Jonathan Rosenfeld's Nursing Homes Abuse Blog : Jonathan Rosenfeld's Nursing Homes Abuse Blog | Lawyer & Attorney : Strellis & Field Law Firm | Bed Sores, Senior Neglect, Elder Abuse, Sexual Abuse: Chicago, Illinois

The $1.2 million judgment  North Carolina Superior Court Judge, James Ammons handed down in a 2006 negligence trial will literally amount to nothing after the owners of the Countryside Villa run-for-cover under North Carolina's bankruptcy laws.

The large verdict against the assisted living facility was awarded to Joe Cooper, a Marine Corps Veteran, who suffered a concussion, respiratory failure that required a breathing tube and the loss of several teeth in a incident that occurred at the facility in 2003.  In addition to the facilities responsibility for Mr. Cooper's injuries related to the specific episode, Judge Ammons also concluded that Countryside Villa's pattern of 'egregiously wrongful acts' further resulted in the aggravation of Mr. Coopers diabetes and other medical conditions.

North Carolina, like the majority of states, does not require the owners of nursing homes and assisted living facilities to carry liability insurance.  In this case, and other similar cases, the judgment may attach to the owners of the facility individually, but the enforcement of the judgment remains difficult if-- if not downright impossible-- when the owner deliberately shields his or her personal assets by utilizing bankruptcy laws in their favor.

According to the owners bankruptcy petition, they were barely able to squeeze out a living with an annual income of $330,706 as their expenses ate into the majority of their take.  According to Mr. Cooper's daughter, the doors to this assisted living facility remain open.

As a lawyer who represents people injured in long-term care facilities, I am continually frustrated by the lack of accountability on the part of the owners and operators.  What continually impresses me is the sheer greed of many of these people.  Rather than make the necessary improvements to their facilities and purchasing adequate insurance coverage to protect their patients, they make a conscious decision to squeeze every last penny of profit out of their facilities.  Given the lack of civil enforcement, maybe its time to impose criminal penalties against operators who willfully endanger their patients?

Read more about this North Carolina assisted living facility here.

Related:

Who Benefits From Damage Caps In Nursing Home Lawsuits?

Appellate Court Orders Retrial In Nursing Home Negligence Case With $29.8M In Punitive Damages

Juries Sending A Message To Nursing Homes

Support Mandatory Nursing Home Insurance

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It never fails to amaze me.  Frequently, when I tell people about some of the cases I work on involving bed sores, I only to get a 'so what?' reaction from them.  Are the people who surround me heartless?  Maybe some of them (just joking, honey)?  Nonetheless, the reality is that most people have no idea what a bed sore truly is or the catastrophic consequences that my arise after a person develops them.

When people actually see the gruesome photos of rotting flesh on a person's backside hear about the ongoing medical procedures that are necessary to heal the wound, they begin to understand the real impact of this medical condition.

Along these lines, an obviously compassionate jury in New York awarded the family of a man who succumbed to infection following the development of bed sores almost $19 million.  The New York Post reported that the Brooklyn jury's award was comprised of $3.75 for the man's pain and suffering and a hefty $15 million in punitive damages.

According to the man's daughter's Margaret Whitehurst, the man rapidly declined during his nine month admission to Brooklyn Queens Nursing Home.  "He walked in on two legs and a cane.  He was 237 pounds.  When we got him back, he was 148 pounds and had holes all over his body."

In addition to hearing testimony regarding severe bed sores (also called: decubitus ulcers, pressure ulcers or pressure sores), the jury also heard from an expert witness who testified about how the nursing home altered the man's medical records to make it appear as though he entered the facility with bed sores.

Not having any firsthand knowledge of whether the nursing home made any offer to settle the case prior to trial, I can only assume the offer was insignificant.  I'll bet this facility is now re-thinking its decision to avoid responsibility for the death of this patient.

Read more about this nursing home lawsuit here.

Related:

Lawsuit Claims That Nursing Home's Negligence Resulted In Patient's Decubitus Ulcers

Lawsuit Alleges: One Week In The Nursing Home Results In Significant Deterioration Of Pressure Sores & Sepsis

Nursing Home Negligence Lawsuit Claims New York Facility Allowed Advanced Bed Sore To Develop In Rehab Patient

Big Verdicts Against Nursing Homes

What should I do if my family member develops bed sores during an admission to a nursing home?

Resource:

Nursing Home Injury Laws

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The Colorado Supreme Court handed down a decision in the matter of Lujan v. Life Care Centers of America that invalidates nursing home arbitration agreements entered into by a healthcare proxy. The Colorado Court  held that the power to make medical decisions is different from the ability to consent settle disputes via a private system-- as in done in nursing home cases with mandatory arbitration agreements.

In Lujan, Estella Lujan's son admitted her to a Life Care Center in Colorado and signed off on an arbitration agreement along with other admission paperwork.  Three days after Ms. Lujan's admission to Life Care Center, she died.  

Ms. Lujan's family filed a wrongful death lawsuit against the facility claiming that her death was due to the facilities negligent care.  After, a lawsuit was filed, Life Care Centers filed a motion to dismiss, claiming that the lawsuit should be dismissed due to the fact an arbitration agreement was in place.

By invalidating this mandatory arbitration agreement, this wrongful death lawsuit will be able to proceed though the litigation process and eventually be heard before a jury.

Nursing Home Arbitration Clauses

An arbitration clause takes the decision of how much money--- if any -- an injured party is receive out of the hands of a jury. In an arbitration setting, one person (who is frequently pre-selected by a nursing home) determines the damages to be awarded to an individual or family. In addition, many arbitration clauses specifically limit the amount an arbitrator may award to an injured party.

Related Nursing Homes Abuse Blog Entries:

Another State Invalidates Nursing Home Arbitration Agreements

Landmark Nursing Home Arbitration Award May Cause Facilities To Re-Evaluate Patient Care

Michigan Court Strikes Nursing Home 'Arbitration Clause' And Allows Wrongful Death Case To Proceed In Court

Are Trials Really That Important?

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On October 16th, the Nebraska Supreme Court ruled that an arbitration agreement between a nursing home and one of its residents was invalid because the resident’s son did not have the authority to sign a voluntary arbitration agreement on her behalf. 

Frank Koricic lived with his elderly mother, Manda Baker, and assisted her in her activities of daily living.  Ms. Baker was originally from Croatia and had limited ability to read, speak, or understand English.  Because of a decline in health, Ms. Baker was admitted to the Beverly Hallmark nursing home (now doing business as Beverly Enterprises) in Omaha, Nebraska. 

Upon admission, her son, Frank, signed several documents on her behalf, including an optional arbitration agreement (“Resident and Facility Arbitration Agreement”).  This arbitration agreement was not a condition of admission and provided that all claims or disputes arising out of any services or health care provided by the nursing home facility would be resolved exclusively by binding arbitration. 

In 2007, Ms. Baker allegedly sustained injuries as a result of nursing home negligence while in residence at the Beverly Hallmark.  Ms. Baker later died in September 2007.  Frank, Manda’s next of kin and trustee of her estate, filed suit against Beverly Enterprises, alleging negligence, breach of contract, and breach of fiduciary duty. 

Beverly Enterprises moved to dismiss the case and compel arbitration under the arbitration agreement that Frank had signed at the time of his mother’s admission.  Frank argued that the facility could not enforce the agreement because he, not his mother, had signed the arbitration agreement.  The district court ruled that that the arbitration agreement was valid and enforceable against Ms. Baker’s estate because she had authorized her son to sign medical authorizations for her.   

The Supreme Court reversed and remanded the decision of the district court, concluding that Ms. Baker’s son did not have authority to sign the arbitration agreement because it was not a condition of admission.  Frank had actual authority as his mother’s agent to sign medical documents for her.  Frank also had actual authority to sign the paperwork required for her admission to the nursing home facility. 

However, the arbitration agreement was optional and not required for Ms. Baker to reside at the facility.  Therefore, Frank did not have actual authority to sign the arbitration agreement. 

The Nebraska Supreme Court also determined that Frank did not have apparent authority to sign the arbitration agreement because there was no evidence that Ms. Baker knew Frank would be asked to sign an arbitration agreement, or that she indicated to any staff members that she authorized Frank to sign such an agreement, or that she later ratified the agreement. 

Furthermore, a reasonable person should not have expected an arbitration agreement to be included in the nursing home’s admission documents.  Thus, the nursing home facility was not justified in relying on Ms. Baker’s authorization of her son to sign admission papers as authority to bind her to an arbitration agreement.  The Nebraska Supreme Court reversed the trial court’s order to dismiss Frank Koricic’s complain and remanded the case for further proceedings.   

This decision could affect the validity of optional arbitration agreements where surrogates sign nursing home admission materials, depending on the extent of the surrogate’s authority to sign documents on the resident’s behalf. 

Thanks to Heather Keil, J.D. for her assistance with this article.

Sources:

Frank Koricic v. Beverly Enterprises, Nebraska Supreme Court, 2009

Related Nursing Homes Abuse Blog Entries:

Landmark Nursing Home Arbitration Award May Cause Facilities To Re-Evaluate Patient Care

AARP Joins Fight To Preserve Right To Jury Trial

Should You Give Up Your Right To Trial?

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A nursing home negligence lawsuit has been filed against Brookdale Senior Living Center for failing to protect its patients.   Janice Maier's family brought the lawsuit against Brookdale after she was physically abused by an intruder to the Texas nursing home. 

A police investigation concluded that 25-year-old Daniel Villarreal pushed the back door of the nursing home open and entered Ms. Maier's room and began choking her.  Mr. Villarreal remains in police custody and has been charged with Injury to an Elderly Person, a 1st degree felony.

Ms. Maier is currently in intensive care at University Hospital.  Read more about this brutal attack of a nursing home patient here.

Brookdale Senior Living 

Brookdale is the nation’s largest owner and operator of senior living communities throughout the United States. Currently, Brookdale operates more than 548 senior living and retirement communities across the nation.  More than 50,000 seniors depend on Brookdale for their daily living needs.

Related:

Centenarian Murdered At Nursing Home With Troubled Past

Nursing Home Staff Does Nothing To Stop Known Molester From Assaulting Disabled Woman

Elder Abuse Is Widespread & Under-Reported

No Remorse From Admitted Elder Abuser

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The family of Charles Bradley has flied a lawsuit against Everett Care & Rehabilitation and the parent company Sunbridge Healthcare Corp. for failing to take any action when the facility became aware that the skin around Mr. Bradley's penis was 'breaking down'.  The lawsuit further alleges the that facility's failure to provide medical attention resulted in the advancement of penile cancer that contributed to Mr. Bradley's death.

According to the allegations in the lawsuit, staff at Everett Care documented the skin around Mr. Bradley's penis was 'breaking down' while changing his diaper in November, 2007.  Despite the staff's awareness of the skin issues, neither Mr. Bradley's physician or family was advised of his deteriorating medical condition.

Five months later and by the time Mr. Bradley's genitals had essentially 'broken down', the staff at Everett sent Mr. Bradley to Providence Medical Center where he was treated for a variety ailments including undiagnosed penile cancer.

An investigation into the matter by officials with the Department of Social and Health revealed that the nursing home violated federal law by failing to contact the physician or family of the new medical condition.

Read more about this wrongful death lawsuit filed against a Washington nursing home here. 

Despite the seemingly clear violations in terms of failing to timely notify the patient's physician and family of a changing medical condition, I suspect the family may have a difficult time pursuing theory of recovery based on the 'failure to diagnose'.

A lawsuit premised on the failure to diagnose cancer, requires the injured party (or estate of the deceased person) prove that the failure to diagnose and treat the cancer in a timely manner resulted in increased harm or death.  It generally presumed that patients' chances of a successful recovery improve if the cancer is diagnosed as early as possible.  

A common (and fairly effective) defense to a failure to diagnose case is that even with early diagnosis, many forms of cancer have fairly low survival rates-- and the delay in diagnosis is consequently irrelevant.

Nevertheless, in a failure to diagnose cancer case, the plaintiff has the burden of proving the following:

• That there was a duty to timely diagnose the cancer;
• The breach of that duty by the physician;
• Injury  or death to the patient; and
• That the injury or death was causally related to the physician's breach (i.e., a more advanced stage of cancer was reached than should have been).

Related:

Settlement For Neglected MS Patient With Bedsores

Failure To Clean Trach Tube Leads To Lawsuit

Are nursing home patients protected under federal law?

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Deciding whether to have an autopsy performed on a loved one is indeed a very personal decision for a family to make following a death.  An autopsy can help a family get answers to not only the cause of death, and in the case of potential nursing home negligence, what-- if any, errors may have been made by a medical facility that may have caused the death.

After reading this news article about how a disabled nursing home patient may have 'choked to death' on his lunch I was reminded by how valuable autopsies can be where a death may occur in a nursing home or hospital setting that is insulated from the public.

What is an autopsy?

An autopsy is a detailed medical examination of the person's body and organs following death to establish the specific cause.  Autopsies are performed by a physician, a pathologist, who is trained to evaluate results from physical examinations and laboratory results from tissue and blood samples to determine the cause of death.

Once the examination and laboratory results have been evaluated, an autopsy report is rendered. The report notes the physical findings and states a cause(s) of death.  Because the report is rendered from an impartial author, it can be particularly useful in a litigation setting.  Similarly, just a the report may be useful in case against a nursing home or hospital, results may also absolve the facility of responsibility if the results do not substantiate poor care. 

In order to secure the most accurate results, most pathologists suggest performing an autopsy 24 to 48-hours after the death of a person.  Depending on where the death occurred  and the circumstances surrounding it, the autopsy may be performed by the state medical examiner or by a physician at a private hospital.

Is an autopsy called for in cases where nursing home neglect may have occurred?

In my opinion, particularly in cases involving the elderly, autopsies can be extremely helpful in rebutting arguments made by facilities who may argue that a death was the result of 'old age' or due to a 'variety complicated medical factors'.

Autopsies can be particularly helpful in the following wrongful death matters:

• Bed sores (also referred to as: decubitus ulcers, pressure sores or pressure ulcers)
• Malnutrition
• Dehydration
• Medication errors / overdoses
• Medical errors
• Falls with accompanying subdural hematoma

If you wish to have an autopsy performed on a loved one, you should contact your coroner or local hospital to get information about facilities that can perform one at your request.

Related Nursing Homes Abuse Blog Entries

Autopsy Confirms Man Was Murdered In Chicago Nursing Home

Medical Examiner Rules Tennessee Nursing Home Death A Homicide

Grandson Alleges Poor Nursing Care Results In Bed Sores "You Could Stick Your Fist" In

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As nursing home lawyers, one of the situations we commonly encounter involve relatively healthy people who enter nursing homes for rehabilitation due to an orthopedic or cardiac conditions--- only to encounter more problems during their admission to a facility.  In some of these situations, nursing home staff wrongfully assume that many of the prevention programs used for more disabled patients are not necessary.

What makes these type of cases particularly sad is to hear a family member describe the rapid decline in a loved ones physical and psychological condition within a short period of time.  In rehab admissions, no one ever suspects that ever suspects that their family member is potentially at risk for injury or illness due to the brief admission.

The New York Daily News reported on one of these situations where serious complications developed with a healthy patient who was admitted to a New York nursing home during a rehab stint.  In 2005 Vera Henry was admitted to Sutton Park Center For Nursing and Rehabilitation for therapy for her arm that she injured in a fall.  The admission was to last no longer than one month.

Apparently the Sutton Park staff failed to provide Ms. Henry with the therapy she was intended to receive.  During her stay Ms. Henry developed an advanced bed sore that ultimately became infected and caused her death.

Not only did the facility fail to provide the physical therapy and bed sore prevention programs, the facility failed to alert Ms. Henry's family or her physicians of the development of the wound.  The bed sore was not discovered until Ms. Henry's daughter, Patricia Henry, went to change her mother's clothes and noticed that an advanced bed sore had developed on her mother's tailbone.

"You could put your whole hand down in her back ," said Patricia Henry.  "You could see the bones and spinal cord.  It was like raw meat.  Mommy screamed until she could scream no more," she added.

Ms. Henry's family has filed a wrongful death lawsuit against Sutton Park Center for Nursing and Rehabilitation and its sister facility South Shore Medical Center.  The case is pending in Bronx Supreme Court.

Read more about this lawsuit against a New York nursing home here.

Related Nursing Homes Abuse Blog Entries

Nursing Home Owner Leave Resident On Bedpan for 24-Hours, Now Faces Jail Time

"The Nursing Home Says My Dad's Bedsores Were Unpreventable..."

In For Rehab. Out With Bedsores.

A Graphic Example Of Nursing Home Negligence: Amputation Of A Leg Due To Untreated Bed Sores

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One of the trends in nursing home litigation has been the inclusion of mandatory arbitration agreements in admission paperwork.  By signing an arbitration agreement (usually unknowingly), nursing home patients may surrender their opportunity to recover money for an injury via a traditional jury trial.  Alternatively, injured parties must present their grievances before an individual or group of arbitrators.    

The arbitration agreements set forth the terms of the arbitration and how many arbitrators will hear the matter.  Generally, in the case of a single arbitrator, the individual is selected by the nursing home.  In the case of an arbitration panel (usually three people) both the nursing home and the injured party may choose an arbitrator, with a third arbitrator selected by the appointed arbitrators.

Because the ability to award money for an injury or wrongful death is taken out of the hands of jurors and into the power of individuals who may be influenced by industry power-- mandatory arbitrations are usually vigorously fought by injured parties. 

Until recently, it was universally believed that an injured person stood little chance of receiving a fair recovery in an arbitration setting because many of the arbitrators had allegiance to large nursing home operators and other appointed arbitrators may be unfamiliar with issues that frequently arise in nursing home injury matters.

That was then, this is now.

Recently, a three-person arbitration panel recently awarded over $2.7 million in damages to the family of Voncil Sherrod who died in March, 2005 from complications related to gangrene and advanced pressure sores that developed during her admission to High Point Health Care and Rehabilitation Center in Tennessee.

In addition to High Point, damages were also sought from Mariner Health Care (the parent company), Mariner Health Care Management (the management company) and National Heritage Realty Company (the licensee).  Ms. Sherrod's estate claimed that all entities were guilty of: negligence, violation of the Tennessee Adult Protection Act (TAPA) and medical malpractice.

In making this substantial award, the arbitration panel obviously sent a message to the various nursing entities that they can no longer assume that taking a nursing home negligence matter away from a jury will protect them from liability.  Also, notable was the large award for punitive damages against the facilities especially in light of the more modest awards for other claims.

The arbitration award is comprised of the following:

• $250,000 for TAPA violations
• $400,000 in attorneys fees for intentional, malicious or fraudulent misconduct resulting in TAPA violations
• $626,396.32 for medical malpractice 
• $1,500,000 punitive damages

Related Nursing Homes Abuse Blog Entries:

A Legal Victory For Nursing Home Residents. State Laws Can Supersede Federal Arbitration Act

AARP Joins Fight To Preserve Right To Jury Trial

Are Trials Really That Important? 

A Call To Abolish Arbitration Clauses 

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Yesterday, we discussed the nursing-home-name-game, how large nursing home chains attempt to shield themselves from liability by creating a complex array of subsidiary companies and messy corporate structures. 

Today, we are seeing the fall-out created by this complicated game of corporate re-organization-- how despite that fact that a large corporation makes decisions with respect to operation of a facility, and even derives profits from the facility, it can evade responsibility by re-arranging its corporate structure.

In 2007, a New Mexico jury rendered a large verdict ($53 million) against ManorCare after they heard how Barbara Boxer, a patient at a ManorCare subsidiary was ignored by staff as she suffered from gastrointestinal bleeding.  The trial revealed that not only did employees at the nursing home fail to administer any treatment, but they attempted to cover up the situation by removing the bloody sheets-- with the tell tale signs that they had watched a lady bleed to death-- before notifying the ladies family.

Despite the fact that Boxer was a patient at a ManorCare subsidiary, a nursing home negligence lawsuit was brought against the parent company-- ManorCare exclusively.

In overturning the trial court verdict, the Appellate Court reasoned that the court erred in finding that ManorCare was the 'employer' of the nursing home's staff.  The large damage award ($3.2 million compensatory damages and $50 million in punitive damages) was never even addressed by Appellate Court in its decision.

While we can simply say that the New Mexico Appellate Court made a bad ruling with respect to the rights of injured nursing home patients, this decision will only encourage nursing home giants to rearrange their companies into smaller subsidiaries-- only to protect the parent company from liability.

The family of Mrs. Boxer intends on bringing this case before the New Mexico Supreme Court.

Read more about this important nursing home decision here.

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A nursing home negligence lawsuit has been filed against the Village at Luther Square Nursing Home after Edward O'Neil died from injuries allegedly sustained due to a fall from his wheelchair.  According the the facts alleged in the lawsuit, staff at Village at Luther Square left O'Neil unattended in his wheelchair for several hours on July 5, 2008.  During the unsupervised time, Mr. O'Neil's wheelchair tipped over onto him causing him to suffer a brain bleed and fractured neck.

The lawsuit brought by Mr. O'Neil's estate, claims that staff at the nursing home failed to: provide visual checks, utilize appropriate restraints and implement 'anti-tipping' precautions on the wheelchair.  Mr. O'Neil died two days after the incident from 'natural causes'. 

Mr. O'Neil's death accentuates many problems at Luther Square that were recorded by nursing home inspectors.  Following the death of Mr. O'Neil and another resident who died from a similar fall-related incident, the Pennsylvania Department of Health downgraded Luther Villages nursing home license.  Similarly, in June, 2008 state inspectors fined the Erie, PA nursing home $7,000 after finding 21 violations relating to patient care and building conditions.

This case is pending Erie County Court.  Read more about this Pennsylvania nursing home lawsuit here.

The Importance Of Nursing Home Inspections

If anything, this case highlights the importance of getting inspectors (also referred to as 'surveyors') from your state's department of health involved in the investigation process following a incident involving injury or death.  Despite a large workload and a frequently inhospitable work environment, department of health employees provide a vital service for injured residents and their families.

Nursing home inspectors have access to documents and witnesses that would frequently be unavailable outside of a litigation setting.  Moreover, their access in the days, weeks and months following an incident or period of neglect helps assure important facts are documented in a timely manor. 

While the reports generated by nursing home inspections are usually considered to be inadmissible in court, the specific facts can be crucial to the success of nursing home lawsuits.  Perhaps, equally beneficial to both the resident and the the facility, the findings in the report may reveal the facilities appropriate actions relating to an incident.  In these circumstances, the findings may prevent a disappointing outcome for an injured party years down the road.

Related Nursing Homes Abuse Blog Entries

2 Residents Fall From Wheelchairs With 2 Days At Nursing Home

Fall Leaves Veteran With Broken Neck In Illinois Nursing Home

Big Verdicts Against Nursing Homes

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A nursing home negligence lawsuit has been filed against Highland Health Care Center and its parent company  Covenant Care Midwest for their negligent care of a patient.  The lawsuit alleges that the patient was admitted to Highland Health Care Center on November 5, 2008 for physical therapy, following a total knee replacement surgery.

During the course of the prescribed physical therapy, the patient developed decubitus ulcers on his back and heel.  The decubitus ulcers became so severe that, surgery was required to help heal the wounds.

The nursing home negligence lawsuit claims Highland Health Care Center made numerous mistakes related to the patient's care and subsequent decubitus uclers, including:

• Failing to notify physicians of the patient's change in medical condition
• Failing to administer treatments prescribed by the physician
• Failing to make observations related to the patient's change in medical condition
• Failing to implement a pressure sore prevention program

The lawsuit is pending in Madison County Circuit Court.  Read more about this nursing home lawsuit here.

In with one problem, out with another...

While I certainly have no way of verifying the facts surrounding this nursing home lawsuit, the facts sound all too familiar.  In cases were nursing homes, hospitals rehabilitation facilities are hyper focused on a specific task, such as physical therapy, other patient needs can often fall to the wayside.  

Nonetheless, skilled nursing facilities have a non-delegable duty to take all feasible measure to prevent development of decubitus ulcers.  In this case, I have a hard time believing that if the facility was indeed performing the specified physical therapy on this patient.  If so, how did the decubitus ulcers develop?

Covenant Care

Covenant Care operates 50 facilities (skilled nursing, assisted living and select therapies) in California, Illinois, Indiana, Iowa, Nevada, Nebraska and Ohio. 

Related:

If a lawsuit or claim is filed against a facility where a person developed bed sores, what type of damages is the person entitled to?

What steps should I take before meeting with an attorney to discuss a case involving bed sores?

How long does it take for a lawsuit involving development of bed sores at a medical facility to be resolved?

What type of legal recourse does a person with bed sores have?

Resource:

Nursing Home Injury Laws

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A nursing home negligence lawsuit was recently filed against Central Baptist Village, a Chicago-land assisted living facility, for the alleged mistreatment of a disabled husband and wife who were both residents in the facility..  The lawsuit, brought by the couples guardian, claims employees at Central Baptist Village physically assaulted the wife on several occasions between December, 2008 and February, 2009.  Additionally, the lawsuit claims the staff administered the wife's medication to the husband from October, 2008 through February, 2009 resulting in over-medication.  The lawsuit against Central Baptist Village seeks more than $200,000 in damages.

Central Baptist Village is a multi-need facility located at 4747 N. Cranfield Avenue in Norridge, IL. The facility has been providing care for more than 100 year and operates as a not-for-profit nursing facility. 

Read more about this lawsuit against this Chicago nursing home here.

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In Grammer v. John J. Kane Regional Centers, the Third U.S. Circuit Court of Appeals ruled that nursing home residents can bring civil rights actions under 42 U.S.C. Section 1983.  This new cause of action allows residents to challenge the quality of treatment received by bringing a civil rights claim.   

Grammer v. John J. Kane Regional Centers further ensures that nursing home residents receive quality care.  This is very important because the elderly are particularly susceptible to abuse and neglect in many state and county run nursing home facilities.  

As an attorney who frequently encounters situations involving mistreatment of people in nursing homes, I would be happy to discuss the prospective implications of this case with you or your family. (888) 424-5757

Special thanks to Heather Keil, J.D. for her research regarding this important development in nursing home case law.

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A California jury awarded $1.3 million in damages to a resident who fell at Leisure Palms, an elder-care facility.  In October, 2006 Elaine Stinson was admitted to Leisure Palms by her husband so the facility could provide care to Elaine-- who was diagnosed with Alzheimer's and was recovering from hip surgery.

On December 31, 2006, Elaine fell at Leisure Palms and sustained a closed-head injury, broken ribs, and a punctured lung.  Despite the injuries, staff at the facility placed her in bed--but never notified her physician or husband.  On January 1st, Elaine's family found her non-responsive and took her to a hospital where she underwent surgery for fall-related injuries.  Elaine spent 10 months recovering at a rehabilitation facility.

According to the woman's lawyer, staffing deficiencies were the primary she sustained the fall.  "There was an inability to monitor, care for or even understand the needs of the elderly that they take on."

Leisure Palms will appeal the verdict.  Read more about this California jury verdict in favor of an injury elder here.

Nursing Home Staffing

OBRA regulations, essentially the standard of care for nursing home residents, require nursing homes to, 'provide the necessary care and services for each resident to attain or maintain the highest practicable level of physical, mental, and psychological well-being'.  This standard is set forth F-Tag 309.  Perhaps the most crucial element in allowing residents to achieving their maximum potential is providing a well trained staff that is capable to tending to resident needs and ensuring their safety.

Nursing Homes Abuse Blog Posts

Make Sure There Are Enough Nurses

A Recipe For Danger: Nursing Shortage Could Reach 1M By 2020

Nursing Home Sued After Resident Fractures Both Hips In Separate Falls

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A jury awarded $750,000 to a disabled man who was a resident at Cote De Neige Home for Adults after he was sexually assaulted by a worker at the facility.  The lawsuit was brought against the assisted living facility for their failure to conduct an adequate pre-hiring background search before hiring a certified nursing assistant. 

Junious Boyd Batten, the CNA who was allegedly involved in the sexual assault, currently faces five counts of forcible sodomy, three counts of carnal knowledge and one count of abuse and neglect for incidents that occurred between 2006 and mid-2007 while he was employed by Cote De Neige. 

According to claims made in the lawsuit against Cote De Neige, Batten was a known criminal--both before and during his employment at Cote De Neige.  The lawsuit claims Batten was charged with 13 criminal offenses-- including four criminal convictions (public intoxication, two assault and battery charges and one contempt of court charge) during the course of his employment as a CNA.

Too often, in situations such as this, facilities are let off the hook because they claim they lack knowledge about an employees violent tendencies.  While this case may be extreme-- in terms of the extensive list of criminal charges Batten faced before and during the course of his employment-- this verdict should serve as a reminder to all facilities that they must do an pre-employment job screening and continually supervise all employees.

Incidentally, this verdict includes $500,000 in compensatory damages and $250,000 in punitive damages.  Consequently, even if this facility files for bankruptcy the owner of the facility will remain responsible for payment of the punitive aspect of this case.

Read more about this case involving a judgment against an assisted living facility for failing to conduct an adequate pre-employment screening of an employee here.

Nursing Homes Abuse Blog Related Posts

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Nurse Charged With Sexually Abusing Two Nursing Home Residents

"Nursing Homes Abuse Blog" Quoted In Article On Nursing Home Abuse

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A nursing home negligence lawsuit has been filed against Stearns Nursing and Rehabilitation Center after a 95-year-old resident fell on multiple occasions and suffered hip fractures. The lawsuit alleges that the facility failed to implement fall precautions despite the fact the facility knew the resident suffered from Alzheimer's, was generally confused and considered to be a 'high fall risk'.

The lawsuit claims, Stearns suffered multiple falls resulting in injuries during her admission from May 25th through July 7, 2007. In particular, the lawsuit alleges the following specific incidents:

• On May 27, the resident wandered the hallways, unattended, and fell fracturing her left hip.
• On June 6, while left unattended in a wheelchair and with a shut-off personal alarm, she fell out of the wheelchair.
• On June 15, the resident pulled herself out of her wheelchair and roamed the hallways un-assisted and fell, fracturing her right hip

The lawsuit is pending in Madison County Circuit Court.  Read more about this lawsuit against Stearns Nursing and Rehabilitation Center here.

Nursing Home Falls

More than 1,800 people die each year in nursing home falls.  All health care professionals in the nursing home setting must work together to help encourage nursing home safety.  Nursing homes are required to conduct a fall-risk assessment for every resident to determine who may be at risk for falls.  This puts the staff on notice as to who may need special attention and sets forth what accommodations should be in place for each resident.

Additionally, staff should always be on the lookout for residents who may require assistance getting about.  If residents have a history of falls, the facility should consider using alarms on chairs or beds to notify the staff when the person attempts to walk on their own.

Falls in nursing homes occur for a variety of reasons.  Some of the more common causes for falls  are:

• Muscle weakness and walking or gait problems
• Hazards in the nursing home- wet floors, poor lighting, improper be heights, improperly maintained wheelchairs, equipment left out of place
• Medications-  Drugs that effect the central nervous system, such as sedatives and anti-anxiety drugs (psychoactive drugs)
• Improperly fitting shoes or incorrect walking aids
• Frequent use of restraints
• Inadequate staffing levels that fail to provide sufficient assistance to residents

If your loved one sustained a fall during a nursing home admission, our nursing home litigation team will provide a free case analysis to determine if a lawsuit against the facility is warranted.  Why not put our experience advocating on behalf of the elderly to work for you today?

Related Nursing Homes Abuse Blog Entries

How Many Falls Is Enough To Impose Responsibility On Nursing Home?

Nursing Home Cited For Mistreatment Of Resident Following Investigation Of Resident's Fractured Neck

Falls Amongst The Elderly Can't Be Ignored

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The legal guardians of a a comatose nursing home resident who was molested by a licensed practical nurse at a Virginia facility have filed a nursing home negligence lawsuit against the facility in Norfolk Circuit Court.  The lawsuit alleges officials at Chesapeake Health and Rehabilitation should have known the nurse, Mark S. Albright, was prone to to such behavior.  The lawsuit seeks $29 million in damages.

Police say another nursing home employee reported that Albright put his mouth on the victim's breast. In November, Albright pleaded guilty to aggravated sexual battery.  Currently, he is serving six months in prison.  

Family Sues After Comatose Nursing Home Patient Sexually Assaulted By Nurse, FOXNews.com May 28, 2009

How strong is the case against the facility?

Without having access to the criminal investigative file, it is difficult to assess the strength of the case against the facility.  In order to recover damages for abuse such as this, it is essential to show the facility knew or should have known of Nurse Albright's criminal tendencies.  Absent, this knowledge or the facilities failure to do an adequate pre-employment screening of Albright, the case against the facility could be difficult.

About Chesapeake Health and Rehabilitation

Chesapeake Health and Rehabilitation Center is a 240-bed facility in Chesapeake, Virginia. According to government officials, the facility was worthy of just one out of five stars in a vital 'nursing home staffing' category.  On a daily basis, residents at Chesapeake received less time with nurses than similarly situated nursing home residents in Virginia as well as a nationally.  According to the Medicare website:

• Residents received 1 hour, 16 minutes of time spent with a licensed nurse per day
• Registered nurses spent just 17 minutes per day with each resident
• CNA's spent just 1 hour, 49 minutes per resident- more than 30 minutes less than the national average

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A recent Illinois Appellate Court decision may prove to be a major roadblock for injured nursing home residents who wish to pursue their case against the facility in court.  In Fosler v. Midwest Care Center II, Inc., the Illinois Appellate Court upheld the validity of mandatory arbitration clause signed by an injured nursing home resident's daughter at the time of her admission-- specifically saying that the Federal Arbitration Act (FAA) trumps the Illinois Nursing Home Care Act.

This is a dramatic shift in the way Illinois Court's have interpreted Illinois law.  Previously, it was widely held in Illinois that arbitration agreements-- where a dispute related to negligent care would be resolved via an arbitrator as opposed to a jury trial-- were invalid.  According to Fosler, this is no longer the case.

Illinois like other states had adapted its own laws to protect nursing home residents.  In Illinois, the Nursing Home Care Act specifically nullifies any arbitration provision of the admission agreement, supporting an injured resident's right to a jury.  According to section 3--606 of the Nursing Home Care Act, "[a]ny waiver by a resident or his legal representative of the right to commence an action under Sections 3--601 through 3--607, whether oral or in writing, shall be null and void and without legal force or effect." 210 ILCS 45/3--606.  The Act emphatically states that a person injured due to nursing home negligence was entitled to a jury trial.

Due to the strong language of the Nursing Home Care Act, many Illinois nursing homes chose to remove arbitration clauses entirely from new admission paperwork as they were generally considered to be worthless.  This is no longer the case.  If this decision remains good law, mandatory arbitration clauses will become commonplace in Illinois nursing homes and the landscape of nursing home litigation in Illinois will be forever changed-- in my humble opinion for the worse.

Nursing Home Arbitration Clauses

An arbitration clause takes the decision of how much money--- if any -- an injured party is receive out of the hands of a jury.  In an arbitration setting, one person (who is frequently pre-selected by a nursing home) determines the damages to be awarded to an individual or family.  In addition, many arbitration clauses specifically limit the amount an arbitrator may award to an injured party.

Resource

Marie Fosler, by Janice Saxton, Attorney-in-Fact v. Midwest Care Center II, Inc., d/b/a Fair Oaks Rehabilitation and Health Care Center, Brenna Kolk, and Tonya Nielsen, 08--L--147, Ill.App. (2nd Dist)

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Not surprisingly an article supporting damage caps in nursing home lawsuits was written by nursing home administrator, Carrie Ermshar in the Tennesseean.com.  In her piece, Ermshar equates damages awarded to an injured person as a penalty against a nursing home.  "We must ask ourselves a tough question: At the end of a lawsuit, who is really being punished?" 

Now, before anyone accuses me of taking Ms. Ermshar's comments out of context, I suggest you read her entire piece.  Nonetheless, Ermshar's understanding of the reasoning behind nursing home litigation is off-base.  Nursing home lawsuits are intended to compensate the injured party for both the tangible (past and future medical expenses) and intangible (pain and suffering, loss of normal life) damages sustained due to the negligence of others-- as opposed to punishing the alleged wrongdoer.  

In most jurisdictions, a plaintiff must get permission from the judge to seek punitive damages from a nursing home. Before a judge grants the ability to seek punitive damages, a plaintiff must demonstrate that the nursing home's behavior was so reckless that they should be able to ask a jury to award damages to punish the facility.  It is then up to a jury if punitive damages are indeed warranted and if so, how much.

Without citing any studies or facts, Ermshar implies that damage caps in nursing home lawsuits will improve patient care because nursing home owners will have more money to invest into patient care.  Ermshar implicitly claims that damage caps will lead to cost savings for nursing home owners because their liability insurance rates will decrease.

The reality is that few studies have analyzed the relationship between caps on damages in nursing home lawsuits vs. insurance premiums.  However, there have been a substantial number of studies with regard to damages in medical malpractice cases.  Overwhelmingly, the results demonstrate that damage caps do little other than arbitrarily restrict an injured, maimed or deceased person's estate of their rights.

Damage Caps Do Not Reduce Insurance Premiums

Like Ms. Ermshar, proponents of damage caps in a medical malpractice setting claim that limiting a plaintiff's recovery will will lead to lower insurance premiums for facilities.  The assumption made by Ermshar and her peers is that the savings will be passed along to the customers.  The reality is that damage caps do not result in reduced of insurance premiums.  Consequently, there is no rush of money pouring in to help provide additional care and treatment for nursing home residents in situations where an injured parties rights are limited by damage caps.

According to Medical Liability Monitor (October, 2005), malpractice premiums average 12.4% higher in states with caps on non-economic damages than in states without. In some states (Mississippi, Nevada, Ohio, Oklahoma and Texas), insurance premiums  were almost double compared with states that have no damage caps.

A similar study in California conducted by The Center For Justice & Democracy revealed that insurance rates increased 35% for physicians and 65% for hospitals months after the state legislature passed a cap on non-economic damages of $250,000. 

Yet another study on malpractice caps was conducted by researchers at Duke University concluded that the claims made by proponents of damage caps is unfounded.  The Duke study compared insurance premiums and pay-outs to plaintiffs both pre- and post- damage cap legislation in Illinois.

The researchers' results revealed that physicians' insurance premiums actually increased substantially after the 'tort reform' legislation was passed.  Similarly, the researchers concluded the Illinois damage caps had 'no significant  impact' on the the total payouts to plaintiffs.  Interestingly, the Duke team noticed no increase in high-risk specialties such as neurosurgery and obstetrics after the legislation was passed-- despite the claims by medical experts that such specialties could no longer afford to practice in an environment with no limits on damages.

Update On Damage Caps In Tennessee Nursing Homes

For the past several years, the nursing home industry has repeatedly attempted to restrict the rights of injured nursing residents by sponsoring damage-cap legislation in Tennessee. Under HB 2243, a nursing home resident injured due to poor care would be limited in their to a recovery based on a sliding scale that was dependent on the amount of care provided by the facility to each resident on a daily basis.  Translation: damages entitled to an injured nursing home resident could not exceed $300,000 in most situations.

Thankfully, the bill died a quiet death in subcommittee.

Read more about the proposed nursing home legislation here.

Related:

Nursing Home Injury Laws

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Ricky Hamilton, the husband of Kimberly Hamilton, has filed a nursing home negligence lawsuit against Kenwood Nursing Home and the facilities parent company, Extendicare in Madison Circuit Court.  The lawsuit alleges the nursing home deviated from acceptable standards of care and failed to maintain a safe environment.  The lawsuit made a 'jury demand' and seeks an award of medical expenses, attorney fees and punitive damages.

Kenwood Nursing Home is part of the Richmond Health and Rehabilitation Complex in Richmond, Kentucky.  The facility has has several smalling nursing homes on the property including Kenwood and Madison Manor.

Madison Manor has a well-documented history of problems.  In 2008, the facility received a Type-A citation from the Cabinet for Health and Family Services after officials obtained a copy of a video documenting abuse of a resident.  Following disclosure of the video, 9 staff members were fired and a new training program was implemented for the staff.

Nursing home ombudsman Kathy Gannoe, said her agency received 26 complaints regarding 14 Madison Manor residents in 2008.  After investigating each claim, Gannoe determined 80% of the charges were verified. 

Amazingly, the Kentucky nursing home had even more complaints in 2007.  In 2007, nursing home ombudsmen investigated 56 complaints relating to 26 residents. According to Gannoe, 96.5% of the complaints were verified and one-quarter of the complaints were referred to law enforcement. Read more about this nursing home negligence lawsuit here.

About Extendicare

Extendicare Homes Inc. is headquartered in Milwaukee, WI.  The company was recently named in a class action lawsuit for violating consumer-protection laws by advertising "quality standards above government regulations" that they failed to deliver. Extendicare is one of the largest nursing-home chains in North America. The company runs 268 facilities for up to 30,000 residents.  Nearly all of Extendicare's nursing facilities have higher-than-average scores for health deficiencies and safety violations.

Nursing Home Abuse Blog Entries On Extendicare

Videotape Reveals Abuse In Kentucky Nursing Home

Poor Nursing Home Care Subject Of Class Action Lawsuit Against National Nursing Home Chain, Extendicare

Failure To Clean Trach Tube Leads To Lawsuit

Web Resource

Department Of Health & Human Services, Civil Remedies Division, decision involving Richmond Health & Rehabilitation Complex

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Following an appeal by a nursing home operator based on an excessive verdict, an Appellate Court has ordered a re-trial of the punitive damage aspect of a nursing home negligence case.  The case was originally tried in Warren County Circuit court and a jury awarded $4.1 M in compensatory damages and $29.8 M in punitive damages.  

The nursing home negligence lawsuit was brought by the daughters of Cheatum Myers, an 88-year-old man who allegedly died prematurely while he was a resident at a nursing home owned by National Healthcare Corporation, a Murfreesboro-based nursing home operator.  The family's lawsuit involved separate counts for negligence, medical malpractice and wrongful death.  

National Healthcare Corporation has 60 days from the entry of the Appellate Court's decision to file a motion to reconsider with the Tennessee Supreme Court.  National Healthcare Corporation is the 11th largest nursing home operator in the United States and currently houses over 9,000 elderly residents.  Read more about this nursing home negligence lawsuit here.

Punitive Damages

Punitive damages are damages not awarded in order to compensate the plaintiff, but in order to punish or deter the defendant and similar persons from similar behavior that harmed the plaintiff (injured party).  In most jurisdictions, plaintiffs must get permission from the court to pursue a claim for punitive damages.  There is no set limit or absolutely impermissible ratio of punitive damages to compensatory damages, though punitive damages with outrageously high ratios have been reversed by appellate courts.

Related Nursing Homes Abuse Blog Posts

Juries Sending A Message To Nursing Homes

Big Verdicts Against Nursing Homes

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A wrongful death lawsuit has been filed against Asbury Place Nursing Home by the daughters of Alice Laverne Britton. The lawsuit claims that from the time Britton was admitted to the facility in 2005, she was repeatedly treated improperly by staff at the Tennessee nursing home.  Among the nursing home negligence allegations cited in the lawsuit:

• Malnourishment 
• Dehydration
• Unskilled nursing home workers dropped Britton resulting in a fractured femur that went untreated
• Decubitus ulcers (bedsores) that were left untreated until they became severe
• Failure to monitor medications that caused internal bleeding

The executive director for Asbury Inc., the nursing homes parent company, Teesa Brown, said the nursing home did provide appropriate care, and that they followed up with the family and the appropriate state agencies. She said at Asbury Place they are always concerned for the residents, their families, and the impact the loss of a loved one has on the family.

The family of this deceased nursing home resident is seeking $10 million in punitive damages and $3 million in compensatory damages.

This lawsuit was filed under the Tennessee Wrongful Death Statute in Blount County Circuit Court. According to the nursing home's web site, Asbury, Inc., is a regional network of not-for-profit retirement and long-term care communities, affiliated with the Holston Conference of the United Methodist Church.  Read more about this Tennessee nursing home lawsuit here.

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Following a trial and appeal, the family of Alice Limbrick has reached a settlement with the assisted-living facility where she was a resident.  In the lawsuit (Roy Limbrick et al v. Mariner Health Care, Inc.), the deceased woman's family claimed both the assisted living facility where she was a resident and a hospital where she underwent medical treatment, were negligent in allowing her to developed pressure sores that ultimately led to the amputation of her legs. 

Following the fall and resulting hip fracture at Green Acres Parkdale, Limbrick was admitted to Baptist Hospitals of Southeast Texas where she underwent medical treatment for her hip fracture.  It was during admission to the hospital, Limbrick developed pressure ulcers and blisters on her heels and left leg. 

Despite the pressure ulcers, Limbrick was discharged from the hospital and sent back to Green Acres for rehabilitation of her hip.  At Green Acres, the pressure ulcers on Limbrick's heels worsened, necessitating a re-admission to Baptist Hospital with a diagnosis of gangrene on both heels.  As a result of complications related to the pressure ulcers, both of Limbrick's legs were amputated below the knee. 

At trial the assisted living facility argued the family was partially responsible for their mothers medical condition because they did not sent her to an acute facility.  Additionally, the facility claimed the amputations were unpreventable as Limbrick suffered from a variety of debilitating medical conditions such as: a weakened immune system, diabetes, poor circulation, Alzheimer's and general old age.

Despite the assisted living facilities arguments, a jury recognized the the facilities negligence in failing to properly treat the pressure ulcers and awarded the family $80,000 for past mental anguish, $20,00 for past medical expenses and $300,000 for past disfigurement and impairment damages.  It is unknown what the actual settlement between the parties entered into during the appeal process.  The case against the hospital was resolved prior to trial. 

Cases involving elder neglect and abuse commonly involve multiple parties.  When proceeding in a claim against multiple parties it is important to put together a time-line to differentiate what facility was rendered care to the individual at the particular time.  It is also helpful to consult with an expert, such as doctor or nurse, to determine what the individuals condition was both at the time of admission and the time of discharge from the facility.

Read more about this lawsuit involving a Texas nursing home here.

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A Michigan Court has stricken an 'arbitration clause' from a pending wrongful death lawsuit against a Michigan nursing home.  In the case of High v. Capital Senior Living Properties, a nursing home resident's son filed a wrongful death lawsuit against the facility for failing to properly supervise his mother. Among the claims made in the lawsuit, the Plaintiff, Sidney High, claims the facility was negligent in allowing his mother (who had Alzheimer's) to wander from the facility and freeze to death. 

After filing the wrongful death lawsuit, Capital Senior Living filed a motion to dismiss and attempted to force the claims made in the lawsuit to proceed under arbitration.  The facility claimed they were entitled to have any claims made against them in a private, arbitration setting per the terms of their admission documents. 

In siding with son of the deceased nursing home resident, the Federal Court reasoned that there were multiple factors that weighed in favor of striking the arbitration clause in the nursing home admission contract.  Among the factors the court looked at in determining the arbitration clauses invalidity was that the clause was never signed by the resident herself and the woman did not have the mental capacity at the time of her admission to reasonably comprehend the significance of the contract.

Arbitration Clauses 

In an effort to avoid litigation and keep information regarding the quality of care provided in nursing homes private, many nursing homes have inserted arbitration agreements into nursing home admission documents.  Unlike most personal injury lawsuits, where a jury determines the amount of compensation due to an injured person, an binding arbitration (as most arbitration clauses specify) allow one person to determine the damages to be awarded to an individual or family.  Moreover, many nursing home arbitration clauses allow the nursing facility to appoint the arbitrator themselves-- hardly an independent trier of fact.

Many states have stricken arbitration clauses from nursing home injury and death cases and have allowed the matters to be heard by a judge or jury.  Last session, Congress introduced the Fairness in Nursing Home Arbitration Act, which would effectively invalidate all arbitration clauses.  We will keep blog readers updated as to the status of this important development in nursing home legislation as the new Congress convenes.

Read the full case of High v. Capital Senior Living Properties here.

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The family of a 90-year-old nun who died from complications related to a fractured skull has filed a wrongful death lawsuit against the Summit Park Hospital and Nursing Care Center.  The New York nursing home allegedly failed to secure unsteady dressers, within residents rooms, to the wall.  Apparently, when the nun attempted to get some belongings from the dresser, the furniture collapsed on her.  The nursing home became aware of dangerous problems with the dressers when a similar incident occurred within weeks prior to the nuns death. Read more about this lawsuit against a New York nursing home here.

Here is the Nursing Home Abuse Blog's earlier report of this nursing home death.

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A Seattle woman settled a lawsuit against the City of Seattle and Millennia home health care agency for $600,000.  The lawsuit alleged that the home health agency worker failed to follow the care plan specifically developed for people with Multiple Sclerosis.  The failure to follow the care plan lead to development of bedsores or pressure sores.  The home care worker was to shift the woman's weight every 15 minutes to prevent development of the sores.

Not only did the home care worker fail to prevent the pressure sores from developing, the worker failed to properly treat them.  Consequently, the woman was admitted to Providence Hospital for two months of medical treatment.  Two surgeries were performed to treat the pressure sores which were so far advanced, the infection had spread to the bone.  The pressure sores were also infected with MRSA, a potentially life threatening bacteria.

This sad incident highlights the need of home care nurses to properly implement care plans.  Care plans are developed by physicians and other medical professionals, that specifically lay out what medical treatment is to be provided.  If a home care nurse or agency fails to follow the care plan or fails to properly monitor the patient and an injury develops, they have liability similar to that of nursing homes. 

Read more about this case of nursing neglect by a home care agency here.

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The family of a disabled man is suing the nursing home where he lived for multiple counts of negligence in connection with the man's death.  33-year-old Robert Young was a resident at Standifer Place and required 24-hour care due to a brain injury he sustained as an infant.  Last November, the facility rushed Young to a nursing home for reason's listed as a seizure.  In reality Young sustained a skull fracture.  Local police are investigating this matter as a homicide.

In addition to the wrongful death count, the family's lawsuit also claims the facility failed to notify them of his injury and subsequent death.  Consequently, Mr. Young was buried in a pauper's grave and his family was denied their ability to say a last goodbye.  

If this story proves to be true, Standifer Place has not only violated the trust a family has in it when they placed their loved one in the facility, but also violated federal regulations regarding notification of family members when there is a change in their loved one's medical condition.  The fact that this nursing home chose not to notify Mr. Young's family both after he was taken to the emergency room and after they learned of his death is, at the very least, evidence that this facility was not following laws important to patient care.

Read more about this incident of alleged nursing home negligence here.

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Extendicare, a nationally known provider of nursing home care has recently been named as a defendant in a class action lawsuit in Minnesota.  The lawsuit alleges that residents of Extendicare Services, Inc. and Extendicare Homes, Inc. engaged in false advertising unconscionable contracts for new residents at their facilities.

With respect to the claim involving false advertising, the lawsuit claims Extendicare deceptively lured elderly persons to their facilities, with advertising campaigns claiming the facilities would be able to provide the individuals with the care they need.  Extendicare's brochures, staff, and website promoted the nursing homes ability to provide high-quality, skilled nursing care as well standards that exceeded those set by the government with respect to nursing homes.

Government regulations require nursing homes and long-term care facilities to conduct a thorough assessment of individual and their medical needs at the time of admission.  In contrast, Extendicare's nursing homes admission policies paid no to the individuals medical condition or the facilities ability to care for the individual. The needs of current residents were similarly ignored as the nursing home attempted to keep their nursing homes filled to the brim without regard to staffing levels or if certain residents required more care than others.

Another part of the class action lawsuit addresses Extendicare's mandated admission contract that requires new residents and their families to limit their rights with respect to bringing a lawsuit against the facility for personal injuries or property damage.  The admission contract is in violation of Minnesota law that forbids nursing homes from imposing on residents constitutional rights.

Extendicare is on a role.  In addition to facing multiple fines for dangerous nursing home conditions and injury lawsuits in Wisconsin, the nursing home chain faces a similar class action lawsuit in Washington.  In Minnesota, Extendicare owned nursing homes consistently received a higher number of violations than the state average.  

This multi-billion dollar corporation needs to be held accountable for its deceptive and injury-causing practices.  Unfortunately, there are many smaller, non-corporate owned nursing homes that provide poor levels of nursing home care.  If you believe, your loved one in in a situation where they are exposed to nursing home abuse or neglect, you should take steps to remove them from the facility immediately.

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AARP, filed a 'friend of the court' brief in a wrongful death lawsuit pending in New Mexico.  The brief is intended to provide supplement information to the court regarding an injured nursing home resident's ability to pursue a nursing home negligence lawsuit in court as opposed to binding arbitration as stipulated to in a nursing home admission agreement. 

Roswell Senior Living, the owner of a nursing home in New Mexico filed a motion to dismiss a nursing home negligence lawsuit filed by the family of a deceased nursing home resident.  Roswell claims any disputes involving nursing home injury or death, should be resolving via arbitration as stipulated by admission paperwork. AARP has taken a position, supportive of the family bringing the lawsuit that the arbitration clause should be held invalid because of the unequal bargaining position and an injured person's right to jury trial.

Many unsuspecting nursing home residents sign arbitration agreements when they are admitted to the facility.  Little do they know that should they become injured due to the negligence of the facility they could be forced to forgo their right to a jury trial and damages.  Arbitration's have generally been used to resolve business disputes, behind closed doors in a private forum.  Because no court actually hears the matter, many discovery, evidentary and procedural rights are curtailed.  The curtailment of rights usually adversely impacts the injured party.

Fortunately, many State Courts have recently held these binding arbitration agreements to be invalid, and allow injury nursing home residents to pursue claims for damages in court.  We will keep blog readers posted the outcome of this case.

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In situations where there has been a specific incident involving a serious injury or abuse, the nursing home resident themselves or their family will seek out the advice of a nursing home attorney for representation.

The majority of nursing home neglect cases are far more subtle and many people are hesitant to seek out an attorney.  The best rule of thumb is to trust your instinct.  If something doesn't seem right--it's probably not.  Because most cases of nursing home neglect involve ongoing mistreatment, it is important to contact an attorney when you begin to suspect the nursing home may be treating your loved one improperly. 

Pay attention to the physical signs.  Most elderly are hesitant to report situations involving nursing home abuse or neglect and may be scared to confront the people responsible for providing their care.  Patterns of injury should not be tolerated.  Repeated falls, bruising, cuts or infection deserve to to investigated as they are easily preventable situations that are indicative of staffing problems at a facility.

Statute of limitations, or specific time allotments, govern how much time one has to bring a lawsuit against the nursing home or long-term care facility.  Statute of limitations may provide years for pursuing a cause of action.  However, the sooner an attorney is contacted, the sooner an investigation can be started to determine what may have caused the injury or abuse.  Many cases involving nursing home abuse, neglect or injury require the review of extensive medical records and expert witness consultation--time consuming practices to say the least. 

Even in situations where there may seem to be a lack of evidence to prove neglect on the part of the nursing home, an experienced nursing home attorney will be able to sort through the evidence and determine if there is a case and how to proceed.  Most nursing home attorneys work on a contingency fee, meaning they only receive a fee if they are successful in obtaining compensation for the injured party.  No out of pocket expenses are required on behalf of the client. 

There has been a recent trend, in some situations involving severe injury, where the nursing home or hospital may seem to take responsibility for an injury.  Representations may be made by the staff at these facilities that they will 'do whats right' to remedy the situation.  Don't be lulled into believing this song.  Rarely --if ever -- do these individuals really have the interests of the injured party in mind.  Moreover, without the consult of an attorney well versed in what damages an injured person is entitled to receive, the nursing home or hospital will use its uneven bargaining position in its favor.

If you or a loved one suspect the nursing home, long-term care facility, home nurse or hospital may have caused or contributed to an injury or situation involving abuse, why not speak to an attorney who has your interests in mind without any charge to you?

Resource:

Nursing Home Injury Laws

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Eyes On Living had an interesting blog post recently 'Florida Nursing Home Abuse Lawsuits Increasing Thanks To Aggressive Lawyers.'  The article is a little tongue in cheek with respect to how attorneys want to help victims out of the kindness of their own heart, but the author does acknowledge that lawsuits filed in states with a substantial elderly population has actually improved the quality of nursing home care.

This got me thinking about the impact of nursing home litigation has on the overall care received by nursing home residents.  Do nursing home lawsuits have an impact on the quality of nursing home care?  The answer, in my eyes, is a resounding 'yes'. 

Sure, we all hear about juries awarding people with superficial injuries large awards and the recipients going out and spending their awards on lavish things.  The reality of the overriding majority of nursing home injury cases, it that many of these people have been downright neglected or abused and their lives have been forever changed by the acts of nursing homes for the worse.

For many victims of nursing home abuse and neglect their golden years have become anything but happy and satisfying.  Too often, the lives of seniors have been cut short or painfully altered by the acts of facilities that were intended to care for them.  

The purpose of the Nursing Home Care Act in Illinois is similar to laws in place in Florida and Texas--it is intended to help residents of nursing homes and other long-term care facilities from being taken advantage of and ultimately injured.  These laws also allows for attorneys to recover their legal fees if they are successful in their case against the nursing home.

Bad nursing homes are being forced to change their ways.  Many facilities that once cut corners with respect to patient safety can longer do so or they face claims and lawsuits for serious injury.  If improving patient safety and care means that some facilities are forced to close their doors, in the long run we all will be better off.  

Excuse me while I go look look for a billboard...

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A Colorado jury has awarded $375,000 the the family of a deceased nursing home resident.  The family of Doris Wolf brought a lawsuit against Spring Healthcare Center and Sava Senior Care, the parent company for injuries she sustained in a fall while a resident at the facility.

According to the Colorado Department of Public Health, Ms. Wolf was admitted to Spring Healthcare Center for rehabilitation following surgery on her back.  The day Ms. Wolf was to go home, she fell in the bathroom.  Apparently, Ms. Wolf used her call button to ask the nursing home staff for assistance in using the toilet.  After not receiving any response, Ms. Wolf used the bathroom unassisted and fell.  When Wolfe thought an "extended amount of time passed" and no one answered her request, she opted to try to walk toward her walker on her own and broke her ankle. 

The health department investigation also indicated that Spring Creek X-rayed Wolfe's ankle and found no fracture, but a family physician looked at the X-ray results and determined it was fractured in two places.  Similar incidents has occurred in the past.  According to the Colorado Health Department, another resident at Spring Creek Health Center was denied help going to the bathroom in February.

"The resident put on her call light and when staff responded, asked for assistance with toileting," the report reads. "The staff member told her s/he didn't have time to assist her and she would have to wet the bed. Another staff member assisted the resident."

The staff at Spring Creek are doing their job.  The nursing home staff must timely respond to calls for help and provide assistance to those who require it.  Under-staffing probably also plays a large role in these incidents.  If a resident needs to use the toilet should they be forced to suffer the indignity of soiling themselves because the there is inadequate staff or they are not attending to their needs?

Sava Senior Care owns approximately 185 nursing homes across the country, including Spring Creek and Fort Collins Health Care Center.  Sava operates the following facilities in Illinois:

Montebello HealthCare Center
1599 Keokuk Street
Hamilton, IL 62341

Nature Trail Health Care Center
1001 South 34Th Street
Mount Vernon, IL 62864

Odin HealthCare Center
300 Green Street
Odin, IL 62870

Westchester Health and Rehabilitation Center
2901 S Wolf Road
Westchester, IL 60154

Read more about this case of nursing home neglect here.

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Few relationships have such an alignment of interests as an attorney / client contingency fee payment plan.  Simply put, a contingency payment is a payment based on a recovery for the injured person.  In a contingency fee arrangement, the attorney receives no payment until the lawsuit is tried to verdict or settled.  After all the work has been done, the attorney receives a percentage of the recovery. 

The percentage of the recovery a lawyer charges is dependent on the type of case and the complexity of the matter.  Nonetheless, the exact percentage should be agreed upon in writing soon after the retention of the lawyer. 

In all cases there is a chance there will be no recovery--the case may not have merit or the defendant goes bankrupt, ect..  Under a contingency fee contract, if the lawyer does not win the case then the client will not be required to pay a fee. The client is not responsible for paying the lawyer for any of the time he spent on the case.

The ability to collect a percentage of the settlement or judgment provides a solid incentive for a lawyer to best serve a client. This is another reason why contingency plans are very popular with clients. After all, the potential financial reward of getting the highest settlement benefits the attorney and the client equally. So, the attorney will not perform at anything less than his or her best because there is a huge incentive for successfully litigating the case.

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I began to think about this following my recent post on the Fairness In Nursing Home Arbitration Act and reading Donald Vanarelli's Blog on elder law.  The reality of the matter is that trials are becoming less common with both parties frequently opting to either settle their disputes amongst themselves, agree to binding arbitration or use mediation to help them resolve their dispute.  Nonetheless, trials will remain the ultimate way of deciding disputes.

According to The Center for Justice  & Democracy and Bureau of Justice:

• Trials in Federal Court have declined by 80% from 1985 to 2003
• Of the 98,786 tort-related cases in Federal Court only 1,647 or 1.7% went to trial
• There has been a 23% decrease in State Court trials from 1992 to 2001
• A mere 0.5 to 1% of civil lawsuits filed in State Court around the country actually go to trial

My guess is that cases involving nursing home abuse and neglect are consistent with the statistics cited above.  In nursing home litigation there are other factors to consider when evaluating if a case should be taken to trial including:

• The injured parties age- can he or she wait for a trial which may occur years down the road
• Health of the injured party- can they physically be present for the duration of a trail
• Family concerns- does the family want to relive a dark chapter in their lives
  
• Economic- Many nursing homes have 'eroding policies.'  Eroding policies usually have a maximum pay out that includes both defense attorney fees and money paid towards settlement of the injury or death.  In other words, the longer the defense lawyers get paid, the less potential recovery there may be for the injured victim.

I wholeheartedly agree with Vanarelli, that each case should be prepared as if it was going to trial--even if the reality is that it will get resolved through an alternative such as mediation.  Here is Vanarelli's list of how lawyers should prepare for mediation:

   1. You greatly increase the chances of success in mediation when you make the mental transition from thinking like an advocate in pursuit of a “win” to thinking like a counselor seeking to create value for both parties.

   2. Determine what basic information you need from the other party, if any. Think about what the other party will need from your client. Then, make a timely exchange of basic documents and information prior to the mediation.

   3. Prepare your client for mediation. The client should understand ahead of time the general nature of the mediation process: what role the mediator plays, what role the lawyer plays and that confidential information may be disclosed because it is protected in the mediation. In addition, the client should have the benefit of the lawyer’s evaluation of the case, including case weaknesses. Most importantly, the client should understand that there is a real opportunity to resolve the case in the mediation.

   4. Help the client identify his/her real interests by asking the client to tell you what he or she wants to achieve, listening to the answers and examining each goal identified by asking “Why”? “Why do you want to achieve that goal?” Find out what really motivates the client. Asking questions to uncover interests is like peeling the layers of an onion.

   5. Listen closely to the other party during the mediation. When the other party states his/her position, they are giving you valuable information about what they want. Invite them to tell you more by asking: “Why do you want that?” “What is the problem?” “What are your concerns?”

   6. Explore the possible resolutions to the dispute. Assess your client’s BATNA (Best Alternative to a Negotiated Agreement). Your BATNA is the reality your client will face if you reach no deal in the mediation. After analyzing your BATNA, calculate your reservation value, or the lowest offer you would be willing to accept.

   7. Assess the other party’s BATNA. Think through the alternatives that the other party will face if no deal is reached. Using that information, calculate the other party’s reservation value.

   8. Evaluate the ZOPA (Zone of Possible Agreement), or the range of all possible settlements which would be acceptable to both parties. The ZOPA falls between the reservation values of both parties.

   9. Prepare a mediation game plan in advance. Decide whether you should make the first offer, how you will respond to offers made by the other side, and how you will use the joint sessions.

  10. Use the mediator to educate your client about the strength and weaknesses of his/her case. If your client has unrealistic expectations, let the mediator deflate them. If your client is absolutely convinced of an outcome, let the mediator undercut that conviction. Help the mediator to conduct a similar educational process with your opponent. It might be a good idea to submit a summary of the facts and legal issues in the case to the mediator in advance.

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Bad nursing homes generally have a pattern of poor care.  There will always be isolated incidents at even the most well staffed facilities.  However, when repeated incidents occur within a brief period of time there are usually deeper problem with the facility. 

Case in point, two recent lawsuits were filed against the Devon Gables Health Care Center.  The first lawsuit involves, Elfriedel Sitzman, a female resident who was not give adequate care following a stroke.  The lawsuit claims that Sitzman fell and broke her arm in a fall during her stay at the facility from November through December, 2007.

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The family of a woman who died following a fall in a nursing home has filed a lawsuit against the facility alleging the fall caused the woman's death.  According to the lawsuit, Ferris McCarthy, a 79-year-old was a resident at the Sunrise Care and Rehab nursing home fell numerous times while a resident at the facility sustaining multiple injuries including: weight loss, dehydration, malnutrition, constipation, infection, a perforated bowel, and ultimately her death.  The lawsuit seeks compensatory and punitive damages from the nursing home and the nursing home's parent company, Sun Healthcare Group.  <a href="http://technorati.com/claim/zayc4d3hud" rel="me">Technorati Profile</a>

When evaluating whether to bring a nursing home negligence lawsuit, it is important to examine all potentially culpable parties.  Many nursing homes appear to be small, independently owned facilities.  An examination of the corporate books including filings with the Secretary of State, and the state and federal agencies is required to determine if their are multiple owners.  All responsible parties should be named in the lawsuit or you may lose your right to recover from them.  In some states, such as Illinois, you may also name the individual owners of the nursing home in a lawsuit.

Sunrise is a large corporation that operates nursing homes, long-term care facilities and hospice programs throughout the country.  There currently 25 Sunrise facilities operating in Illinois.

Read more about this wrongful death lawsuit here.

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A wrongful death lawsuit was filed in Cook County Circuit Court against Woodstock Residence Nursing Home, WRHC & RC Inc. and two nurses at the facility related to the death of 78-year-old Virgina Cole. The lawsuit alleges that Ms. Cole was administered too-high does of morphine while a resident at Woodstock Residence in 2006.  The nurses took it upon themselves to administer morphine dosages higher than Ms. Cole's physicians had prescribed.

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Nursing home owners take note: no longer can providing poor care to elderly nursing home residents be part of 'doing business.'  Take a look at some recent jury verdicts involving nursing home abuse and neglect.  Imagine the owner of a nursing home writing these types of checks....

• $324,000,000 Texas, Over $300 million in punitive damages for the death of elderly patient due to malnourishment and infected decubitus ulcers.
• $90,000,000 Texas, For the death of 90-year-old nursing home resident.
• $79,000,000 Arkansas jury award
• $54,000,000 New Mexico, Nursing home resident died from internal bleeding without any assistance from the nursing home staff.  The staff reportedly attempted to cover up the incident by removing the blood sheets.
• $33,900,000 Tennessee, Nursing home resident developed pressure sore and urosepsis.  Additionally, resident fell at the nursing home and broke his hip.  The resident walked on the broken hip for 7 days before any x-rays were taken.
• $20,000,000 Kentucky, Jury awarded $1.2 million in compensatory damages and $18.8 in punitive damages to the family of an 84-year-old lady who cries in pain went unresponded to by nursing home staff for hours prior to her death.  An autopsy demonstrated the woman had a bowel obstruction.
• $19,000,000 Texas, Nursing home failed to protect family member from self-inflected abuse and from the abuse of other residents.
• $13,000,000 Delaware, Elderly lady walked into nursing home's freezer and found 4 hours later by nursing home staff.  Lady sustained frostbite to her hands, face, fingers, and toes.  She died 24 days later from pulmonary embolism.
• $6,000,000 Texas, Woman died when she became entangled in the restraining belt of a wheelchair.  The woman's family alleged that the facility failed to properly position her in the wheelchair and failed to monitor her.
• $4,000,000 Kentucky, Doctor and nursing home failed to monitor a patient's lithium dosing causing toxicity and ultimately death.
• $2,900,000 Illinois, Facility failed to clean and suction nursing home resident's trach tube for 5 days, causing it to become obstructed.  The decedent suffered from respiratory arrest and went into a coma for 2 days before expiring. Nursing home admitted liability and case was tried on damages only.
• $2,000,000 California, Facility failed to provide end of life pain relief.

If you believe you are the victim of nursing home abuse or neglect, it is important to seek the advice of an experienced nursing home lawyer soon after the incident.  Important information may be lost if they is a delay in investigating the incident.  Most nursing home lawyers do not charge for any consultation.

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A lawsuit was recently filed against Calvin Johnson Care Center in Belleville, Illinois.  The lawsuit claims that while Fred Moss was admitted to the facility for long-term nursing and rehabilitation, the facility failed to supervise him and was neglectful in their treatment.  As a result of the nursing home neglect, Mr. Moss contracted cellulitis and gangrene in his scrotum and penis which ultimately required the removal of his testicle.   A copy of the lawsuit is here.

My guess is that the man in this lawsuit was catheter dependent. Many nursing home residents are incontinent and have catheters for discharge of urine.  Catheters require ongoing maintenance.  For example, nurses must clean and empty the catheter several times per day.  Further, if a nursing home resident has a Foley Catheter it must be removed and changed at regular intervals.  Failure to properly clean and maintain a catheter may result in a urinary tract infection and ultimately surgical removal of a testicle.

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A Texas jury found CLC Richland Hills nursing home and its medical director responsible for the death of a 79-year old woman.  The woman entered the facility for rehabilitation following a fall.  During the course of her stay, she developed a urinary tract infection which went untreated by the nursing home staff.  Not only did the staff fail to follow proper protocol to prevent the urinary tract infection (uti), it also over-medicated the woman.  The staff admitted they 'dropped the ball'  to state nursing home inspectors. 

The woman's family will not collect much from the judgment.  According to the families lawyer, Geno Borchardt, 'bad nursing home operators and doctors who get overextended, its hard to hold them accountable.'

In addition the fact that a woman died needlessly, this story demonstrates the importance of mandatory insurance coverage for nursing homes.  In the instant situation, the nursing home owner was obviously making plenty of money as he owned 70 nursing homes.  Yet creative business planning and an antiquated system allows him to avoid paying a judgment for the death of his resident.

Read the full article here.

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'Damages' refer to losses sustained do to physical or psychological injury for which you can be compensated. In cases involving injury or death, damages are assessed in terms of money compensation.  In order to recover damages, you first must establish that an employee of a nursing home or the facility itself did something wrong or negligent. There are three elements in proving fault in nursing home accident cases:

• Duty: The nursing home had a 'duty' to act as a reasonably safe facility.  In nursing home cases, the facilities must follow strict Federal and State Regulations setting forth both the type of care that needs to be provided and how the care is to be implemented.
• Breach of Duty: This refers to the nursing home not following physician orders, general nursing home policy or Federal or State Regulations.
• Proximate Cause: It is not enough that a nursing home acted improperly.  In order to address damages you are required to prove that the nursing homes improper actions caused your injuries. 

After you have proved the three elements of liability on the part of a nursing home, you may address damages.  There are several components to damages relating to nursing home cases:

• Medical Bills:  You are entitled to recover the value of past and future medical expenses.  This may include past or future surgery, physical therapy, rehabilitation, visits with physician specialists, medication and special medical equipment
• Pain and Suffering: Both past and future pain and suffering is an element of damages
• Disfigurement: Any type of physical change on the outside of your body
• Disability: Things you are unable to to do after the incident that you were capable of doing before

Assessing damages in nursing home cases can be difficult.  Because many elderly suffer from various ailments before an incident occurred, it is important to distinguish what injuries are directly related to the incident.  Only damages related to the conduct of the nursing home may receive compensation.  The amount of damages may be determined by a jury, judge, mediator or through negotiation between the injured party and the insurance company for the nursing home. 

Punitive damages may be awarded if the nursing home's conduct is reckless or rises to a level of willful and wanton conduct.  Unlike damages designed to compensate the injury victim, punitive damages are designed to punish the wrongdoer. 

Further complicating the assessment of damages in nursing home cases is that many nursing homes are uninsured or under-insured.  The insurance coverage issues must be factored in when making decisions about nursing home case resolution.

Related:

Nursing Home Injury Laws

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No longer can nursing home owners look at potential lawsuit settlements and jury verdicts as a cost of doing business. Juries are sending a message to nursing home owners by handing down large awards to elders who may be victims of poor care or neglect.  This article also demonstrates the importance of nursing homes having adequate insurance coverage to satisfy a large verdict or settlement.

This article appearing in the Association of Trial Lawyer's magazine addresses the new message being sent to nursing home owners.  Below are excerpts from the article.

A growing number of civil lawsuits over elder abuse and neglect reflect both federal and state laws and growing public consciousness, and may be leading to long-overdue changes in the industry. Most such cases are brought against care-providing institutions, and six-figure awards are the norm, with multi-million dollar ones common. Plaintiffs' lawyers say juries have great empathy and sympathy for abuse victims and now consider quality of life an important factor, often more so than life expectancy.

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Any waiver by a resident or his legal representative of the right to commence an action under Sections 3-601 through 3-607, whether oral or in writing, shall be null and void, and without legal force or effect.  210 ILCS 45/3-607 (West 2006)

Further, Section 3-607 states,

Any party to a cause of action brought under Sections 3-601 through 3-607 shall be entitled to a trial by jury and any waiver of the right to trail by jury, whether oral or in writing, prior to the commencement of an action, shall be null and void and without legal force or effect.  210 ILCS 45/3-607 (West 2006)

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  "All too often, the story is the same: avoidable pressure ulcers (bed sores) penetrating to the bone;  wounds with dirty bandages that are infected and foul smelling; patients languishing in urine and feces for hours on end; hollow-eyed residents suffering from avoidable malnutrition, unable to ask for help because their tongues are parched and swollen from preventable dehydration; dirty catheters clogged with crystalline sediment and  yellow-green urine in the bag."

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