Nursing Homes Abuse Blog - By Jonathan Rosenfeld

Number of nursing homes in Maine: 107

Patients living in Maine nursing homes: 6,164

Occupancy rates of Maine nursing homes: 91.7%

Average number of deficiencies at each Maine nursing home: 9.4

Percent of Maine nursing homes with serious deficiencies for actual harm to patient: 19.6%

Most common deficiencies at Maine nursing homes: Professional Standards, Comprehensive Care Plans, Unnecessary Drugs, Food Sanitation

Distribution of ownership of Maine nursing homes: 70 % for profit, 29% non profit, 1% government

Most populated cities in Maine: Portland, Lewiston, Bangor, South Portland, Auburn, Augusta

Staffing levels at Maine nursing homes (daily hours): Above average, 4.5 total staff, 1.4 licensed nurse

Visit Nursing Home Injury Laws to learn more about Maine nursing homes and your legal right

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

In many nursing home negligence cases it may be easy to point the finger at the person who was responsible for the direct care of the individual at the time they were injured.  

Assuming the situation involves an acute incident such as: a medication error or fall--- it is easy to look at the circumstance as an open and shut case of an isolated employee simply not performing their job properly.  However, a closer inspection of the circumstance typically yields a situation where responsibility goes much further up the chain of command.  

From a liability perspective, implicating the management or parent company can be a tactical decision--- particularly if the facility is claiming that they have limited --- or a complete absence of insurance coverage.  Litigation issues aside, it is important to understand that there's a correlation between the actual care provided by staff and how that is impacted by decisions made by management.

Just recently, I read about how an elderly patient at the Grand Rapids Home for Veterans fell from the corner of his bed and broke his neck after a recently hired staff member left him in that precarious position to retrieve equipment.  Given that the man suffered from a variety of maladies that made him particularly susceptible to falls, it would be easy to pin the blame for this incident on the individual staff member and move along.  

Poor judgment of the staff member aside, it turns out that the nurse involved in this incident was hired as a contract employee  as part of the VA's cost cutting measures. By reducing the number one operating expense- staffing-- the Veterans Nursing Home elected to cut staffing levels and hire contract nurses in lieu of higher paid, unionized staff that had historically been caring for patients at the facility.

The decision to use privatized staffing may not appear to be much of difference (and in fairness, may not have prevented the incident we discussed above from occurring in the first place) from a outward appearance.  However, when it comes to consistency in patient care and understanding the unique needs of each patient the change can be quite significant.  

As an attorney involved in nursing home litigation, I can attest to complications that can ensue when new staff are expected to care for fragile patients with complex conditions.  While it may be argued that the new staff could learn a great deal about each patient's needs by studying his or her chart--- expecting a staff member to do so is completely unrealistic when they may be responsible for caring for significant number of patients every shift.

Sadly, as long as the decision makers at nursing homes choose to ignore patient needs and trim staffing levels and pay to the lowest feasible levels, there can be little doubt that episodes of patients suffering significant injuries on the clock of inexperienced (and underpaid staff members) will continue.

Related Nursing Homes Abuse Blog Entries:

Nursing Home's Failure To Implement Fall Precautions Results In Death Of Patient

Nursing Home Spotlight: Alden Town Manor

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

Fall Leaves Veteran With Broken Neck In Illinois Nursing Home

Number of nursing homes in  Kansas: 337

Patients living in Kansas nursing homes: 18,786

Occupancy rates of Kansas nursing homes: 83.2%

Average number of deficiencies at each Kansas nursing home: 15.2

Percent of Kansas nursing homes with serious deficiencies for actual harm to patient: 31.8%

Most common deficiencies at Kansas nursing homes: Accident Environment, Comprehensive Care Plans, Unnecessary Drugs

Distribution of ownership of Kansas nursing homes: 50 % for profit,  38% non profit, 13 % government

Most populated cities in Kansas: Wichita, Overland Park, Kansas City, Topeka, Olathe

Staffing levels at Kansas nursing homes (daily hours):Above average, 3.8 total staff,  1.3 licensed nurse

Visit Nursing Home Injury Laws to learn more about Kansas nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

After hearing the evidence in a wrongful death lawsuit involving an elderly woman's fall at a Florida Nursing Home, a jury became so enraged by the conduct of the facility--- that they chose to punish them the only way they could-- by handing down a huge verdict against the facility.

The trial centered around the care--- or perhaps lack thereof-- that a 92-year-old woman received at Pinellas Park Care and Rehabilitation Center during an admission to the facility in 2004.  It was during that admission, that the staff at the facility allowed the woman to wander in her wheelchair to an unsecured stairway where she fell down multiple stairs to her death.

In addition to the oversight in allowing this patient-- with known wandering propensities--- to wander away from a group of patients at the facility, staff failed to notice the woman's whereabouts even though she was equipped with multiple alarms to alert the facility as to her whereabouts.

According to news reports regarding this landmark nursing home verdict, within just an hour of deliberations the jury awarded the woman's estate $60 million in compensatory damages and $140 million in punitive damages.

Given the impressive award, my guess is that the jury became quite angered after hearing about the was that this facility was operated.  Testimony provided by former employees of the nursing home described a facility was was under-staffed and that allowed problems to develop in the past when the patient suffered other falls and injuries at the facility.  

Related Nursing Homes Abuse Blog Entries:

Wheelchair Patient Falls To Death Down Un-secured Staircase In Nursing Home

Staff Need To Protect Disabled Nursing Home Patients As They Transport Them In Wheelchairs

Unattended Nursing Home Patient Falls Down Stairway In Wheelchair

Fall Leaves Veteran With Broken Neck In Illinois Nursing Home

Number of nursing homes in Illinois: 789

Patients living in Illinois nursing homes: 75,218

Occupancy rates of Illinois nursing homes: 78.6%

Average number of deficiencies at each Illinois nursing home: 9.3

Percent of Illinois nursing homes with serious deficiencies for actual harm to patient: 42.7%

Most common deficiencies at Illinois nursing homes: Accident Environment, Professional Standards, Quality of Care

Distribution of ownership of Illinois nursing homes: 70% for profit,  26% non profit,  4% government

Most populated cities in Illinois: Chicago, Aurora, Rockford, Joliet, Naperville, Springfield

Staffing levels at Illinois nursing homes (daily hours): ): Above average, 3.6 total staff,  1.4 licensed nurse

Visit Nursing Home Injury Laws to learn more about Illinois nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

Number of nursing homes in Idaho: 79

Patients living in Idaho nursing homes: 4,422

Occupancy rates of Idaho nursing homes: 71.8%

Average number of deficiencies at each Idaho nursing home: 13.4

Percent of Idaho nursing homes with serious deficiencies for actual harm to patient: 49.4%

Most common deficiencies at Idaho nursing homes: Accident Environment, Food Sanitation, Unnecessary Drugs, Quality of Care

Distribution of ownership of  Idaho nursing homes:  58% for profit,  16% non profit, 18 % government

Most populated cities in Idaho: Boise, Nampa, Meridian, Pocatello, Idaho Falls

Staffing levels at Idaho nursing homes (daily hours): Above average,  4.6 total staff,  1.9 licensed nurse

Visit Nursing Home Injury Laws to learn more about Idaho nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

One of the most frequent claims I hear from nursing homes and hospitals concerning pending litigation is how the lawsuits are simply isolated events and are not really indicative of the type of care that they provide to their patients.  

While such claims may indeed be very true at some facilities, the reality remains that rarely do facilities have their inferior care targeted upon one patient.  Rather, I tend to see patterns of poor care and mistakes scattered amongst multiple patients at a facility.

I recently read an disturbing article concerning the history of dangerous care provided to patients at Heartland of Charleston Nursing Home in West Virginia.  The facility (which happens to be part of nursing home giant ManorCare) has received a good deal of negative publicity in the past few months after the family of a neglected patient received a monumental $90.5 million verdict in compensatory and punitive damages for the dehydration death of their loved one.

While verdicts on the scale of the Heartland case are fairly rare, Zac Taylor of the West Virginia Gazette uncovered a fairly extensive list of problems at the facility that makes it appear as though patients--- past and present-- may be similarly mistreated.  

When analyzing inspection reports from the Heartland facility over the past several years, recurring patient safety problems and sanctions including:

• A resident, labeled as a fall risk, was found face down on the floor six hours after she was admitted. Nurse's aides had placed a fall mat on one side of the woman's bed. She would have struck a tile floor had she rolled off the other side, the report states.
• One resident had an unnecessary catheter for more than two months, while two more residents were not given proper treatment after doctors had declared them incontinent. The inspector found that one of those residents had been sleeping on a bed with a large wet ring stretching across the bottom sheet.
• Some residents were taking medications they did not need. According to the report, nurses continued to give one resident "sliding scale" insulin doses despite a pharmacist's recommendation to stop. The pharmacist noted that the resident's blood sugars were in "excellent control, " and detailed the facility's need to closely monitor the resident's future insulin intake. Staff had not checked the resident's hemoglobin levels in months, according to the report.
• Nurses found one resident on the floor at least five times in two months. In January, the elderly patient fell twice in a span of about 12 hours. Staff labeled some of the falls as "attention-seeking behaviors," according to the inspector's notes.
• Inspectors found that the home's medications were not properly labeled.
• One resident lost seven pounds in three days because staff had failed to provide dietary supplements a doctor had prescribed.
• A resident with a right hand muscle contracture (a permanent shortening of a muscle or joint) was not fitted with a device designed to help minimize the loss of range of motion. The resident's care plan noted a need for the device in February -- four months before the June inspection.
• Nursing staff took 10 to 20 minutes to answer several residents' call lights.
• One nurse's aide was fired after intentionally unplugging a resident's call light. Administrators did not report the incident to Adult Protective Services within the required time frame.
• Since 2006, federal authorities revoked Heartland's medicare funding three different times and imposed $232,375 in fines related to violations

We will likely hear much more about the Heartland verdict in the coming months and years as the case goes though the appeals process.   For the average nursing home patient and their family, this verdict should serve as a reminder that there may be similar stories of inferior care and neglect behind the headline grabbing reports.  As caregivers, it is important to fully investigate such claims....because they just might be true.

Related Nursing Homes Abuse Blog Entries:

Jury Blames Manor Care Nursing Home For Dehydration Death Of Patient

What's In A Name? Are Large Nursing Home Chains Intentionally Attempting To Deceive The Public When It Comes To Corporate Ownership?

Nursing Home Negligence Lawsuit Filed After Man Wandered From West Virginia Facility

Big Verdicts Against Nursing Homes

An emerging trend in nursing home litigation has been the incorporation of arbitration clauses into admission paperwork. Under an arbitration provision, patients forfeit their right to a jury trial and disputes are resolved at a private arbitration hearing by an arbitrator.  Similarly, some arbitration provisions limit an individuals economic recovery even though state laws provide otherwise.

While most patients and their families never anticipate the need to rely on an arbitration clause to resolve disputes such as injuries occurring to a patient during a nursing home admssion, arbitration provisions significantly impair individual's rights.  Many nursing home arbitrations are decided by a single arbitrator (who may be readily used by facilities) and use evidentiary provisions that can make the production of documents and testimony extremely difficult.

Recognizing the inherent unfairness of nursing home arbitration clauses, the Florida Supreme Court recently invalidated these provisions in two separate nursing home negligence cases (Gayle Shotts v. OP Winter Haven Inc. and Angela Gessa v. Manor Care of Florida Inc.) on the basis that the arbitration provisions undermine public policy and that such agreements impede on the rights granted to injured parties by the state's legislature.

The invalidation of these arbitration clauses means that Florida courts will begin to see a new wave of nursing home negligence cases on their docket as nursing home patients are afforded the same right to trial as folks injured in a more conventional setting.  As nursing home operators realize that they can no longer claim that they are entitled to preferential treatment with the use of arbitration clauses used in their favor, my hope is that better care for all Florida nursing home patients may be in the future.

Related:

Florida justices invalidate nursing home arbitration November 23, 2011 wtsp.com

GESSA v. MANOR CARE OF FLORIDA, INC., No. SC09-768. Supreme Court of Florida November 23, 2011

Judge Denies Assisted Living Facilities Request For Arbitration In Wrongful Death Lawsuit

Another State Invalidates Nursing Home Arbitration Agreements

Number of nursing homes in District of Columbia: 19

Patients living in District of Columbia nursing homes: 2,519

Occupancy rates of District of Columbia nursing homes: 92.8%

Average number of deficiencies at each District of Columbia nursing home: 22.0

Percent of District of Columbia nursing homes with serious deficiencies for actual harm to patient: 21.1%

Most common deficiencies at District of Columbia nursing homes: Food Sanitation, Housekeeping, Quality of Care

Distribution of ownership of District of Columbia nursing homes: 47 % for profit,  42% non profit, 11% government

Staffing levels at District of Columbia nursing homes (daily hours):Above average, 4.4 total staff, 1.8 licensed nurse

Visit Nursing Home Injury Laws to learn more about District of Columbia nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

Number of nursing homes in Connecticut  : 241

Patients living in Connecticut nursing homes: 26,139

Occupancy rates of Connecticut nursing homes: 90.3%

Average number of deficiencies at each Connecticut nursing home: 11.3

Percent of Connecticut nursing homes with serious deficiencies for actual harm to patient: 34.9%

Most common deficiencies at Connecticut nursing homes: Professional Standards, Quality of Care, Accident Environment

Distribution of ownership of Connecticut nursing homes:  78% for profit,  20% non profit,  1% government

Most populated cities in Connecticut: Bridgeport, New Haven, Hartford, Stamford, Waterbury

Staffing levels at Connecticut nursing homes (daily hours): ): Above average, 4.0 total staff,  1.5licensed nurse

Visit Nursing Home Injury Laws to learn more about Connecticut nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

Number of nursing homes in Colorado  : 212

Patients living in Colorado nursing homes: 16,358

Occupancy rates of Colorado nursing homes: 82%

Average number of deficiencies at each Colorado nursing home: 16.4

Percent of Colorado nursing homes with serious deficiencies for actual harmto patient: 42.5%

Most common deficiencies at Colorado nursing homes: Accident Environment, Professional Standards, Quality of Care

Distribution of ownership of Colorado nursing homes:  62% for profit,  20% non profit,  9% government

Most populated cities in Colorado: Denver, Colorado Springs, Aurora, Lakewood, Fort Collins

Staffing levels at Colorado nursing homes (daily hours): ): Above average,  4.0total staff, 1.7licensed nurse

Visit Nursing Home Injury Laws to learn more about Colorado nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

Number of nursing homes in California  : 1,226

Patients living in California nursing homes: 100,578

Occupancy rates of California nursing homes: 84.8%

Average number of deficiencies at each California nursing home: 12.6

Percent of California nursing homes with serious deficiencies for actual harm to patient: 11.8%

Most common deficiencies at California nursing homes: Food Sanitation, Quality of Care, Comprehensive Care Plans

Distribution of ownership of California nursing homes:  80% for profit,  16% non profit,  4% government

Most populated cities in California: Los Angeles, San Diego, San Jose, San Fracisco, Fresno, Sacramento

Staffing levels at California nursing homes (daily hours): Above average, 4.0total staff, 1.4 licensed nurse

Visit Nursing Home Injury Laws to learn more about California nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

Number of nursing homes in Arizona  : 135

Patients living in Arizona nursing homes: 11,788

Occupancy rates of Arizona nursing homes: 76.7%

Average number of deficiencies at each Arizona nursing home: 17.8

Percent of Arizona nursing homes with serious deficiencies for actual harm to patient: 29.6%

Most common deficiencies at Arizona nursing homes: Professional Standards, Clinical Records, Quality of Care

Distribution of ownership of Arizona nursing homes: 79 % for profit,  20% non profit,  1% government

Most populated cities in Arizona: Phoenix, Tucson, Mesa, Glendale, Chandler

Staffing levels at Arizona nursing homes (daily hours): Above average, 4.0 total staff, 1.7 licensed nurse

Visit Nursing Home Injury Laws to learn more about Arizona nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

Number of nursing homes: 230

Patients living in Alabama nursing homes: 23,202

Occupancy rates of Alabama nursing homes: 86.8%

Average number of deficiencies at each Alabama nursing home: 6.2

Percent of Alabama nursing homes with serious deficiencies for actual harm to patient: Below national average, 15.7%

Most common deficiencies at Alabama nursing homes: Food sanitation, Accident Environment, Professional Standards

Distribution of ownership of Alabama nursing homes: 78% for profit, 14% non profit, 7% government

Most populated cities in Alabama: Birmingham, Montgomery, Mobile, Huntsville, Tuscaloosa

Staffing levels at Alabama nursing homes (daily hours): Above average 4.1 total, 1.5 licenced nurse

Visit Nursing Home Injury Laws to learn more about Alabama nursing homes and your legal rights.

**Data based upon 2009 CMS data, U.S. Department of Health and Human Service

It’s probably not all that surprising that when a corporation is hit with a massive verdict, they instantly begin to look for ways to reduce or eliminate their payments.  Recently, we discussed how a West Virginia jury awarded more than $90 million in damages to the family of a patient whom was neglected at a Manor Care facility in the state. 

The case centered on the care provided to a patient with dementia during a three-week admission in 2009.  The lawsuit alleged--- and the jury apparently agreed--- that the care was so inadequate that it caused her death shortly after discharge.

During the trial, much of the case centered on the lack of basic care provided to the woman in terms of inadequate food and water.  Such basic measures were to be provided by nurses’ aides at the facility as opposed to physicians and other more credentialed nursing home employees.

The specific title of each employee who provided care will take on more significance as they are scrutinized according to the state's medical malpractice statute.  Under the terms of legislation passed in 2003 by the West Virginia legislature, victims of medical malpractice are limited in their non-economic damages (pain and suffering) to $500,000. 

While we await some clarification as to the applicability of the medical malpractice statute on this particular case, this certainly highlights the complexities involved in nursing home litigation.  As a nursing home lawyer, I am always reminded how important it is to both thoroughly understand and apply all applicable laws in order to provide the most advantageous set up for every client.

Related:

Lawyers gear up for appeal in $91.5 million Charleston nursing home case The Charleston Gazette, August 21, 2011

Nursing Homes Can Avoid Lawsuits By Properly Doing Their Jobs

Will The Huge Nursing Home Verdicts Effectively Tighten The Screws On The Nursing Home Industry?

Juries Sending A Message To Nursing Homes

A class action lawsuit has been filed on behalf of many past and current patients of Golden Living Centers in California alleging that the facilities' failed to provide minimum nursing care for patients over the past five years.

Despite California state standards that require nursing homes to provide no less than 3.2 hours of nursing care per patient per day, the facilities allegedly chose to ignore the legal requirements and elected to staff the facilities as elected.  As a result of Golden Living's failure to provide state mandated nursing care, the lawsuit alleges that patients suffered neglect and injury.

In response to the lawsuit, the nursing home asserts that their care was sufficient for the needs of the patients and that the pending lawsuit should be dismissed. 

However, they frankly are ignoring the crux of the case before them-- that they broke the law by failing to provide the state mandated nursing care to their patients.

A San Francisco Superior Court Judge will decide next month if the lawsuit can proceed under the current theory being alleged.

A similar nursing home class action lawsuit, almost put the large nursing home operator Skilled Living out of business when a jury awarded more than $670 million to members of a class who alleged similar under-staffing.

As a nursing home lawyer, I find it refreshing to see that many of these large nursing home operators are finally getting called out for their conscious decisions reduce staffing levels in order to increase profits.  While it can be difficult to trace directly, facilities that chronically under-staff, tend to have higher rates of patient injury.  Assuming that this case progresses forward, it will hopefully be a huge wake-up call for the industry.

Related:

Class Action Lawsuit Against Skilled Healthcare Seeks Damages For Chronic Under-staffing Of Nursing Homes

Nursing Home Chain Hit With Landmark Verdict In Under-Staffing Class Action Lawsuit

Golden Living Sells All Its Arkansas Nursing Homes

Health facility targeted in lawsuit, By Dan Johnson Petaluma360.com, July 8, 2011

A legal battle is heating up in Oklahoma that will likely impact the way the government handles funding penalties in the future with nursing homes across the country.  The heart of the battle involves a small Tulsa nursing home with extensive patient-safety violations over the past year.  The violations were deemed so severe that officials took that rather drastic step of terminating Medicare and Medicaid payments to the facility.

Rather than disputing the alleged violations themselves, the nursing home asserts that the government acted improperly in applying care standards during its inspections.  As a result of the improper standards, the government is alleged to have overstepped their authority in stripping the facility of government funding.  Hence, the facility should continue to receive governmental payments for the care (or lack thereof) it provides patients.

In an unusual act, Woodland View Care and Rehabilitation Center and its parent company Sun Healthcare Group Inc. initiated their legal fight by suing multiple government agents from state and local agencies in an attempt to block efforts to cut off funding.  

Multiple inspections confirmed widespread problems at the Woodland View facility, which cares for approximately 70 disabled and elderly patients.  Amongst the findings from nursing home inspections include the facilities failure to:

• Protect residents from abuse
• Provide pain medications as ordered by physicians
• Treat wounds such as bed sores (also referred to as: decubitus ulcers, pressure ulcers, pressure sores)
• Provide adequate staffing levels to protect patients from accidents at the facility

The matter is currently pending in the 10th Circuit after a lower court ruled that the nursing home failed to follow proper administrative procedure under the Medicare Act and dismissing the original claim.

The real issue in this legal mess

While such termination of government funding would effective run most nursing homes quickly out of business, Woodland View certainly has the wherewithal to continue its operation as Sun Healthcare remains one of the larger operators of nursing homes in the country with more than 200 facilities and $2 billion in annual revenue.

A closer review of Oklahoma law may provide a little insight as to why this nursing home is putting forth such a vigorous fight in this matter.  Like some other states, Oklahoma prohibits nursing home operators from opening additional facilities within the state after a facility has lost its federal funding.  Sun Healthcare would thereby be prohibited from expanding its presence in Oklahoma beyond the six facilities it currently operates.

Oh, by the way, while the court sorts out this legal mess Woodland View continues to receive your tax dollars--- $3.7 million to be exact-- per the court's order to continue funding while the matter is heard.

Related:

It's Time To Yank Federal Funding From Dangerous Nursing Homes

Special Focus Facilities: The Worst Nursing Homes Of All

94-Year-Old Charged With Raping Co-Resident In Oklahoma Nursing Home

Do Nursing Home Inspectors Need To Exercise More Regulatory Muscle With Dangerous Facilities?

Some days my law office gets bombarded with inquires from families wanting to know nothing more than if the facility they are considering placing their loved one in has been sued before.

After all, if a facility has been repeatedly sued, do you really want your family member there?

Though I am familiar with the litigation history at some facilities--- and certainly don't mind sharing my knowledge-- I usually direct the families towards the local courthouse-- or better yet -- the court's website. 

Since most nursing home negligence lawsuits are filed in state court, you first of all may want to look in the court within your county.  Lawsuits are considered public records and most courts freely allow the public to access individual files pertaining to lawsuits.

Better yet, today many state and federal courts have on-line databases where you can review court information from your home. 

Tips:

• Even if you think you know the name of the nursing home, check your state's secretary of state website and / or department of health to confirm the legal entity that owns / operates the facility.  You will not get an accurate court record, if you do not look up the correct entity!
• Input the name of the nursing home where it says 'Defendant'-- this is the party getting sued
• Don't expect to get all the specifics surrounding the lawsuit.  Many jurisdictions do not require all documents to be filed with the court
• Don't expect to find out how much every case was worth.  Many nursing home lawsuits are resolved for 'confidential' amounts prior to trial
• Some cases are settled prior to filing of a lawsuit-- there is no public record for these cases

Below is a sampling of the lawsuits filed against nursing home behemoth ManorCare in Cook County (Chicago), IL.  This list was compiled using the Cook County Court's website, and for accuracy sake, you may wish to pull the actual court file to confirm the accuracy of this compilation.

Lawsuits Filed Against ManorCare In Cook County, IL (as of 1/1/11) Since 1997

• 172 lawsuit filed where ManorCare is a named defendant
• ManorCare Oak Lawn – 2 lawsuits
• ManorCare OakLawn East – 1 lawsuit
• ManorCare OakLawn West – 6 lawsuits
• ManorCare Hinsdale – 7 lawsuits
• ManorCare Skokie – 1 lawsuit
• ManorCare Homewood – 6 lawsuits
• ManorCare Elk Grove Village – 3 lawsuits
• ManorCare Palos Heights – 5 lawsuits
• ManorCare Palos Heights West – 1 lawsuit
• ManorCare South Holland – 8 lawsuits
• ManorCare Naperville – 1 lawsuit
• ManorCare Normal – 1 lawsuit
• ManorCare Wilmette – 2 lawsuits
• ManorCare Northbrook – 2 lawsuits
• ManorCare Arlington Heights – 1 lawsuit
• ManorCare Libertyville – 1 lawsuit

Related Nursing Homes Abuse Blog Entries:

ManorCare Facility Named In Nursing Home Negligence Lawsuit After Patient Fractures Leg

Family Awarded $546,000 In ManorCare Lawsuit

Chicagoland Manor Care Facility Named In Wrongful Death Lawsuit

In the law, there are many opinions released by courts that may not appear to directly impact a particular situation-- on their face.  However, a closer examination of the principals involved may demonstrate their application to other situations never directly mentioned in the opinion.  Here, we can see the Illinois Supreme Court's interpretation of arbitration clauses in the consumer context-- similar to the nursing home admission setting.

William Carr v. Gateway, Inc. is a 2002 class action filed by William Carr and other plaintiffs against Intel Corporation, Gateway, Inc.  The plaintiffs alleged that Gateway misrepresented the speed of the computer’s processor when they claimed that the Pentium 4 worked faster than the Pentium 3.   

The Madison Record: 8-year-old Tillery class action against Gateway gets new life at Supreme Court

Nursing Home Injury Laws: Illinois

Nursing homes have an obligation to create and implement personalized care plans for every patient at their facility.  The care plan is not an optional activity, rather the plans are required by federal law.  Recognizing the threat of falling-- and fall-related injuries-- the care plan must assess and address each patients fall propensities.

Particularly in nursing home fall cases, where a patient may fall for a variety of reasons-- some due to poor care and some completely independent thereof, it is important to look at the specific incident and evaluate if the safeguards were properly implemented-- or not.

As a nursing home lawyer, comparing the the safeguards implemented at the time of the fall vs. what was prescribed in the patient's care plan is really a crucial step towards evaluating a potential claim against a facility.  Further, as patient's needs change, facilities need to re-asses their care plans to accommodate the patient's needs.

This being said, an Ohio jury surely didn't buy the assertions made by Heather Knoll Nursing and Rehabilitation Center that they provided all of the necessary safeguards to ensure the safety of Robin Volpe.   Recently, the jury awarded Mrs. Volpe's family more than $1 million in a wrongful death lawsuit stemming from fall-related incident at the facility.

Though the facility intends on appealing this verdict, I'm sure that this lawsuit is a real wake up call for the facility especially in terms of the way they implement fall prevention measures.  At the very least, I hope that this lawsuit and substantial verdict help improve the safety for other residents at the facility.

Related:

Falls In Nursing Homes Are A Serious Threat To The Safety Of Many Patients

New Technology Promises To Reduce Falls In The Elderly Population

Even Common Falls Put Elderly At Risk For Developing Subdural Hematomas

Falls Amongst The Elderly Can't Be Ignored

Nursing home to appeal decision awarding $1 million to family. By Jeremy Noble Tallmadgeexpress.com January 25, 2011

Nursing Home Injury Laws: Ohio

A lawsuit brought on behalf of a former resident of an Extendicare nursing home in Kentucky alleges that the operator's corporate negligence is responsible for various injuries that developed during her admission.  In addition to naming Extendicare, the lawsuit further alleges that the nursing home administrators and individual staff members are responsible for the patients injuries.

According to a report in the Richmond Register, the patient identified as Elise Harvey, was a patient at Fir Lane Convalescent Center (also referred to Richmond Health and Rehabilitation Complex-Kenwood) for approximately three months during which time she suffered:

• Falls
• Abrasions
• Pressure sores
• Medication errors
• Over-medication
• Malnutrition
• Dehydration
• Pneumonia
• Urinary tract infections

In addition to general negligence, the lawsuit further alleges that Extendicare violated the applicable laws that control nursing home care in Kentucky.  Both compensatory and punitive damages are sought.

Corporate Negligence

Many cases involving patient injury or neglect can be traced back to a conscious decision on the part of the parent company to operate the facility in a particular way.  As a nursing home lawyer, I see cases where there may be a complete disconnect between the needs of the patients and the desire of the nursing home owner to extract maximum profit from a facility they may view as a cash machine.

Because decisions regarding important issues such as staffing levels and training are usually made by the corporate owner, it is usually imperative to name the corporation in nursing home abuse lawsuits.

Related:

Nursing home, staff members facing lawsuit, The Richmond Register by Emily Burton January 10, 2011

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

Videotape Reveals Abuse In Kentucky Nursing Home

Nursing Home Negligence Lawsuit Filed Against Extendicare

Nursing Home Injury Laws: Kentucky

A Minnesota family cites repeated neglect as being responsible for the death of their mother, 91-year-old Esther Rannow. 

The poor care started when Ms. Rannow entered the Benedictine Living Community in St. Peter, MN in February 2007.  In addition to developing a urinary tract infection that went untreated, the family also identifies episodes of poor nursing that cumulatively took a toll on their mother—and eventually claimed her life.

Specifically, the family identifies an episode in October 2007 when a CNA dropped their mother as she was attempting to place her into a bed from a hospital gurney.  The dropping incident occurred just one month after Ms. Rannow was injured in a similar incident. The second incident occurred when one CNA attempted to transfer their mother to a wheelchair while the ‘care plan’ required a two-person assist.

The family’s reports of neglect at the nursing home were reported to the Minnesota Department of Health, but the agency was unable to substantiate the neglect based on their findings.

Not satisfied with the Department of Health’s investigative findings, the family has elected to pursue a wrongful death lawsuit against Benedictine Living Community and its parent company Benedictine Health Dimensions.

In the lawsuit, attorneys for the family will likely have an opportunity to ask questions of the employees who have knowledge of this incident. Oral questioning or depositions, as they are commonly known, allow an attorney to ask questions of a witness under oath. 

In many nursing home injury cases, a skillfully taken deposition can not only provide clarification as to how an incident may have occurred, but frequently can be effective in getting cases resolved—particularly, when facts that are unfavorable to the facility are disclosed by current or former employees.

As this lawsuit moves through the discovery phases, we will soon learn whose interpretation of events is more accurate. 

Related:

Nursing Home Staff Must Take Precautions While Moving & Transferring Disabled Patients To Minimize Risk Of Dropping

Falls In Nursing Homes Are A Serious Threat To The Safety Of Many Patients

'Poor Judgment' To Blame For CNA's Failure To Implement Fall Precautions In Minnesota Nursing Home Death

Wrongful Death Lawsuit Filed Against St. Peter Nursing Home by Dan Nienaber The Free Press, December 7, 2010

Joseph Clint Offutt lived an admirable life.  Like many of his generation, Mr. Offutt served in World War II, working on the farm and was a dedicated husband for 58 years.  Yet despite all of his accomplishments in life, age began to creep up on Mr. Offutt. 

After suffering a stroke in 2007, Mr. Offutt's family realized that they were no longer able to care for him at home so they looked for a skilled nursing facility. 

On March 25, 2008 Mr. Offutt was admitted to Harborside of Madisonville (currently known as Hillside Villa Care and Rehabilitation Center).  Just nine days later, Mr. Offutt was transferred to a nearby hospital for multiple complications he developed during his brief stay inlcuding:

• Severe dehydration
• Malnutrition
• Bed sores
• Infections

On April 3, 2008, at the age of 92, Mr. Offutt passed from the complications that developed during his brief stay at Harborside (Kentucky).

As a result of the poor care, Mr. Offutt's family initiated a wrongful death lawsuit against Harborside and the parent company Sunbridge Healthcare Corporation.

After three weeks of hearing evidence in the case, a jury awarded Mr. Offutt's family $42.75 million comprised of $1 million pain and suffering, $1.75 million for his wife's loss and $40 million for punitive damages.

Short Stays, Rapid Declines

While the juries award in this matter is certainly not typical for most nursing home negligence matters, the fact patter unfortunately is.  Many of the nursing home negligence cases my office is currently prosecuting involve the development of a medical complication after a brief admission to the facility.

In some cases the rapid spiral of poor care stems from the fact that the patient is new and staff may be infamiliar with their medical needs.  In a substantial number of cases, I tend to see facilitieis over-promise and under-deliver when it comes to being capable of providing care that the patient requires and that the familiy was assured of.

Either case is unacceptable and merits furhter evaluation by an attorney who prosecutes nursing home cases to determine if the correlation between admission and death is a coincidence or due to the negligence of the facility.

Related:

Jury awards $42.75M in nursing home death Lexington Herald-Leader

Hours After Admission To Illinois Nursing Home For 'Respite Care', Resident Fractures Hip

Respite Care: A Welcome Break For Caregivers Or Exposing A Loved One To Unnecessary Harm?

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

The Chicago Tribune recently reported on a jury verdict where the family of a deceased nursing home patient was awarded $546,000 in a lawsuit brought against Friendship Manor Care in Grinnell (Iowa) and Midwest Ambulance Services of Iowa.  

The lawsuit was brought about by a 2009 incident in which an elderly patient was being brought out of the ManorCare facility and fell from a gurney due to cracks on the pathway on the nursing home property.

The fall resulted in the man striking his head on the pavement and lapsing into a coma from his head injuries.  Several days later the man died.

The Iowa jury apportioned fault as follows: Friendship Manor Care 90%, Midwest Ambulance Service of Iowa 10%.

This lawsuit highlights the need to conduct a thorough investigation of every potential nursing home negligence case to determine who the potential parties may be.  In some cases, all parties may not be readily apparent and an investigation may be necessary to evaluate the culpability of responsible parties.

Related Nursing Homes Abuse Blog Entries:

Nursing Home Operators May Be Responsible For Injuries Due To The Negligent Removal Of Snow & Ice

Chicagoland Manor Care Facility Named In Wrongful Death Lawsuit

ManorCare Nursing Homes In Chicago: How Does Your Facility Compare?

A new court decision by the Eleventh Circuit in the matter of Bradley v. Sebelius, 2010 WL 3769132 (11^th Cir. Sept. 29, 2010) helps clarify the murky area of the law as to who is exactly entitled to the proceeds from a wrongful death settlement proceeds in nursing home cases.

In making its decision, the court ruled that the proceeds from a wrongful death settlement are the property of the decedent’s family exclusively and the proceeds are exempt from Medicare recovery. 

Bradley involves a wrongful death claim initiated by the family of Charles Burke who allegedly died due to the negligence of the Florida nursing home where he was a patient.  Before a lawsuit was filed, the family of Mr. Burke was able to settle their claim with the nursing home for the limits of facilities insurance policy.

After the claim was settled, Medicare asserted a lien in the matter for medical expenses incurred by Mr. Burke—for approximately half of the total recovery.  Despite several state courts holding that reduced Medicare’s recovery to a minor amount, the Department of Health and Human Services (HHS) appealed the decisions alleging that the terms of Medicare Secondary Payer Manuel should control.

Despite Medicare's claim of federal preemption, the court of appeals found HHS’s argument unpersuasive and used Florida’s wrongful death statute as the controlling law on the matter. “Under Florida law, any claim of the estate is separate and distinct form the claim of a survivor,” wrote Judge James Hill in his decision. 

Judge Hill goes on to say,

All loss of consortium or companionship recoveries is the property of the person who incurred the loss.  Not the secretary of HHS.  A child’s loss of parental companionship claim is a property right belonging to the child.  Not the secretary of the HHS.

As lawyer who represents families in wrongful death matters involving nursing home negligence and medical malpractice, I hope this decision brings some clarity to this increasingly complicated area of the law.  Nonetheless, all matters involving a potential recovery claim by Medicare need to be carefully evaluated at the time of settlement to assure that the settlement proceeds are maximized for the client.

Related:

Bradley v. Sebelius, 2010 WL 3769132 (11th Cir.) September 29, 2010 (PDF)

Nursing Home Injury Laws: Florida

Many facilities offer multiple levels of care depending on the needs of the patient: skilled nursing care, assisted living and independent living options.  The variety of services can be great for patients who may desire to remain at a facility for an extended period of time.  If, and when, the patient requires more assistance they can simply move from one area to another with a fair amount of continuity.

It should go without saying that even the most independent patients at these one-stop-shop facilities are still dependent on staff and their colleagues for some assistance and support.  Even folks living in an independent living environment are there because they can not or choose not to live in their true homes.

The Journal Sentinel reported on situation at a Milwaukee independent living facility that highlights the problems encountered by an injured patient at the facility.  Like many independent living facilities, Clement Manor has multiple levels of care for patients depending upon their needs.

However, even the 'independent living' apartments are equipped with pull-cords that a resident can use to contact staff for assistance in an emergency situation.  Implicitly, by having the pull-cord in the patients room, there is an understanding that staff can-- and will, attend to patient needs when they are notified.

A lawsuit filed against Clement Manor and its sponsoring entities School Sisters  of St. Francis and School Sisters of St. Clare alleges staff at the Clement Manor facility acted 'inexcusably and unconsciously' when they ignored a patients call for help --- for more than four hours.  The delay in response to the patients injury is alleged to have contributed to the patients death due to her uncontrolled bleeding.

An investigation into the incident by local police determined that the patient's pull cord was activated at 12:25 a.m on February 15th after the patient somehow cut a varicose vein.  Despite a visual and audible alarm at the attendants station, no assistance was provided until 4:34 a.m. when the patient was found dead in her bathroom from uncontrolled bleeding.

Independent Living Facilities & Lack of Regulation

If the patient's family can establish that this independent living facility  acted negligently in responding to the patient's request for help, a jury will then asses damages against the facility.  However, this situation may be more difficult that you would think given the fact that there really is no regulation-- and really no formal 'standard of care' for this patients family to base their claims on.

Certainly, as our population ages and as more and more living arrangements are introduced, we need to impose standards to help protect those who may be unaware that they really are testing uncharted waters.

Related Nursing Homes Abuse Blog Entries:

Are Group Homes A Viable Alternative To Nursing Homes?

Who is responsible for deciding whether an assisted living facility can properly care for a resident?

Call Lights. How Should Staff Respond?

Some of the substantial verdicts we have recently discussed at the Nursing Homes Abuse Blog here and here involve jury verdicts with punitive damage components.  While some of these verdicts may seem excessive, most of the time the damages are awarded because the facilities conduct was so extreme that it deserves to be punished.  In most jurisdictions, the punitive damages can only be pursued after a judge has approved the punitive damage portion of the lawsuit.  

Unlike compensatory damages, that compensate an injured party, punitive damages are intended to punish the wrongdoing facility.  While punitive damages may be awarded against one facility, many times the punitive award serves as a wake up call to other facilities to improve their care or risk similar awards.

However, the punitive damage aspect of many nursing home lawsuits will now have limited use in some cases involving Illinois nursing homes.  Now, if a member of your family dies as a result of injuries caused by the nursing home’s willful and wanton misconduct under the Illinois Nursing Home Care Act, you are no longer entitled to punitive damages in a survival action.

In Vincent v. Alden-Park Strathmoor, Inc., a case decided on April 7, 2010, the Second District Illinois Appellate Court held that an estate representative cannot seek common law punitive damages in a survival action for willful and wanton violations of the Illinois Nursing Home Care Act (NHCA – 210 ILCS 45/1). The court decided that there was no statutory basis for punitive damages. 

This case was brought by Thomas Vincent, the legal representative of Marjorie Vincent’s estate. He sued Alden-Park Strathmoor for injuries that Ms. Vincent suffered while in Alden-Park Strathmoor’s care. Alden Park Strathmoor is a one-star Medicare rated nursing home facility in Rockford, IL. This facility had 17 total health deficiencies between February 2009 and April 2010. This is 9 more than the average number of health deficiencies in both Illinois and the United States.

Mr. Thomas Vincent filed a three count complaint against the nursing home:

• Count I – defendant’s negligence violated the Nursing Home Care Act
• Count II – defendant’s actions violated the Wrongful Death Act
• Count III – defendant’s willful and wanton conduct violated the Nursing Home Care Act with the plaintiff reserving the right to seek punitive damages for the alleged willful and wanton conduct

The main interest in this case comes with Count III of the complaint, where the plaintiff reserved the right to seek punitive damages for the defendant’s alleged willful and wanton conduct, under section 2-604.1 of the Code of Civil Procedure (735 ILCS 5/2-604/1), which pertains to the pleading of punitive damages. The Survival Act (755 ILCS 5/1) allows an estate’s representative to maintain any actions that accrued to the decedent prior to death. 

The court noted that the Survival Act allows “actions to recover damages for an injury to the person” to survive a decedent’s death. However, the found that the Survival Act did neither provided for punitive damages nor were there strong equitable considerations favoring survival of punitive damages claims. 

Therefore, even in cases where a nursing home’s willful and wanton misconduct results in the death of a resident, the administrator of the decedent’s estate may not seek punitive damages in a survival action. Instead, the administrator must rely upon the civil and criminal penalties provided by the Nursing Home Care Act for violations of that Act. 

Sources:

Illinois Court Opinions: Vincent v. Alden-Park Strathmoor, Inc.

Illinois State Bar Association: Vincent v. Alden-Park Strathmoor, Inc.

Illinois General Assembly: 735 ILCS 5/2-604.1 – Pleading of Punitive Damages

I guess there's probably a lot a screaming and yelling going on at the Skilled Healthcare Group (SKH) headquarters in California.  Perhaps the anger derives from the miserable looking financial chart for the company showing a whopping 75% decline in price per share in one day!

Another portion of the companies anger is probably being misdirected at the lawyers who defended the company in a class action lawsuit brought against Skilled Healthcare based on systematic under-staffing at 22 nursing homes owned by the corporate giant.  Really, the only people to blame are the managers in the company who intentionally chose to limit that staffing at their facilities.

After hearing months of evidence regarding staffing levels at the nursing homes operated by Skilled Healthcare, the jury awarded the maximum amount permissible under the California Health and Safety Code--- a whopping $671 million to the members of the class. 

The massive jury award is hardly an arbitrary number.  Rather, the compensatory damages were awarded based on a statutory violation of $500 per-patient per-day at the 22 subject facilities for not providing that state minimum staffing of 3.2 hours for each patient living at the nursing homes on a daily basis.

In addition to the compensatory damages, the lawsuit also seeks punitive damages against Skilled Healthcare.  Unlike compensatory damages, punitive damages are intended to punish the wrongdoer for their acts.  The punitive aspect of the lawsuit will move forward in the coming weeks.

I'm sure that it will take some time before any of the plaintiffs involved in this case receive any portion of the recovery, this verdict will likely force nursing home operators to re-evaluate the way they operate and the decisions they make with respect to staffing levels at their facilities. 

Sadly, when facilities are short staffed, nursing home patients suffer.  Under-staffing in nursing homes continually contributes to incidents of nursing home abuse and neglect. 

Dare I say that this verdict may improve the quality of life-- not just for patients at Skilled Healthcare facilities-- but countless other who suffer from systematic under-staffing at other facilities across the country?

Related:

Class Action Lawsuit Against Skilled Healthcare Seeks Damages For Chronic Under-staffing Of Nursing Homes

Under-staffing At Nursing Home Blamed For Pressure Ulcer, Infection & Subsequent Death

Poor Training & Under-Staffing Blamed For The Death Of A Nursing Home Patient Who Died From Injuries Sustained After She Was Dropped By A CNA In A Minnesota Facility

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

Minimum Nurse Staffing Ratios

The collective negligence of multiple nursing home employees does not impute criminal conduct on the part of the corporate owner according to a recent ruling made the Supreme Judicial Court-- the highest court in Massachusetts.

The decision stems from the death of a 74-year-old patient at a MA nursing home owned by Life Care Centers of America.  Despite the patient's extensive history with respect to wandering from the facility, the facility failed to take basic precautionary measures that would likely prevented the wheelchair-bound patient from falling down a set of stairs to her death.

An investigation into the patient's death concluded revealed that there were no physician orders for a device called a WanderGuard in the patient's chart.  Had the WanderGuard been administered to the patient, she would not have been unable to literally wheel herself out the front door of the facility in her wheelchair.

"The Commonwealth is attempting to promote conduct that is no more than negligent on the part of one or more employees into wanton or reckless conduct on the part of the corporation," Justice Judith Cowin wrote in the majority opinion.

As a lawyer, I certainly respect the wisdom of this court.  However, as an advocate for victims of nursing home abuse and neglect, I find that too often corporate nursing home owners foster a culture where patient-care is an after thought and paying civil claims is simply a way of doing business.  

I certainly admire Attorney General Martha Coakley's desire to pursue this type of simply wrong conduct criminally.  Perhaps laws need to be stiffened to force nursing home operators to regain control over their staff.

Life Care Centers of America operates more than 200 skilled nursing homes, assisted living facilities, retirement living communities, home care services, and Alzheimer's centers.

Read more about this important decision regarding nursing home care here.

Related:

Investigation Concludes: Most Nursing Home Administrators Are Never Disciplined For Poor Care

Lawsuit Claims That Nursing Home Failed To Intervene In Case Involving The Sexual Abuse Of A Patient

"Life Care Center" Permitted To Accept New Patients After State Finds Poor Living Conditions

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

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?

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:

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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

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.

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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

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A Call To Abolish Arbitration Clauses 

Bed Sore Resources

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.

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Big Verdicts Against Nursing Homes

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.

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

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

Nursing Home Sued After Resident Fractures Both Hips In Separate Falls

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?

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Falls Amongst The Elderly Can't Be Ignored

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)

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

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.

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.

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.

Nursing Home Injury Laws: Washington

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.

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

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.

Related:

Nursing Home Injury Laws: Colorado

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.

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.

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.

'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

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)

I received several responses from blog readers regarding yesterday's post questioning the need to have a link to a 'You Tube' video demonstrating the catheterization process.  If I offended any of our subscribers, I apologize. However, I will not apologize for bringing to light incidents of abuse and neglect involving the elderly.

Photographic evidence is one of the most important tools in proving abuse and neglect involving nursing homes. It is one thing to see a mention of bedsores, bruising or broken bones in a stack of medical records. It is quite another to see the actual photographs.

I advise people who may suspect  nursing home abuse to document all aspects of their injuries via photographs. How else can other people appreciate the extent of the injury or the disability you face without viewing the photos?

Do not take 'no' for an answer if your loved one wishes to be photographed or videotaped. There is no legal basis for the staff at a nursing home or hospital to deny a resident's / patient's right to be photographed. If need be, get a judge to order the photographs to be taken.

For example, cases involving bedsores or pressure ulcers in hospitals, nursing homes, and assisted living situations, the bedsores may develop quickly. It is important to document the bedsores progression from both a patient and facility prospective. Just as a photo may demonstrate neglect, it may conversely prove otherwise if used by a nursing home to refute an allegation of neglect.

It is advised to accurately date all photographs and document the photographers to assure accuracy and admissibility in a court setting. Moreover, use of a daily newspaper to verify the accurate date is advisable. Below are some common examples of nursing home neglect captured by camera.  Lawyers at Stark & Stark a law firm with offices New Jersey have already addressed the issue of photographic evidence in nursing home litigation. Well done.

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