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

Long before summer parties have begun, some nursing home owners are getting into a limbo contest of their own-- how low can they go with respect to the liability insurance they carry for their facility.  In terms of liability insurance coverage, many facilities are electing to completely forgo such insurance or obtain such negligible coverage that provides mostly for the 'cost of defense' -- to pay lawyers to defend them.  

These are termed 'eroding' or 'wasting' where the cost of defense is deducted from the policy limits. Hence, if a facility had a $500,000 eroding policy and there were $400,000 in defense counsel fees (this is not necessarily an extravagant cost of defense), the most an injured party could recover under the policy would be $100,000.  In situations involving a severe injury, such an amount would cover little more than a fraction of an injured parties medical expenses.

True, most states allow an injured party to recover money for damages directly from a nursing home owner if a judgment exceeds the limits of the policy.  In reality recovery of personal assets from a nursing home owner rarely occurs.  Most nursing home owners create limited liability companies, many times based outside of the United States, that insulate their personal assets from any judgments.

Is this legal?  You bet.  As a plaintiffs' lawyer I feel very strongly that the real losers in this game of 'insurance roulette' are those that are severely injured or maimed due to the negligent acts of the nursing home. 

Personal Liability Of Nursing Home Employees

While we can debate, the 'fairness' of the lack of mandatory liability insurance for nursing homes when it comes to residents, I want to focus on a second-- and usually forgotten group-- nursing home employees. 

As agents of a nursing home or hospital, nurses, CNA's, administrators and physicians have generally been able to sleep well at night they even if they were accused of negligence and a lawsuit was brought against them. Their employer almost universally defend the lawsuit and if needed pay a settlement or judgment.  

Today, this situation is less common. Increasingly, nursing home employees are being named personally in nursing home lawsuits--especially in situations where a facility has no coverage or is likely uninsured.  This means that nursing home workers are becoming personally exposed with respect to being named as a defendant in a lawsuit.  That's right, you--the nursing home worker-- could be responsible for paying for a legal defense and for paying any judgment or settlement.

This new era litigation should not be passed off a new guerrilla tactic employed by plaintiff's lawyers. To the contrary, most plaintiffs' lawyers would much rather pursue a cause of action against a large company as opposed to an individual-- jurors are more likely to hand down larger verdicts if they know a corporate entity is paying for it.  In most cases this is due to a complete lack of other options for an injured party to recover.

The real blame for this situation falls squarely on the shoulders of the individuals and corporations who own these nursing homes.  For the most part, this group has made a conscious decision to forgo or minimally insure their facilities without little regard to personally exposing their employees.

Time For Employees To Become Familiar With Insurance Coverage

If you work in a nursing home or long-term care facility, it's time for you to get acquainted with the insurance procedures at your facility.  Without sounding overly alarming (and I know I already have), your failure to learn some of the insurance lingo could jeopardize both your professional career and personal finances.

I now believe all nursing home employees should secure professional liability insurance for themselves.  The cost of this coverage is less than you would think and becoming necessary in situations where injured parties are increasingly looking to individuals to be held responsible for their damages.

Before purchasing an individual policy, keep in mind the following:

• Does the policy pay for both costs of legal defense and a settlement or judgment?
• Would the policy pay for claims made against you by your employer-- if they were to sue you for a contribution claim?
• Does the policy cover you if you change jobs?
• Will the policy reimburse you for time spent at a trial or deposition?

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"Are there limits on the compensation the victim of nursing home injury can recover?"

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Sometimes I'm amazed by the number of preventable situations that develop in nursing homes due to a facilities failure to provide basic care.  I mean, doesn't it seem obvious that facilities must provide food, water and a decent environment for their residents?  Am I oversimplifying nursing home care?  Perhaps, but the reality is that an overwhelming majority of nursing home injuries and deaths could be avoided if the facility were to provide this basic level of care.

The Columbus Dispatch reported on this type of preventable situation when it reported on the dehydration death of 61-year-old Peter Southard.  In 2005 Southard was admitted to Whetstone Gardens & Care Center in Columbus, Ohio for short-term nursing care to give his wife a break from her care-giving responsibilities.  Mrs. Southard was the primary caregiver for her husband since he suffered a stroke more than 20 years ago.  The stroke made it physically difficult for Southard to care for himself and realize when he was thirsty.  Unfortunately, the staff at Whetstone Gardens was unable to pick up on his special needs and he died shortly after his 15 day admission to the facility.  The cause of death was dehydration and kidney failure.

Southard's wife brought a wrongful death lawsuit against Whestone due to their failure to provide sufficient liquids to her husband.  Despite claims from the nursing home that the care they provided was sufficient and that Southard died due to dehydration from diarrhea, a jury recognized the facilities failure to provide basic care to this disabled man.  The Franklin County, Ohio jury awarded $500,000 for pain and suffering and $6 million to the wife and family for loss of society.

Dehydration Of Nursing Home Residents

Two out of five nursing home residents suffer from some form of dehydration.  Dehydration in nursing home residents can occur for a variety of reasons, including: diarrhea, the effects of medication, inability to perceive thirst, physical inability to drink or swallow and embarrassment related to incontinence.  Most of the the time, a resident's dehydration is due to inadequate care.  Common situations involving dehydration include:

• Failure of the nursing home to employ adequate staff, which results in the staff's inability to properly feed the residents
• Failure of the staff members to pay adequate attention to those residents needing assistance with eating
• Failure to properly educate the staff on nutrition and feeding methods
• Failure to provide proper supervision over those who provide nutritional services 

In addition to monitoring resident's intake of fluid, staff should be on the lookout for the following signs of dehydration:

• Dark yellow urine
• Sunken eyes
• Ashen skin
• Dry skin
• Bleeding gums
• Urinary tract infection
• Weight loss

Is it really too much to ask that nursing homes provide necessities such as water to their residents.  I guess that is what the Whetstone Gardens and Care Center is asking themselves now.

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We All Need Water

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Labels frequently get tossed around when describing nursing home lawsuits.  Admittedly, some of these descriptors such as 'abuse' or 'neglect' get overused by people who may have a 'vested interest' in the matter-- family members, friends and attorneys.  When an independent investigator applies 'neglect' to his findings, more people should take notice.

"Nursing home neglect" resulting in dehydration is what a Tennessee Medical Examiner ruled as the cause of death following the autopsy performed on 46-year-old Linda Carter.  Carter died on March 27th at the at the University of Tennessee Medical Center following a nine day admission to Hillcrest North Nursing Home.  Carter was admitted to Hillcrest for rehabilitation from injuries sustained in a car accident.

When Knox County Medical Examiner,  Darinka Mileusnic-Polchan, examined Carter's body he noted the following visible signs of dehydration:

• Poor skin turgor
• Sunken eyes
• Concentrated urine
• Empty stomach and proximal small intestine

These autopsy results will not doubt provide added ammunition to the wrongful death lawsuit filed by Carter's children.  The lawsuit against Hillcrest seeks $7 million in compensatory damages and $28 million in punitive damages.  

Currently, the Tennessee Bureau of Investigation (TBI) is conducting its own investigation into the death.  TBI spokeswoman, Kristin Helm indicated that criminal charges may be filed against Hillcrest as well.  "We are looking into it as a suspicious death," Helm said.  " We met with the (Attorney General) and he asked us to look into it more, to review it and come back and meet with him again."

Read more about the medical examiner's finding here.

View The Final Autopsy Report 

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Damages

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

Family Seeks Punitive Damages Against Nursing Home For Death Involving Malnourishment Of 84-Year-Old

Tennessee Legislature Attempts To Limit The Rights Of Injured Nursing Home Residents

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

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

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

Punitive Damages

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

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

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

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

Arbitration Clauses 

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

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

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

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The family of a 68-year-old nursing home resident who wandered from the facility to his death, has filed a nursing home negligence lawsuit.  The family of Antoine Saintil recently filed the lawsuit against Broward Institute For Long Term Care after Antoine want missing from facility on Christmas day.  Search efforts by the facility to find Antoine were unsuccessful.  By the time authorities found Antoine in a waterway, two miles from the facility, he had apparently drowned. 

Antoine Saintil's family faced a difficult decision that many families face every day when they placed him in the Florida nursing home--less than a month prior to his death.  However, the family realized a recent stroke left Antoine disoriented and beyond their ability to care for him. "Because my dad was sick and we didn't want to keep him in the house.  He needed health-care.  He needed someone to help him like doctors, nurses and therapist," said daughter Julie Saintil.

There is no excuse for a nursing home's failure to keep residents who are prone to wandering from leaving the premises of the facility.  Nursing homes that house people, such as Antoine, who are prone to wander or elope should have the following safeguards in place to ensure the safety of each resident:

• Door alarms
• Window locks
• Door locks
• Bracelets that track each resident's location
• Adequate staff to look after residents
• Have contingent plans to locate residents who may wander from the facility

There is no obligation on the part of nursing homes to house every person who seeks out the facility's services.  However, when the nursing home agrees to house a resident who is disoriented or has dementia, the nursing home is implicitly agreeing they are able to properly care for the individual and is responsible for providing proper care.  Read more about this wrongful death lawsuit here.

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Just 20 days after entering the Golden Living Center, 71-year-old Dean Cole lost 20 pounds due to malnutrition and dehydration.  According to Mark Wandersee of the Eldercare Rights Alliance, the nursing home staff is to blame for his rapid deterioration. "He wasn't getting the care he needed for food and water," said Wandersee.

A wrongful death lawsuit was filed against the nursing home alleging Cole's dehydration caused kidney failure and brain damage and ultimately his death.

Notes in Cole's medical chart verify that the nursing home staff was aware he was not eating.  The nursing home staff wrote:

• Resident picks at food
• Needed to be fed for supper
• Not eating well
• Resident refusing to eat

Despite the multiple notations of Cole's inability to eat while unsupervised, his records indicate that he ate the majority of his meals when engaged in mealtime conversation with nurses.  My guess is that this nursing home was seriously understaffed to care for residents such as Mr. Cole.

Here is a video of the news story related to this episode of dehydration and malnutrition.

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

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

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

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

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An 81-year-old assisted living resident walked out the front door of the Bluffview Meadows facility in Wisconsin an into the lanes of a nearby highway where she was struck and killed by a semi-truck.  What makes this story particularly tragic is that this is the second incident involving resident elopement with two weeks.  Nursing homes and assisted living facilities must monitor the whereabouts of their residents.  Further, facilities must have adequate safeguards in place such as door alarms, locks and adequate staffing to prevent resident elopement.

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A coroner determined that a 77-year-old nursing home resident choked to death on his dinner, according to an Australian newspaper. The victim suffered from advanced dementia necessitating assistance with meals. Investigators determined that the nursing home attendant assigned to supervise him left the man unattended as he was eating his dinner.

The link to the full article is here.

Choking injuries and asphyxiation are real dangers amongst the elderly. Many nursing home residents suffer from dementia, impaired judgment, difficulty swallowing, and problems chewing food. It is the responsibility of the nursing home staff to identify those who may be at risk for choking.

If a nursing home resident has difficulty swallowing, the nursing home staff should provide soft foods, cut all food into small pieces and make sure the resident is in an upright position while eating. Most importantly, the nursing home staff must carefully monitor residents during mealtimes to prevent choking. Choking incidents may result in injury, medical complications and even death.

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

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

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

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