Many Suspicious Elder Deaths In Nursing Homes & Hospital Go Un-investigated


Screen shot 2012-04-14 at 9.44.05 AM.png[Photo Caption: A post-mortem investigation concluded that Joseph Shepter (above) died as a result of extreme neglect in a nursing home. (Photo Courtesy of the Shepter family)]

At first glance, nothing about William Neff’s death seemed unusual. The 83-year-old WWII veteran had spent his final days in an assisted living facility in Bucks County, Pa. When the inevitable occurred, and Neff succumbed to advanced-Alzheimer’s disease in September of 2000, the nursing home doctor simply noted that Neff “failed to thrive.”

Case closed; documents sealed.

Until a local funeral home director got a glimpse of Neff’s body.

“I’m no CSI expert, but I’ve been doing this for 25 years, and I’ve seen a lot of dead people,” said Jeffrey Thompson, in a recent article by NPR and Propublica.org. “He was all bruised up and purple, and his ribs were broken.”

Thompson’s grim discovery let to an autopsy, which revealed that a violent impact had shattered five of Neff’s ribs. The results of the autopsy spurred an 18-month criminal investigation, in which nursing home employee Heidi Tenzer was convicted of stomping on Neff’s chest. In 2003, Tenzer was sentenced with third-degree murder.

While William Neff’s case may be somewhat extreme, it’s certainly not unusual for coroners to miss signs of elder abuse. In fact, as many as 80 percent of deceased seniors never even receive an autopsy.

“We’re where child abuse was 30 years ago,” said Dr. Kathryn Locatell, a California-based geriatrician who specializes in diagnosing elder abuse. “I think it’s ageism - I think it boils down to that one word. We don’t value old people. We don’t want to think about ourselves getting old.”

According to the NPR article, chronic understaffing in coroner’s offices and medical examiner’s offices across the country mean fewer autopsies are being performed. Compounding the lack of staffing are funding shortages, an increase in the number of elderly deaths, and systems in most states where physicians can sign off on an autopsy without ever seeing a body.

“I’ve had instances where the physician just doesn’t understand the importance of what they’re writing down,” said Robert Anderson, chief of mortality statistics for the Centers for Disease Control and Prevention. “I’m appalled when I hear that.”

Proponents of more stringent autopsy procedures are calling for independent agencies to help review death certificates.

“If we want to ensure that all death certificates are accurate, there has to be a professional, independent review process,” said Dr. Richard Harruff, chief medical examiner for King County, WA.

Harruff recommends that all coroners check:

  • Stomachs for lack of food, which could indicate malnutrition

“I take the attitude that these are potential homicides,” Harruff said.

According to NPR, nearly one-third of all Americans will be over sixty in the next ten years.

Related Nursing Homes Abuse Blog Entries:

Failing to Report Nursing Home Violence Results in Sanctions Against Facility

Will More Post-Mortem Investigations Help Reveal More Instances of Nursing Home Abuse?

Autopsies May Help Families Determine if Their Loved One Was a Victim of Nursing Home Neglect Or Abuse

Nursing Home's Conduct In Wrongful Death Case Angers Jury---- To The Tune Of $200 Million

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

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

fall cartoon.jpgRecognizing the significant threat that ‘falls’ pose to patients in nursing homes, federal regulations impose a duty on facilities to assess each patient at the time they are admitted (and similarly reassess on a regular basis) to determine the likelihood of the patient is at risk falling and then create a plan of care for the facility to implement to minimize the frequency and severity of any ensuing injury.

Given the significant risk of serious fall-related injuries--- or even death, fall precautions need to be made a priority at all long term care facilities caring for the elderly.  While some fall precautions may be customized to the patient’s indvidual needs, many experts in geriatric care suggest the following common sense precautions at all facilities: 

  • Removing debris from floors
  • Proving staff to assist patients with transfers
  • Utilizing grab bars and other supportive devices
  • Lower bed heights to reduce the chance of an injury from fall
  • Putting mats aside beds to act as a cushion should a patient fall
  • Using alarms on beds and chairs to notify staff when a patient moves

I was reminded how important fall precautions can be when it comes to safeguarding the well-being of the elderly by recently filed wrongful death lawsuit filed following the death of a patient at a Texas nursing home.  The deceased patient’s family initiated the lawsuit against Regent Care Center (Texas) after their loved one died from a head injury sustained after falling from her bed.

In addition to failing to put the woman’s bed in a “low position” and having cushioning mats next to the sides of her bed, the lawsuit also alleges that the staff at the facility inappropriately responded to the woman’s fall by placing her back into her bed where their was a visible injury and the woman complained of pain.

My take:

As a nursing home lawyer, I see many facilities simply ignoring the most basic precautionary fall prevention measures.  While surely these safeguards are critical to each patients well being, I frequently encounter staff working at these facilities with little or no training on how to successfully implement these measures or concerning the post-fall evaluation of a patient

As in the situation discussed above, nursing home staff have a duty to assess and obtain medical care for any patient involved in an injury at their facility.  Given the rapid progression of head injuries, it is absolutely imperative that staff identifies the problem and get the assistance of a physician immediately.  Tragically, in the case of neurological injuries, delay--- or denial is simply an unacceptable reaction to these situations.

Related Nursing Homes Abuse Blog entries:

Nursing Home Abuse: Facilty Allows Patient To Fall 45 Times!

Nursing Home's Post-Fall Care Of Injured Patient Criticized By State Investigators

Another Example Of Nursing Home Negligence: Disabled Patient Falls Down Unsecured Stairway

Some Medical Conditions Virtually Guarantee Elderly Of Falls In Nursing Homes

Suicide Investigation Reveals Nursing Home Ignored Patients Self Destructive Behavior

An investigation into the suicide of a young man at a California nursing home reveals a disturbing situation where a facility obviously ignored the man's mental health needs. 

On February 28, 2011 the patient commit suicide at Verdugo Valley Skilled Nursing and Wellness Center when he discharged a fire extinguisher into his mouth.  While the incident is indeed disturbing, the man had attempted the exact same behavior on three prior occassions at the facility according to a news report in the Glendale Free Press.

The incident resulted in civil fines and against the facility and criminal charges against both the facility and administrator.  The criminal charges were recently filed by State Attorney General Kamala Harris after evidence was produced in a grand jury indictment that indicated that the nursing home continually allowing the man back to their facility when the facility had no experience with mentally ill patients.

My take: 

Too frequently facilities fail to acknowledge that mental illness is indeed a real condition that requires specific types of treatment by trained professionals.  I am glad to see that both the grand jury and the attorney general involved in this matter recognized that the the failing to tend to the mental health of a nursing home patient is no different that ignoring a physical illness in another.

Related:

Nursing center indicted in patient death, By Veronica Rocha, Glendale Free Press, July 12, 2011

Did Nursing Home Patient Commit Suicide With Supplies Left In His Room?

An apparent nursing home suicide is under investigation at Heartland Nursing Home (a ManorCare facility) in Galesburg, IL. Using an oxygen tube and an electrical cord, the patient apparently fashioned a noose and hung himself from a bar on the ceiling which had been installed to help the man reposition himself--- or did he?

While officials investigate this nursing home death, a primary focus of the investigation will center around if this patients death was indeed intentional or a situation where sloppy storage of medical equipment allowed the patient to become entangled--- and eventually strangled to death.

Due to the uncertainly surrounding his death, the Knox County Coroner will be performing and autopsy to help bring closure to this unfortunate event.

As a nursing home lawyer, I certainly hope that this investigation evaluates this patient's mental state both in general and immediately leading up to his death.  Like people in all circumstances, nursing home patients need to be evaluated to determine if they are at risk for suicidal ideations. If needed nursing home staff should implement necessary counseling and safeguards to protect the patient from harming themselves.

Certainly, if this patient was indeed suicidal, i would hope that potentially dangerous items would have been removed from his room and staff would have done a better job looking after the patient to prevent this real tragedy.

Related:

Inattentive Staff To Blame In The Death Of A Nursing Home Patient Who Is Left Unattended On Toilet

Warnings Do Little To Prevent Bed Rail Entrapment

Autopsy planned in death of nursing home resident Galesburg.com June 12, 2011

Will More Post-Mortem Investigations Help Reveal More Instances Of Nursing Home Abuse?

Acknowledging situations where 'accidential' or 'suspcious' nursing home deaths may have gone without any formal investigation, South Carolina officials are considering ways to effectively investigate these situations. 

Under the current system in South Carolina, after a nursing home patient dies from 'natural causes' the body may be transferred to a funeral home without any involvement from the local coroner.  

Given that in many circumstances the determination between natural vs. accidental death is likely to be made by a physician who is employed by the nursing home, some South Carolina coroners are calling for their offices to be notified every time a nursing home patient dies.  

Theoretically, the notification of the coroner would both help confirm the cause of death and trigger an investigation into a suspicious death quickly when the circumstances surrounding the death are both fresh in the minds of the people involved.  For the decedents family, a timely investigation would also help them get some piece of mind as to concerns of poor care or abuse at the nursing home.

Considering that an independent party would be able to make these important determinations regarding the cause of death, I can only believe that this procedural change is a good thing for grieving families and patient care.

Given that many nursing home abuse and neglect cases hinge upon physical evidence-- such as the condition of a decedents body-- I would hope that this policy would effectively root out cases where there indeed been a situation involving mistreatment.  

On the other hand, I would similarly think that many of the nursing homes would be in favor of a shift in policy as a determination as to the cause of death by an independent party would likely help reduce any wrongful allegations of poor care.  

Read more about this suggested policy impacting South Carolina Nursing Homes here.

Related:

Will Proposal Notifying Coroner Following Nursing Home Deaths Help Deter Abuse?

Autopsies May Help Families Determine If Their Loved One Was A Victim Of Nursing Home Neglect Or Abuse

Most Nursing Home Deaths Remain Uninvestigated

Inadequate Staffing Alleged In Wrongful Death Lawsuit Against Nursing Home

A Kentucky nursing home was named in a recently wrongful death lawsuit filed by the widow of a patient who was allegedly neglected at the facility.  Donna Anderson's lawsuit cites inadequate staffing and ongoing deficiencies as the primary reasons for her husband's physical decline and eventual death at Madison Manor nursing home.

According to news reports of the lawsuit, Robert Anderson was at Madison Manor from April 9th through May 22nd of 2009 when he developed an infection on his foot.  The infection progressed to the point that his foot needed to be amputated and eventually contributed to his death.

A jury may eventually hear the evidence relating to the nursing home negligence allegations made against Madison Manor, its corporate owner, it nursing home administrator and other parties.  If found guilty, the lawsuit will seek both punitive and compensatory damages from the nursing home.  Read more about this lawsuit against a Kentucky nursing home here.

Related:

Illinois Nursing Home Lawsuit: Delay In Care Resulted In Leg Amputation & Eventual Death Of Patient

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

Kentucky Moves To Disclose More Information On Nursing Homes To Public

Nursing Home Injury Laws: Illinois

il flag.jpgHard to believe, but since we initiated Nursing Home Injury Laws last year, we have helped many families get the resources they need following an injury or death of a loved one in a nursing home or medical facility.  

Nursing Home Injury Laws, has links and resources related to some of the most commonly encountered nursing home injuries including: medication errors, falls, elopement, sexual abuse and bed sores.

Though many nursing home injury cases involve similar fact patterns, the cases need to be evaluated on an individualized basis, due to the individual state's laws. Over the next few weeks I will focus on the state of nursing home care within specific states as well as the applicable state laws.

As with all state and federal laws, the laws can change rapidly as lawmakers continually tinker with the system.  Therefore, I strongly urge you to consult with a nursing home lawyer, to discuss your legal options before taking any legal action.

Illinois

Number of Nursing Homes: 783

Statute Of Limitations: 2 years

Damage Caps: None

Applicable State Laws: Nursing Home Care Act (210 ILCS 45), Elder Abuse and Neglect Act – (320 ILCS 20)

Illinois Nursing Home News: The Illinois Supreme Court will soon be rendering an opinion whether the family of a deceased nursing home patient is entitled to punitive damages under the Illinois Nursing Home Care Act.  Presently, there is ambiguity as to the applicability of The Act in cases where a patients death was related to willful and wanton conduct on the part of the nursing home.

Related Nursing Homes Abuse Blog Entries Regarding Illinois Nursing Homes:

The Illinois Nursing Home Act & Resident Rights

Chicago Nursing Homes Not Making The Grade

Illinois Nursing Home Settles Lawsuit Involving Multiple Falls Of Resident

Jury Blames Assisted Living Facility For Fall-Related Death Of 99-Year-Old Woman

Perhaps one of the more frustrating aspects of my job is attempting to convey the value of a senior’s life to a defense lawyer, insurance carrier or jurors.  Particularly, when evaluating the value of a nursing home or assisted living case, I find that people generally have a difficult time appreciating the significance of life’s later years.

Sure we can look at seniors and say, “Hey, he’s just an old geezer, maybe he had a another couple of decent years in him?  What’s the big deal if he died today or tomorrow?”

Alternatively, I suggest the value of our later days, months, and years really have more significance and value as many seniors gain a new perspective on life only when seeing the inevitable coming their way.

A Florida jury obviously acknowledged life’s significance when they blamed an assisted living facility for the untimely death of a 99-year-old resident at the facility—yes, that's correct 99! 

The Miami Herald reported that the family of Francis Tremblay was awarded more than $2.3 million in a wrongful death lawsuit against the facility.  In particular the lawsuit centered on the fact that Living Legends Retirement Center (Florida) failed to protect Ms. Tremblay for repeated falls. 

In all, Ms. Tremblay fell almost one dozen times at the facility prior to a fall-related incident, which ultimately claimed her life after suffering from various fractures and cuts. 

While I imagine the defense lawyers for the assisted living facility cautioned the jurors about the fact that Ms. Tremblay far exceeded her life expectancy, the jurors must obviously have been angered by the fact that employees at the facility reportedly expressed their safety concerns regarding the repeated falls to the deaf ears of the facility administrators.

While the award cannot change the care that was provided to Mr. Tremblay, I hope that this award serves somewhat of a reminder that our seniors—even the very senior seniors deserve to be treated with dignity and respect.

Related Nursing Homes Abuse Blog Entries:

Florida Nursing Home Accused Of Abuse

Family Sues Florida Nursing Home For Death Of Wandering Resident

Inspection Report Confirms Unsanitary Living Conditions In Florida Nursing Home

Nursing Home Injury Laws: Florida

Rosenfeld Injury Lawyers: Nursing Home Injuries

Wrongful Death Lawsuit Claims That Assisted Living Facility Failed To Care For Vulnerable Patient

The family of a resident at a Wisconsin assisted living facility has filed a lawsuit against the facility and it parent company, Assisted Living Concepts LTD, in relation to the events leading up to her death in 2010.  In particular, the lawsuit claims that Marilyn Brown was admitted to Cedar Gardens in July, 2008 for assistance with her dementia and repeated urinary tract infections.

Over the course of her stay at the assisted living facility, the staff gradually provided less and less assistance for Ms. Brown's daily living needs.  In addition to lack of daily care, the lawsuit further claims that the staff at the facility failed to properly supervise Ms. Brown which resulted in multiple falls.  It was a fall in December, 2009 that resulted in fractures to her hip and shoulder that lead to Ms. Brown's death shortly thereafter.

Despite Assisted Living Concepts ongoing profitability as a chain of assisted living operators (having more than 34% increases in quarterly profits compared with last year), the lawsuit alleges that the company fails to pass along adequate funds for the facility to hire and train sufficient staff to ensure the safety of its residents.

As a lawyer who commonly represents the elderly in lawsuits against assisted living facilities and nursing homes, I frequently attribute the poor care to the facilities parent company that frequently makes a conscious decision to cutting staffing levels to a bare-boned levels.  I frequently see facilities hiring the least qualified staff and continually paying them far lower wages than they would make in other settings.

Read more about this wrongful lawsuit against an assisted living facility here.

Related:

Assisted Living Fall Leads To Wrongful Death Lawsuit

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

Did Assisted Living Facilities Neglect Result In Patient's Impacted Bowel & Death?

Class Action Lawsuit Against Skilled Healthcare Seeks Damages For Chronic Understaffing Of Nursing Homes

Illinois Nursing Home With Longtime Problems Named In Wrongful Death Lawsuit

A wrongful death lawsuit has been filed by the family of Doris Scharperkoetter in St. Clair County Circuit Court.  The lawsuit alleges that The Lincoln Home and its owner, Weiss Management Group LLC were negligent in the care of Ms. Scharperkoetter during the time she was a patient at the Belleville, IL nursing home.

The lawsuit alleges that the improper care was to blame for a variety of complications such as:

The complications are further blamed for the death of Ms. Schaepperkoetter in January 2010. The lawsuit seeks damages related to medical expenses and pain incurred prior to her death.

The Nursing Homes Abuse Blog has discussed similar problems at The Lincoln Home here.

Ohio Jury Awards Family $1 Million In Nursing Home Fall Lawsuit

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

Family Of Neglected Nursing Home Patient Receives $3.5 Million In Wrongful Death Settlement

The family of a 97-year-old Washington nursing home patient has received $3.5 million under the terms of a settlement related to a wrongful death lawsuit.  The lawsuit stems from neglectful care at Everett Rehabilitation and Care Center over the course of several months in 2007 when staff at the facility failed to provide medical treatment to a man-- whose penis literally deteriorated to the point that his genitalia was nothing more than a wound.

According to documents related to an investigation by the Washington Department of Health, the man was originally admitted to the facility in 2004 in order to spend time with his wife who was already a patient at the facility. In November, 2007 a nurse documented a sore on the man's penis and gave the report to a manager at the facility who failed to take any action or provide any further care.

Further documentation of the man's decomposing genitalia are absent until March, 2008 when the man was transferred to a hospital and the physicians notified the facility that the man's penis was completely gone due to deteriorating skin and wounds.  Two weeks after the man was taken to the hospital he died from complications related to his wounds.

Both in the course of litigation as well as during the review by state inspectors the facility claimed that the man's lack of cooperation with staff to conduct skin assessments was the primary reason why the wounds progressed and went untreated.  Despite the claims, state investigators still determined that the nursing home failed to meet the federal standard of care.

Read more about this nursing home lawsuit against Everett Rehabilitation and Care Center and Sunbridge Health Care Corp. here.

Patient Rights v. Duties of Medical Facilities

Though nursing home patients do have a right to refuse care, facilities need evaluate if the patient is indeed competent to be rejecting care in the first place.  When nursing homes keep both the patient's family and physician updated as to changes in their physical condition, an assessment can be made as to the patient's competency and if the individual can fully appreciate the decisions they are making.

As a nursing home lawyer, I frequently see facilities documenting patients as being uncooperative or refusing treatment when the staff are unwilling to provide necessary care for a patient who may require more care. As we can see from the above case, a patient's unwillingness to cooperate is not always a valid defense by the facility to skimp out on necessary care.

Related Nursing Homes Abuse Blog Entries:

Family Of Neglected Nursing Home Resident Awarded $42 Million By Jury

Lawsuit Claims Nursing Home's Failure To Provide Medical Care For Cancer Patient Contributed To Death

Nursing Home Injury Laws: Washington

Bed Sores: Not Just A Pain In The Butt-- More Like An Uncontrollable Killer

couple in hospitalPressure sores (also referred to as bed sores, pressure ulcers, or decubitus ulcers) are an all too common and painful problem for nursing home residents.  

 

Most pressure sores are preventable and are caused by faulty care where the nursing home or hospital does provide adequate care to prevent and treat bed sores.  Patients vulnerable to developing pressure sores are the elderly, people who are bedridden, and people with diabetes.

 

Pressure sores in nursing homes can be prevented by taking simple preventative measures including: 


  • Turning patients 

  • Using pressure reducing mattresses and pads (pressure relieving devices) 

  • Keeping residents clean and dry 

  • Providing adequate nutrition and hydration 

  • Performing skin checks 

 

Pressure sores can progress into open wounds with damaged surrounding tissue.  As with any open wound, infection can occur, especially when a pressure ulcer has progressed to Stage 4 (skin and tissue is severely damaged, wound is large).  

 

Complications frequently associated with Stage 4 Pressure Sores include: 


  • Bone/join infections (osteomyelitis, the infection spreads into your bones and can cause damage to tissue and cartilage) 

  • Cellulitis (infection of the skin’s connective tissue, spreads quickly and can cause sepsis and meningitis, two life-threatening complications) 

  • Sepsis (bacteria enters your bloodstream, life-threatening condition which can cause organ failure and shock) 

  • Cancer (of the skin’s squamous cells)
  • Death
 

The U.S. Agency for Healthcare Research and Quality analyzed the 503,300 pressure sore related hospitalizations in 2006.  This analysis showed that: 

  • 45,500 hospital admissions had pressure ulcers as the primary diagnosis 
  •  1 in 25 hospitalizations related to pressure sores resulted in death during the admission 
  •  457,000 hospital admissions had pressure ulcers as the secondary diagnosis 
  •  1 in 8 of these admissions ended in death 
  •  Pressure ulcer related hospitalizations also cost more than the average hospital stay ($16,755-20,430 as opposed to about $10,000) and requires a longer hospital stay (13-14 days as opposed to only 5 days) 

The increased mortality rate of patients suffering from pressure sores can oftentimes be attributed to coexisting medical conditions.  Another study found that when nursing home residents suffer from a pressure ulcer that fails to heal, the resident has a two to threefold increase in risk of dying in the six weeks following hospital admission. 

 

The increase in mortality for patients with pressure sores may be complicated by the fact that they may be suffering for other medical complications, research suggests that the number of deaths related to pressure sores is under-reported.  Still, about 60,000 people die each year from complications directly attributable to pressure sores.   

 

Therefore, it is important that long-term care facilities take precautions to help prevent residents from developing a bed sore in the first place.  Maintaining the best possible physical health of a patient includes preventing pressure sores that could lead to serious and even life threatening complications.   

 

Sources: 

Wrongful Death Lawsuit Proceeds: New Court Decision Says Medicare Not Entitled To Portion Of Recovery

A new court decision by the Eleventh Circuit in the matter of Bradley v. Sebelius, 2010 WL 3769132 (11th 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

Wrongful Death Lawsuit Alleges That An Emertus Assisted Living Facilities Gross Neglect Of Dementia Patient Results In Death

window.jpgA wrongful death lawsuit has been filed against Ridgeland Assisted Living (Mississippi) and its parent company Emeritus Corporation following an incidnet at the facility when a dementia patient fell from a second story window.

The lawsuit, filed by the daughter of the deceased resident, claims that despite multiple assurances from the facility, they failed to supervise and provide necessary safguards to keep the 83-year-old safe.

According to the lawsuit (see PDF version below: Diane Phillips individually and on behalf of the wrongful death benefitiaries of Merle Fall v. Ridgeland Assisted Living LLC and Emeritus Corp.), Ms. Fall was admitteded to Ridgeland on February 25, 2010 with known problems related to Alzheimer's / dementia and a history of wandering from home.

Also at the time of admission, Ms. Phillips was assured by an employee of Ridgeland, Ashley Martin, that the facility was capable of safely caring for her mother and the facility would take the necessary steps to keep her mother safe.

Three days later, Ms. Phillips visited her mother to find her in a filthy condition with dirty clothes and was also informed by Ridgeland staff that her mother attemped to climb out of her second story room.  Again, Ridgeland assured Ms. Philips that it was capable of safely caring for her mother and they would take the necessary safeguards-- such as installation of window locks-- to keep her mother safe.

windowlock.jpgDepsite the assurances of safety, Merle Fall fell from a second story window on March 6, 2010-- just weeks after her previous attempt to get out of the window.  Ms. Fall sustained mutiple injuries including: a compound fracture of the left ankle and a subdural hematoma.  On March 9, 2010, Ms. Fall died from her injuries at a nearby hospital.

In addition to seeking compsatory damages of atleast $500,000, the Complaint also seeks punitive damages from each defendant for their reckless conduct in failing to take the necessary safeguards to protect an exceptionally vulnerable senior.

The Complaint is filed by my colleage attorney Philip Thomas.  Interestingly, at the time this lawsuit was filed, this Emeritus facility failed to provide Ms. Fall's medical records as they were obligated to do under Mississippi law when presented with a valid request.

Broken Promises

Too often facilities--- nursing homes and assisted living--- put their census numbers ahead of the patient's well-being.  As Philip does a nice job of articulatinging this lawsuit, he specifically names the Emeritus employee who assured the family that their loved one would be well cared for.

Time will tell, but if the allegations made in this complaint prove to be true, there certainly appears to be circumstnaces necessary to incite a jury to award substantial punitive damages due to both the facilities gross negligence and outward assurances.

Related:

Diane Phillips, individually and on behalf of the wrongful death benefitiaries of Merle Fall, deceased v. Ridgeland Assisted Living LLC and Emeritus Corp. (PDF)

Man Falls From Fourth Floor Window To His Death At Alden Nursing Home

Assisted Living Facility Submits Corrective Plan After Dementia Patient Falls From Window

Admissions Suspended At An Emeritus Assisted Living Facility Following The Discovery Of: Medication Errors, Bed Sores & Falsified Medical Records

Rather Than Improve Poorly Performing Nursing Homes, Why Not Just Re-Categorize Them?

Failure To Properly Treat Surgical Wounds Results In Settlement Of Wrongful Death Case With Nursing Home

The Chicago Tribune reported on a story involving the $2 million settlement of a wrongful death lawsuit involving a patient at a Wisconsin nursing home who suffered complications from improperly cared for surgical wounds.  The patient identified as Cynthia Wilms, was admitted to Willows Nursing and Rehabilitation in 2007 following a hip replacement surgery.  According to the families attorney, the facilities failure to treat the wounds resulted in her death.

Willows Nursing and Rehabilitation is owed by mega-operator Extendicare.

Below is a graph representing rate for surgical site infections from Brigham Woman's Hospital:

hospital infections

My Take:

To me, there's no more moving case than the situation where a healthy person enters a skilled nursing facility for short-term rehabilitation only to begin a rapid spiral of deterioration.  Nursing homes need to remember that just because a person may be health and / or relatively young, they still must provide the necessary care for the person and follow the physicians order-- including the frequency with which bandages need to be changed. 
Facilities need to remember that there really is a reason why the person is at their facility in the first place.  In addition to facility acquired infections, bed sores (also known as: pressure sores, pressure ulcers or decubitus ulcers) remain a real threat for short-term rehab patients.  Particularly in patients with limited mobility, facilities need to implement pressure sore prevention techniques such as regular turning and cleaning of patients.
Related:

Guideline_for_prevention_of_surgical_site_infection (PDF) Infection Control and Hospital Epidemiology, April, 1999

C-Diff Infection Alleged To Blame For Death Of Nursing Home Patient

A recently filed wrongful death lawsuit claims that clostridium difficile, or commonly known as C. Diff, is to blame for the death of a patient in an Illinois Nursing Home

The lawsuit alleges two short-term stays at Helia Healthcare facilities (Helia Healthcare of Energy and Helia Healthcare of Benton) are to responsible for the man's C. Diff infection and development of decubitus ulcers.  It is further alleged that these medical complications contributed to the man's death.

Despite the fact that the man had a prior episode of C. Diff, and was at an increased risk for return of the infection, the nursing homes failed to recognize tell-tale signs of the infection including:

  • Poor appetite
  • Poor fluid intake
  • Diarrhea

It wasn't until the man had long been struggling with signs of the infection did the facility send him to the hospital for treatment. Read more about this wrongful death lawsuit here.

C. Diff and Nursing Homes

C. Diff s a bacterial infection that can cause diarrhea and serious intestinal conditions (such as colitis - inflammation of the colon) and even death.  Though contracting C. Diff may be a relatively common occurrence (there are an estimated 3 million cases reported annually), C. Diff involving nursing home patients is especially problematic due to the fact that many elderly patients have compromised immune systems and are already in a weakened state.

C. Diff bacteria are are contagious and can be passed through the feces of an infected person and can spread to food, surfaces, and objects when infected patients and other nursing home staff do not wash their hands thoroughly.  Proper sanitation techniques such as thorough cleaning and hand washing is crucial in order to prevent the bacteria from getting spread to other patients.  Spores of C. Diff can survive for months unless facilities to a proper job sanitizing patient rooms and common areas such as bathrooms and cafeterias.

Related Nursing Homes Abuse Blog Entries:

Left Untreated, Stomach Aches Can Be Deadly For Elderly Nursing Home Patients

Failure To Monitor Bowel Movements In Nursing Home Patients Can Lead To Impacted Bowels

What is a surviving spouse entitled to in a wrongful death lawsuit against a nursing home?

Spotlight On: Helia Healthcare of Urbana

42 Illinois Nursing Homes Cited In 4th Quarter of 2009 For Violations Related To Patient Care

New Illinois Court Decision Holds That No Punitive Damages Can Be Awarded In Survival Actions Involving Nursing Home Negligence

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

New Court Decision Allows Nursing Home Negligence Action To Proceed Against Facility Administrator

Childs v. Pinnacle Health Care, LLC is a wrongful death and nursing home negligence case that was filed against Pinnacle Health Care, the nursing home corporation, and Carolyn English, its director of nursing. Pinnacle Health Care, LLC is a nursing home located in Waukegan, IL. 

The trial court dismissed with prejudice the three counts against the director of nursing because the allegations were limited to her role as the director of nursing and were premised on the Nursing Home Care Act (210 ILCS 45), which provides that only licensees and owners of nursing homes can be held liable under the Nursing Home Care Act. 

However, the Illinois Second District Appellate Court reversed the trial court’s dismissal of these counts and ruled that the dismissal was improper because the negligence allegations involved professional negligence under the Healing Arts Malpractice Act (735 ILCS 5/2-622) and were independent of the Nursing Home Care Act. 

This case centered on the death of Dorothy Jones, who was a resident of Pinnacle Health Care before her death. Ms. Jones was admitted to nursing home in July 2002 when she was no longer able to walk as a result of her multiple sclerosis. Upon being admitted, Ms. Jones did not suffer from any skin impairments. 

Pinnacle personnel categorized Ms. Jones to be at high risk for developing pressure sores during skin assessments performed between January 2005 and October 2006. Despite this risk assessment, Ms. Jones developed 16 pressure sores during her residency at the nursing home. 

In October 2006, one of Ms. Jones’ pressure sores became seriously infected and began bleeding, requiring her to be transferred to a nearby hospital. The hospital documented her injuries as follows:

  • A sacral pressure sore that was so large, deep, and infected that liquid stool was seeping out of her vagina
  • A scalp pressure sore that appeared to reach down to the skull
  • A left leg pressure sore that exposed her tendons
  • Pressure sores on her ears, which exposed cartilage. 

Also, prior to Ms. Jones’ transfer to the hospital, she had developed multiple severe urinary tract infections, symptoms of recurrent infection, and severe respiratory problems. Ms. Jones died from respiratory failure on October 6, 2006, only two days after being admitted to the hospital. 

Clearly, to say that Ms. Jones suffered from nursing home abuse and neglect is an understatement. Pressure sores are very serious and, in most cases, preventable.  How the nursing home and its personnel allowed her to develop pressure sores in the first place and their subsequent failure to treat them is unacceptable and horrifying. This case at least makes it possible for all responsible parties to be held liable: the nursing home corporation, and more importantly, the director of nursing in her professional capacity. 

Sources:

Illinois Courts: Childs v. Pinnacle Health Care, LLC

Illinois State Bar Association: Childs v. Pinnacle Health Care

Illinois General Assembly: Nursing Home Care Act (210 ILCS 45)

Illinois General Assembly: Healing art malpractice (735 ILCS 5/2-622)

Nursing Home Injury Laws Establishes Itself As A Trusted Resource For Families Seeking Information Regarding Their Legal Rights

Since its inception, Nursing Home Injury Laws has become a trusted resource for caregivers and families seeking reliable information in a time of need.  Nursing home injury laws provides a comprehensive compilation of state-by-state nursing home contacts, a glossary for common legal terms, resources and legal information should the need arise.

In addition to important links to important developments within each state, Nursing Home Injury Laws provides has important information on the following commonly encountered nursing home injuries:

Continue to check out Nursing Home Injury Laws on a regular basis as more information continually gets added.

Nursing Home Injury Laws

In times of need, locating necessary information regarding the legal rights and resources for nursing home patients can be difficult and imposing.  In this respect, we are proud to introduce a new resource for patients, families and practitioners looking for a concise compilation of information regarding nursing home laws.  Nursing Home Injury Laws, provides every states':

Additionally, we will be posting regular updates regarding important developments relevant to nursing home care within each state.  Here is a link to Nursing Home Injury Laws.

Improper Drug Dosage, Wrong Medication, Interactions With Other Drugs.... May Be The Result Of Pharmaceutical Malpractice

Prescription drugs are invaluable tools in the practice of medicine, used to treat numerous illnesses and diseases. However, prescription errors can result in serious injury and death. In the United States, about 1.5 million preventable adverse drug events occur every year.

Pharmaceutical malpractice can occur when a doctor prescribes the wrong medication or incorrect dose or when a pharmacist fills the wrong medication or dosage. The National Coordinating Council for Medication Error Reporting and Prevention (NCC MERP) defines a medication error as:

"A medication error is any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health care professional, patient, or consumer. Such events may be related to professional practice, health care products, procedures, and systems, including prescribing; order communication; product labeling, packaging, and nomenclature; compounding; dispensing; distribution; administration; education; monitoring; and use."

These pharmaceutical errors can result in serious health complications including allergic reactions, organ damage caused by an overdose, infection, stroke, heart failure, and even death. Doctors and pharmacists must follow strict regulations in order to prevent mistakes. In Illinois, the Pharmacy Practice Act (225 ILCS 85) regulates the practice of pharmacy in Illinois. 

Types of Pharmaceutical Errors

  • Adverse Drug Side Effects
  • Incorrectly Filling A Prescription
  • Incorrect Labeling
  • Incorrect Dosage
  • Drug Interactions
  • Incorrect instructions regarding usage

Drug Side Effects

Many prescription medications have serious side effects that should be considered before taking them. Some serious and common side effects include: allergic reactions, heart problems, liver and kidney failure, weight gain/loss, and psychological effects. The doctor prescribing your medication should consider the pros and cons of prescribing the medication as opposed to leaving the condition untreated or prescribing a different medication. 

When considering whether to prescribe a drug with serious side effects, the doctor should consider your full medical history and information to determine whether you can handle the side effects. Also, when filling a prescription order, pharmacists have a duty to advise you about any side effects that might accompany the use of the prescription medication. 

Incorrect Prescription

Medication errors can result when there is a miscommunication of drug orders. This can involve poor handwriting, confusion between drugs with similar names, misuse of zeroes and decimal points, confusion of metric and other dosing units, and inappropriate abbreviations. As many people know, doctor’s handwriting is often times little more than a scrawl or scribble. 

Doctors must take reasonable care in correctly and accurately writing prescriptions. One way to reduce the chance of prescription errors is to use electronic prescriptions, removing the risk of errors associated with poor handwriting. However, mistakes can still occur when a doctor types in the wrong prescription order. Therefore, doctors should take extra care when prescribing medications to ensure that no transcribing errors have occurred. 

Medication errors can also occur when doctors take incomplete patient information. For example, the doctor might not know about the patient’s allergies, any other medications the patient is taking, previous diagnoses, and lab results. Doctors perform best when fully informed about the patient’s history and information. Doctors should ensure that they have a patient’s complete and up to date information before prescribing medication, in order to cut down on medication errors

Incorrect Labeling

Pharmacists must ensure that medications have correct labels before selling them to patients. Prescription medication labels should include the name of the drug it contains, the amount to be taken, the time of day to take the medication, and any warnings while taking the drug. When prescription medications are labeled incorrectly, you may end up taking the wrong drug, the wrong dose, the wrong time, or be unaware of warnings about what foods, beverages, or activities to avoid while taking the drug. 

These mistakes can result in serious complications including liver or kidney damage or death or not receiving the full benefit of the drug’s intended purpose. Even when pharmacists include the correct information on the label, they should go over the recommended dosage, procedures, and warnings to ensure that you understand how to safely and correctly take the medication. This is especially important with older adults who may be unable to read the label.  

Incorrect Dosage

Prescription medications have more serious dangers associated with them than over the counter (OTC) drugs. Therefore, it is important that pharmacists issue the correct drug (the one the doctor prescribed) at the correct dose. Errors in filling prescriptions can result from similar-looking pills, difficult to read physician handwriting, and rushed work at pharmacies. Pharmacists must exercise reasonable care when filling each and every prescription order to ensure that you receive the highest standard of care and avoid injury. 

In Illinois, registered pharmacy technicians may, under the supervision of a pharmacist, assist in the dispensing process, offer counseling, and receive new verbal prescription orders (225 ILCS 85/9 – Registration as pharmacy technician). Depending on the pace of business at the pharmacy, these pharmacy technicians might not receive proper supervision to ensure the highest standard of care. 

These mistakes can also cause serious medical complications, either because you take too much or too little of a drug or even taking the wrong drug. Many prescription medications treat serious illness and disease, and besides the risks associated with taking the wrong drug or the wrong dose, are the risks associated with not treating the illness or disease that prompted your doctor to give you a prescription in the first place. 

Adverse Drug Interactions

Many people, especially older adults, take multiple prescription medications, which are commonly prescribed my multiple doctors. However, problems can occur because the doctors prescribing these medications might not know about the other drugs you are taking. 

This can lead to serious complications stemming from drug interactions. Drug-drug interactions are not the only type of potentially dangerous drug interactions; there can also be drug interactions with foods, beverages, and dietary supplements. 

There are three main types of drug interactions:

  • Drugs with food and beverages
  • Drugs with dietary supplements
  • Drugs with other drugs

Drug interactions can reduce the effectiveness of drugs, cause unexpected side effects, or increase the action of a particular drug. Drug interactions with food and beverages might result in delayed, decreased, or enhanced absorption of a medication. Dietary supplements can also cause a variety of drug interactions, and with fifty percent of American adults using dietary supplements (vitamins, minerals, amino acids, herbs or botanicals) on a regular basis, the risk of negative drug interactions is high. 

For example, St. John’s Wort can reduce the concentration of medications in the blood; Vitamin E can increase anti-clotting activity and cause increased risk of bleeding when taken with blood-thinning medication; Ginseng can enhance the bleeding effects of aspirin and ibuprofen; and Ginkgo Biloba can decrease the effectiveness of anticonvulsant therapy. Drug-drug interactions can cause adverse drug reactions. 

The rate of adverse drug reactions increases significantly when a patient is on four or more medications. This is especially worrisome because almost 40% of Americans receive prescriptions for four or more medications. 

Because pharmacists fill prescriptions issued by multiple doctors, they are in the best position to catch potentially harmful drug interactions. However, some people use more than one pharmacy for their drug needs. Therefore, in order to avoid problems with drug interactions, you should use one pharmacy for all of your medications and keep a record of all prescription drugs, over the counter (OTC) drugs, and dietary supplements that you take. 

Nursing home staff must take extra precautions when distributing new prescription medications to nursing home residents. Many nursing home residents are on multiple medications for a variety of physical and mental conditions that are best treated with prescription drugs. These residents might be under the supervision of multiple doctors, and it is the nursing home’s responsibility to ensure that the doctors are aware of all the resident’s medications and changes in condition in order to avoid serious medical complications. 

Physician & Pharmacists Duty To Use Reasonable Care

Pharmacists and doctors have a duty to exercise reasonable care in prescribing and filling prescription drugs. When this duty is breached, serious injuries and even death can occur. Elderly adults are particularly susceptible to injuries stemming from pharmaceutical medication errors because many older adults take multiple medications. Furthermore, many older adults see multiple doctors for specialized care to treat specific injuries or illnesses. 

The increased number of prescription drugs and multiple drug providers can increase the likelihood for a pharmaceutical error. Older adults are also less able to prevent pharmaceutical errors because they might be less able to read the labels and warnings, be less able to understand the medication labels, and might be unable to provide doctors with a complete list of medications or medical information. Many older adults, especially those in nursing homes, rely on other people to fulfill their prescription needs. Therefore, additional care and caution must be taken when prescribing medications to older adults, especially those who rely on nursing home staff for medications and activities of daily living. 

If you or a member of your family has suffered injury because of a pharmaceutical error, you can bring a pharmaceutical malpractice or negligence action. In addition, if the worst occurs and the pharmaceutical malpractice results in the death of a loved one, you may also be entitled to bring a wrongful death action

Speak to our experienced pharmaceutical error lawyers about your case for free today.  Nationwide service.  (888) 424-5757

Resources:

FDA: Avoiding Drug Interactions

National Coordinating Council for Medication Error Reporting and Prevention

Adverse Drug Event Reporting: The Roles of Consumers and Health-Care Professionals

Illinois General Assembly – 225 ILCS 85/9 Registration as pharmacy technician

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Family Claims Assisted Living Facilities Neglect Resulted In Death Of Mentally Disabled Woman

The family of a 51-year-old woman with cerebral palsy has brought a lawsuit against the assisted living facility where she was a patient.  The lawsuit alleges that Country Crossing Assisted Living Facility (Georgia) failed to properly care for the mentally disabled woman during the course of her four year stay and intentionally hid her physical condition from her family.

The wrongful death lawsuit alleges that the assisted living facilities neglect resulted in severe malnourishment and advanced pressure sores.   Quoting a nurse who used to work at the facility, the lawsuit further alleges that the facility failed to train new employees and keep records related to the patients medical treatment.

A Georgia jury will soon decide if the allegations of poor care are indeed true as the case is set to go to trial in the Walker County Courthouse.  Read more about this lawsuit against a Georgia assisted living facility here.

My take on this lawsuit:

As a personal injury lawyer who is involved in many cases involving claims against nursing homes and assisted living facilities, I imagine that this assisted living facility will claim that the woman's family failed to properly look after her.  While this claim may seem cold-hearted (and it is), jurors typically have a difficult time awarding money to an estranged family.  

Litigation issues aside, I strongly believe that patients receive superior care when their family actively participates in their care and visits on a regular basis.  Like it or not, staff notice a families presence and tend to provide more care to the patients with an active group of visitors.  

Related Nursing Homes Abuse Blog Entries:

Despite Their Avoidability, Bed Sores Continue To Plague Nursing Home & Hospital Patients In All Demographics

Grim Details Emerge Regarding Malnutrition In Kentucky Nursing Home

Wrongful Death

Wrongful Death Lawsuit Claims Nursing Home Negligently Administered Allergy Inducing Drugs To Patient

The Estate of a deceased nursing home patient has filed a wrongful death lawsuit against the facility where she died and other parties who allegedly contributed to her death.  The crux of the lawsuit alleges that the staff and physicians at the nursing home failed to note the woman's allergy to medications containing Sulfonamide, a common ingredient in antibiotic medications such as Bactrim.

After the the staff at the nursing home began administering Bactrim, the woman began to experience a severe reaction on her skin.  According to the lawsuit, 

"the plaintiff's decedent sustained a severe reaction to the administration of Bactrim, D.S., she developed multiple large open areas in the skin over large portions of her body, portions of her skin sloughed off; the skin over her entire body became 'tented' and she developed red blistering over the back of her neck and back and she developed toxic epidermal necroysis, causing her skin to slough off, she lost 55% of her active skin, she had a positive Nikolsky sign, she had whole body erythema, lesions, blistering and sloughing"

The lawsuit has been filed against 17 different defendants, including Atrium Health Care and Rehabilitation Center in St. Clair County Circuit Court (Illinois).  The lawsuit seeks $1.9 million.

Toxic epidermal necroysis following the administration of Bactrim?

Sounds like this woman was suffering the effects of Stevens Johnson Syndrome.  Stevens-Johnson Syndrome (“SJS”) is a systemic disorder that affects the skin and mucous membranes, usually caused by a severe drug reaction.

SJS often begins with flu-like symptoms (fever, sore throat, cough, burning eyes), then progresses to red or purple rashes and blisters (photos), especially around the mouth, nose, eyes. These symptoms eventually lead to skin sloughing (the shedding of the top layer of skin) because of cell death. Some patients with extreme cases of SJS appear as though they were severely burned due to the extensive skin loss.

Although at least from the allegations in the complaint, this facility failed to note this woman's allergies, I'm sure they also failed to monitor the severe skin reaction and notify the woman's physician about the change in her condition. 

Read more about this wrongful death lawsuit here.

Related:

Medications Commonly Prescribed To Nursing Home Patients May Cause Stevens Johnson Syndrome

Lawsuit Claims Nursing Home's Failure To Provide Medical Care For Cancer Patient Contributed To Death

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

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

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

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

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

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

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

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

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

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

Related:

Settlement For Neglected MS Patient With Bedsores

Failure To Clean Trach Tube Leads To Lawsuit

Are nursing home patients protected under federal law?

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 report issued by the Minnesota Department of Heath has cited White Community Hospital and Nursing Home (Minnesota) for errors made by a nursing assistant during the transfer of a patient out of her bed.  

The incident occurred when the CNA attempted to transfer a disabled patient from their bed to a wheelchair using a sling. During the transfer, the patient was dropped.  The patient suffered a broken arm and leg which contributed to their death two days later.

Specifically, the department of Minnesota health report and the facilities own investigators determined that the CNA's errors caused the patient's injuries and subsequent death.  In particular, the CNA  and nursing home failed to:

  • Use two-person lifting technique
  • Properly train staff
  • Develop and follow a comprehensive 'care plan' for the patient

Laura Ackman, the nursing home's CEO called the patient's death, "an unfortunate accident, and we regret it very much."  According to Ackman, the facility took immediate corrective action, including staff training and the purchase of new equipment.

Certainly, from the information we know about this incident, it appears that the family of this nursing home patient would have a strong case against the nursing home should they wish to pursue a wrongful death case against them.  

I applaud the facility for taking corrective measures following this incident. Nonetheless, it sounds as though the root of the problem is related to under-staffing.  

Despite federal regulations that require nursing homes to have certain 'minimum staffing levels', many facilities simply do not have adequate numbers of staff to provide quality care for their patients.  In the situation discussed above, I am certain that a closer examination of the situation would reveal that there simply was inadequate staff around to assist him or her with lifting the patient.

At a minimum, federal law requires nursing homes to have: at least one RN for at least 8 straight hours a day, 7 days a week, and either an RN or LPN/LVN on duty 24 hours per day.

Resource:

N. Minn. nursing home contributed to death of resident, report says, Statrtribune.com, October 9, 2009

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

Nurses Admit To Problems At Nursing Homes

Minimum Nurse Staffing Ratios

Autopsies May Help Families Determine If Their Loved One Was A Victim Of Nursing Home Neglect Or Abuse

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:

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

Related Nursing Homes Abuse Blog Entries

Autopsy Confirms Man Was Murdered In Chicago Nursing Home

Medical Examiner Rules Tennessee Nursing Home Death A Homicide

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

Bed Sore FAQ: Wrongful Death

Failure To Monitor Bowel Movements In Nursing Home Patients Can Lead To Impacted Bowels

 

In addition to monitoring food and liquid intake of nursing home patients, staff need to pay attention to the elimination of the wastes.   When urine and feces are not produced on a regular basis, nursing home staff must bring these problems to the attention of physicians.

One of the more obvious cases of nursing home neglect my office is working on involves a patient who went at least 10 days without a bowel movement.  Shift after shift of nursing home staff tended to our client-- yet no one cared enough to look at his medical chart to see when the last bowel movement occurred.  It was not until the man was taken to a local hospital, was it determined that the man's bowel had become impacted with feces.  Within 24-hours of his admission to the hospital, the man died from complications related to sepsis.

What is an impacted bowel?

An impacted bowel is the condition where feces are trapped in the lower part of the large intestine, causing a waste obstruction. The stool collects in the bowel and becomes hardened. This hard stool can irritate the rectum, resulting in the production of mucus and fluid which can leak, causing fecal incontinence

One of the most common symptoms is lack of appetite, caused by pressure on the abdomen. Hemorrhoids (a mass of dilated veins in swollen tissue around the anus) are a common sign of impacted bowels because it is more difficult to rid your body of fecal matter. Other symptoms include: a constant feeling of fullness; diarrhea; hardened feces; cramping and pain; vomiting; constipation; bad breathe; and bloating. If left untreated, the waste obstruction can cause a rectal infection that can lead to sepsis (also referred to as: severe sepsis, sepsis infection, septic shock, severe sepsis, septicemia) or death

The most common cause of impacted bowel symptoms is Crohn’s disease.  In a nursing home setting, causes of impacted bowel include: not drinking enough water; not eating a diet with adequate fiber; lack of activity; certain prescription medications and generally unhealthy diet with high fat and processed foods.

When timely identified, impacted bowels can be treated with a higher fiber diet, increased hydration, exercise, laxatives, enemas, suppositories, or manually removing the hardened feces.

Unfortunately, many nursing home patients are highly susceptible to impacted bowels due to a combination of inattentive staff and an unhealthy lifestyle.  In order to minimize the chances of impacted bowels among patients, nursing homes should:  

  • Provide the residents with proper nutrition (sufficient fiber, water, and healthy foods), the residents can suffer from painful constipation. 
  • Provide as much physical activity as feasible for patients.
  • Monitor each patients bowel movements (time, quantity, consistency)  
  • Pay special attention to patients complaining of stomach pain or cramping

Resources:

Article Click - Fecal Impaction vs. Constipation

The association of fecal impaction and urinary retention in elderly nursing home patients

Annals of Internal Medicine – Incontinence in the Nursing Home

Fall From Bed Results In Death Of Newly Admitted Nursing Home Patient

I've noticed a trend amongst many nursing home negligence cases-- injuries occur at a disproportionately high rate within the initial admission period.  The most reasonable explanation for the heightened rate of nursing home injuries in during the initial admission period is most likely related with both the facilities unfamiliarity with the patient and vice versa. 

Nonetheless, a facility that claims they were 'simply unfamiliar' with a patient is probably a poor defense if a negligence claim were pursued.  Even before a care plan is developed, nursing homes must take reasonable steps to provide the highest feasible level of care for their new patients.  

In order to facilitate a smooth and safe transition to the nursing home, caregivers and family should make the needs of their loved ones known to the staff at the facility.  Providing the following information can be a valuable part of a transition:

  • Provide staff with realistic assessment of the individual of assistance
  • Let staff know about a sleeping and eating schedule
  • Provide the facility with a list of all medications
  • Provide staff with contact information for all physicians
  • Let facility know of specific health concerns

Along the lines of injuries shortly after an admission, on June 13, 2009, a resident fell out of bed and later died at Fejervary Health Care Center in Davenport, Iowa.  This fall occurred within 24 hours of the resident being admitted to the nursing home. 

Fejervary Health Care Center has a history of problems and has been fined several times by the Iowa Department of Inspections and Appeals. Last year, the nursing home was fined $7,500 for failing to ensure that each resident received adequate supervision to ensure against hazards from self, others, or environmental elements, and allowing a resident who was an elopement risk to elope from the facility. 

According to the government’s Medicare website, the facility received one out of five stars, which is a much below average rating.  In the past year, the nursing home had sixteen health deficiencies, which is eight more than the average number of health deficiencies in both Iowa and in the United States.  Also, the number of health deficiencies in the past year is twice the number of deficiencies in the previous year. 

Following the June 13 fall and death of the resident, the Iowa Department of Inspections and Appeals conducted a complaint inspection on June 29, resulting in a $6,000 fine.  The inspection concluded that the nursing home facility failed to provide accurate assessments and timely intervention for a resident who experienced a fall and had a change in condition. 

The resident was admitted to the nursing home on June 12 at 12:10 pm.  During the initial interview with nursing home staff, both the resident and the resident’s spouse informed the staff that the resident had a recent history of falls at home.  Nursing home staff established an individual care plan to help prevent falls.  The plan included reminding the resident to use the call light, a bed alarm, and a body alarm.  At 9:00 pm that night, the resident’s alarm sounded as the resident tried to get out of bed unassisted.

Then, in the early hours of June 13, an alarm was sounded and nursing home staff found the resident on the floor, wet with urine.  The staff member who responded noted a skin tear on the back of the resident’s hand.  After applying a dressing to the resident’s hand, the resident was helped back into bed and was under constant supervision for the rest of the shift.

In an interview with the Iowa Department of Inspections and Appeals, nursing home staff reported that the resident had fallen head first and hit their head.  However, the staff member did not tell the nurse that the resident had hit their head.  The staff members asked the resident whether the resident was hurt and checked mobility.  The staff did not check the resident’s pupils or perform neurological checks and could not remember whether the resident had been asked about whether the resident had hit their head.  Staff members did check the resident’s vitals, but only at the time of the fall.

Following the fall, the nursing home staff failed to inform the resident’s physician that the resident had suffered from a fall, even though the staff frequently contacted him for issues much less severe than a fall. 

The staff reported that the resident seemed fine going about the day’s activities (eating breakfast, taking medication, talking with other residents, and using the restroom).  Later that morning, the resident complained of hip pain and was given pain medication without an assessment.  Shortly thereafter, the resident’s family members noted that the resident became agitated and complained of a headache.  The resident then became unresponsive and was taken to the emergency room. 

The doctor stated that the resident might not have been able to be saved even if the resident’s physician had been contacted at the time of the fall; however, the physician did not even have a chance to try to save the resident’s life since he was not contacted. 

The hospital’s clinical summary documented the discharge diagnosis - severe subdural hematoma (bleeding in the brain), fever, hyponatremia (low sodium level in the blood), and microcytic anemia.

The Iowa nursing home had an obligation to report any change in condition to the resident’s physician in order to help prevent further injury and even death as was the case here. In addition, the nursing home staff is responsible for providing accurate assessments of resident health, especially after a fall so proper care and treatment can be provided. 

Sources:

Quad-City Times – Nursing Home Fined After Resident’s Death

Iowa Department of Inspections and Appeals – Fejervary Health Care Center

Iowa Department of Inspections and Appeals – 6/29/09 Inspection Report

Medicare – Fejervary Health Care Center

Related Nursing Homes Abuse Blog Entries:

Nursing Home Falls

Assisted Living Fall Leads To Wrongful Death Lawsuit

Lexington Care Center Named As Defendant In Case Involving Multiple Falls

Family Sues Florida Nursing Home For Death Of Wandering Resident

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 at this Florida Nursing Home here.

McHenry Nursing Home Hit With $360,000 In Fines

The Chicago Tribune reported that the Woodstock Residence received nearly $360,000 in fines related to five suspicious deaths at the facility.  The facility has been in the headlines in the past for the for intentionally giving high does of medication to elderly patients. Originally labelled an 'angel of death' for the staff's sympathy towards suffering patients, new information has been released related to the intentional medication over-dosing at the facility in an Illinois Department of Public Health investigative report.

The report demonstrates that the staff at the Woodstock Residence intentionally drugged residents to turn them into unresponsive zombies and make the nurses jobs caring for them easier.  The report also shows a more malicious side to the nursing staff's care. 

"She won't make it through the day," Marty Himebaugh, 57, allegedly told a co-worker in reference to a restless patient, according to a 130-page IDPH report. "I made sure of that."  Himebaugh, a licensed practical nurse at the Woodstock Residence, was fired Oct. 31, 2006, at the suggestion of Illinois State Police, who were investigating the suspicious deaths, the report stated.

The state report also refers to a man in his mid-50s with Down syndrome who died in April 2006, and it quotes Himebaugh as telling a co-worker: "Those people aren't meant to live that long. They are meant to die in their teens and I'm going to help him along."

In April Himebaugh and Penny Whitlock, the former director of nursing at the facility were charged criminally for the their behavior.  The two face a variety of charges including: endangering the lives of their residents, criminal neglect of a long-term care residents, obtaining morphine by fraud, unlawful distribution of a controlled substance and obstruction of justice.  State prosecutors did not believe there was enough evidence to prove the nurses intended to kill the patients.  The duo await trial after pleading not guilty to the charges.

The Woodstock Residence was fined a record $300,000 by the state of Illinois and $57,350 by the federal Centers for Medicare and Medicaid Services.  According to The Department of Public Health the most serious violations involved the use of "chemical restraints"—drugs used to sedate patients. State law prohibits using drugs to discipline nursing home residents or as a staff convenience.

Renamed the Crossroads Care Center of Woodstock in December and owned by a limited liability company of the same name, the nursing home is appealing the fines according to its attorney.  The nursing home also faces wrongful death lawsuits filed by the families of the deceased residents.

Medication overdoses are a common problem in nursing homes.  Generally thought to be a tragic mistake, this case should cause people to step back and evaluate is the overdosing is really an intentional act with a deadly intent.  Am I so skeptical to think that this is not an isolated incident.

Wrongful Death

I have used the term 'wrongful death' in many posts and was asked recently: What exactly does wrongful death consist of?   'Wrongful death' is usually associated with a legal cause of action on behalf of the person who died but also on behalf of the people close to the deceased who depended on the person both economically and emotionally.  A 'wrongful death' lawsuit is usually brought by a family member or person close to the deceased.  Many states have statutes on point as to who may bring a wrongful death lawsuit.  The Wrongful Death Act in Illinois is codified at 740 ILCS 180.

How much are you going to sue for?

Is a question frequently asked by clients in filing a wrongful death lawsuit.  The question of course goes to the damages sought in the lawsuit, and the answer is usually anything but straightforward.  Most states, such as Illinois, require the lawsuit to seek damages in excess of the jurisdictional minimum.  In other words we do not ask for a specific amount when filing most lawsuits.  We ask a jury or judge to actually determine the amount of damages based on the evidence we present.  In wrongful death cases damages usually consist of: medical bills, burial expenses, lost wages and pain and suffering experienced by the survivors.  Expert testimony is typically required to help establish damages in wrongful death cases.

How long do I have to bring my case?

A statute of limitations is the time allotted to bring a cause of action.  Each state has different statute of limitations for different causes of action.  In Illinois, generally have 2 years from the date of the incident to file a lawsuit.  This statute applies to both nursing home negligence and wrongful death cases.  If you do not bring a lawsuit within the prescribed time requirements, you forgo your right to recover forever.  

If you believe that you have a wrongful death lawsuit or nursing home negligence case, feel free to contact me to discuss the matter.  The consultation is free and is kept in strict confidence.

Resource:

Nursing Home Injury Laws

About Jonathan Rosenfeld

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Jonathan Rosenfeld is a lawyer who represents people injured in nursing homes and long-term care facilities.   Jonathan has represented...

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