011 case involving the Quadrangle nursing home, in which a dementia patient’s daughter confirmed suspicions of abuse with a hidden camera. That family went on to file a lawsuit against the home, and the employees caught on camera were criminally charged for their part. The employees in this case have a defense attorney who believes their actions were misinterpreted, but as a Philadelphia injury lawyer, I suspect the videos will speak for themselves when it’s time to go before a jury. But more importantly, I hope the regulatory action taken against this home results in long-term improvements in patient safety.
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A major issue for Pennsylvania nursing home lawyers like me is the ability to sue the nursing home’s parent company as well as the home itself and individual employees. Many Pennsylvania nursing home abuse cases involve issues of understaffing or under-training, or negligent hiring, all of which can stem from poor decisions by the nursing home company. In Scampone v. Highland Park Care Center LLC, the estate of Madeline Scampone made these kinds of allegations against Highland Park Care Center and Grane Healthcare, alleging they had been directly negligent as well as indirectly negligent through the actions of their employees. Highland Park was the Pittsburgh-area nursing home where Scampone died; Grane was the management services company for Highland Park. The trial court granted a nonsuit for Grane, finding insufficient evidence of its liability, but the appeals court reversed and the Supreme Court upheld that.

Scampone lived at Highland Park from 1998 until her death in 2004, undergoing treatment for dementia, high blood pressure, lung disease and osteoporosis. Between June 2002 and January 2004, she was admitted to the hospital five times for urinary tract infections. During the final hospitalization, she was also admitted for malnutrition, dehydration, bedsores and an acute myocardial infarction. She died in early February. Her son, acting on behalf of her estate, later alleged in the lawsuit that Highland Park and Grane themselves were negligent, as well as responsible for the negligence of their employees. The trial included testimony from former employees that they lacked the time to follow care orders for Scampone or ensure that she had adequate food, water, medicine and activity; witnesses said staff members failed to follow doctors’ orders.

At the end of this testimony, Grane moved for a nonsuit and received it; Highland Park also received a nonsuit on punitive damages. However, the Superior Court reversed, finding sufficient evidence to support direct and vicarious liability for Grane and punitives for Highland Park. Both corporate entities appealed to the Pennsylvania Supreme Court.

That court upheld the lower court, but with different reasoning, finding that a resident like Scampone may have a valid claim for corporate negligence against the nursing home and related entities. It rejected arguments that nursing home companies cannot be liable for direct negligence because they work through their employees and officers, saying it had recognized a direct duty in the past and that vicarious liability is an insufficient substitute. Nor did the high court believe the nursing home’s argument that its own caselaw limited corporate direct liability to hospitals. The proper question in this case, the court said, was whether evidence showed the kind of relationship between Scampone and the defendants to give rise to a duty of care. Because the trial court did not make its decision on that basis, the Supreme Court said, the case must be remanded to make that determination and conduct any resulting trial.

As a Philadelphia injury lawyer, I am very pleased to see the state’s highest court reject arguments that would have exempted nursing homes from liability in Pennsylvania. Though the court made its decision according to its caselaw rather than what it perceived as good public policy, I believe it’s good public policy to retain nursing home companies’ accountability for wrongdoing. Nursing home companies don’t like to be sued, so if they know a suit is a strong possibility, they’re more likely to prevent any unsafe behavior. This may be the wrong reason to do the right thing, but the end result will be better protection for the elderly and disabled people in Pennsylvania nursing homes. As a Philadelphia medical malpractice lawyer, I believe these vulnerable patients are owed the strongest regulatory scheme we can devise.
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