South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Coalition for Quality Care

Posted in Advocacy, Regulatory enforcement, Trial themes

The Coalition for Quality Care is an umbrella organization of Long-term Care Citizen Advocacy Groups (CAGs) working together to strengthen our individual groups throughout the nation, to share information among them, to enable those groups to work across state lines, to coordinate efforts, and to speak and take action on both state and national levels with one voice.

CQC Issues Press Release:

The Coalition for Quality Care (CQC) called for tougher nursing home enforcement today after a new analysis of federal dataindicated that 44% of US nursing homes were permitted to continue to take in new residents – and receive public funds – despite having repeat violations of the same quality of care standards three years in a row. CQC is a national coalition of state and regional organizations, each of which is dedicated to improving long term care.
CQC, in collaboration with Coalition member Voices for Quality Care, conducted this analysis – which we believe is the first of its kind – using federal inspection records collected by the Center for Medicare and Medicaid Services (CMS).  “Unfortunately, this analysis confirms our collective experiences with nursing homes across the country,” said Richard Mollot, president of CQC,  “Far too many people live in facilities where abuse and neglect continue year after year, with little or no effective intervention by regulators.”

While federal and state databases currently offer residents and families a snapshot of nursing home information—such as staffing hours, inspection scores, and quality measures—this analysis aggregates historical inspection data to identify those nursing homes that habitually violate the same minimum federal standards year after year.

“We hope that state leaders, regulators and attorneys general, as well as CMS, will use these data to identify and address persistent failures to protect nursing home residents, said Mollot. “Problems should not be allowed to persist and fester.  The fact that so many nursing homes have the same quality of care deficiencies year after year should be a wake-up call to everyone concerned about the safety of nursing home residents, no matter the use of public funds on services that are worthless or harmful.”
For more information, including the data analyses for each state (listing nursing homes with three-year repeat deficiencies), visit

CQC’s major areas of focus include:

  • Bringing Long-Term Care Citizen Advocacy Groups together to advocate for responsible public policies and practices that improve the quality of care and the quality of life for individuals needing long-term care services both nationally and in all states.

  • Promoting and supporting Citizen Advocacy Groups

  • Developing new Citizen Advocacy Groups in states that do not currently have them.

  • Encouraging high, universal standards relating to services, staffing, individual rights, choices of care, location of care, and other important aspects of long-term care;

  • Ensuring strong enforcement and oversight systems on federal and state levels to protect people receiving long-term care services and to assure quality in the delivery of those services


The Peachtree Center Sold

Posted in Choosing a nursing home

My hometown paper, The Spartanburg Herald, reported the sale of Cherokee County’s nursing home to MFI Healthcare LLC for $9 million.  The funds received from the sale of the facility would be set aside in a savings account, allowing the county to keep taxes low.  The Cherokee County nursing home is commonly referred to as The Peachtree Center.

Peachtree Centre Administrator Cindy Matthews said the facility provides skilled nursing, short-term rehabilitation and assisted living for residents. The county has owned the facility since 1973 when it started with 44 skilled nursing beds, Matthews said. Currently, 100 of the 111 beds at the facility are filled.

Matthews said the facility’s annual budget is $8 million, which includes funding through Medicaid, Medicare and private insurance. Matthews said once the sale is finalized, employees at the center will be evaluated during a 60-day period to determine whether they will keep their jobs.

Matthews said MFI Healthcare plans to continue operating The Peachtree Center as a skilled-nursing home facility. County Administrator Holland Belue said the sale will be finalized after paperwork is filed with the state Department of Health and Human Services and state Department of Health and Environmental Control.

“You put your loved one in there and you expect them to be taken care of.”

Posted in Abuse and Neglect, Advocacy, Pressure or decubitus ulcers, Regulatory enforcement, Staffing, Trial themes

The Indy Channel and Call 6 reported the tragic case of Tim Johnson. Navy Veteran Johnson died in a Columbus hospital Oct. 11, 2014, at the age of 43 as a result of sepsis and cardiac arrest after spending four years at the Seymour Crossing nursing home operated by American Senior Communities.  See Police investigating possible neglect at nursing home.  Tim Johnson battled rheumatoid arthritis and other health issues.

State inspection reports and police records obtained by Call 6 Investigates raise questions about whether the nursing home neglected Johnson.  Following the death of Johnson, the Indiana State Department of Health/federal Centers for Medicare & Medicaid Services (CMS) conducted an investigation and inspection at Seymour Crossing on November 3, 5 and 6, 2014.

The report shows on October 4, a staffer went to check on Johnson and found him lethargic, disoriented, whimpering and saying ‘please.’  Johnson ended up in the hospital with bed sores and wounds on his body.  The Intensive Care Unit nurse at the hospital noted Johnson was unkempt, unclean and had a very strong smell. “(The right arm dressing) was saturated and foul…smelled like it had been there a while and we were all wearing masks,” an ICU nurse told investigators. Johnson’s family took pictures of the wounds, too graphic to show, including one on his right arm so deep it went down to the bone and muscle.  Johnson developed an infection complication known as sepsis, went into cardiac arrest, and was taken off life support at the age of 43.

“You put your loved one in there and you expect them to be taken care of,” said Rebekah Klaus, Johnson’s sister.  Klaus tries to remember her brother, a Navy veteran, for how he lived, not how he died.  “He loved his daughter, he loved his family, he loved animals, he loved life in general,” said Klaus. “He couldn’t walk, that’s the reason he was at the Crossing,” said Klaus. “His knees wouldn’t go.”  “I have cried every single day for a year,” said Klaus. “I still look at those pictures. I still go out to that graveyard every day and it haunts me.”

The state/federal investigation found Seymour Crossing failed to provide necessary care and services, and noted a deficiency in “Provide Care/Services for Highest Well Being.”  Seymour Crossing paid $7,897.50 in fines in 2014, according to CMS, however the fines were not connected with the death of Tim Johnson. The fines were related to a prior inspection at Seymour Crossing that found four deficiencies including failing to maintain an odor free environment and failing to respect the dignity of patients.


Waiver of Jury Trial Must Be Explicit

Posted in Arbitration

Nursing home arbitration agreements are among the most unpopular arbitration agreements around.  Last week, Kentucky’s Supreme Court issued a lengthy, but fractured, opinion, finding three arbitration agreements were never validly formed because the signing parties did not have authority to give up the decedent’s constitutional right to a jury trial.  Extendicare Homes, Inc. v. Whisman, ___ S.W.3d___, 2015 WL 5634309 (Ky. Sept. 24, 2015).  A family member must have an explicit right to waive a long-term care resident’s right to a jury trial when signing an arbitration agreement, otherwise it cannot be enforced, the Kentucky Supreme Court has ruled.

The Supreme Court ruling concerned three personal injury and wrongful death lawsuits filed against nursing homes by relatives or representatives of residents who had died in the facilities.  In those cases, the court ruled, the arbitration agreements were not enforceable because the signing parties did not “clearly and convincingly” show they had the authority to give up the decedent’s right to a jury trial.  In order to waive the decedent’s right to trial, the families involved in the cases would have to “explicitly” set out their authority in the power-of-attorney document, the court ruled.

In its ruling, the court compared entering an arbitration agreement to terminating parental rights, putting a child up for adoption or giving up the right to worship freely.

“Without any doubt, one may expressly grant to his attorney-in-fact the authority to bargain away his rights to access the courts… by entering into a pre-dispute arbitration agreement,” the court’s opinion reads. “We will not, however, infer from the principal’s silence or from a vague and general delegation of authority to ‘do whatever I might do,’ that an attorney-in-fact is authorized to bargain away his principal’s rights of access to the courts.”

$18 Million Verdict Overturned

Posted in Tort Reform, Trial themes, Verdicts/Settlements

The Richmond Register reported the disturbing incident by an activist judge who overturned and disregarded a jury’s verdict based on a technicality.  On June 25, a jury awarded $18 million in compensation to the estate of Eliza Jennings which had sued The Terrace Nursing Home.  The suit filed in March 2010 went to trial June 15.  Jennings developed several deep bedsores, including some that exposed bone and nerve endings and became infected. This was the result of the what was said to be the nursing home’s practice of leaving residents in diapers for extended periods to save money. Jennings also allegedly lost use of her limbs from lack of range-of-motion exercise.  Jennings suffered injury and wrongful death because the nursing home failed to provide the “degree of ordinary skill expected of a reasonable and prudent nursing home.”
However, Judge Jean Chenault Logue set aside the judgment and ordered a new trial based on erroneous jury instructions that she gave to the jury.  The judge allowed the plaintiff’s attorney to present “resident’s rights” claims and supporting evidence under state statute.  According to the supreme court ruling, some of those claim’s ceased to exist with the resident’s death.  The judge’s decision to allow those claims and then include them in her jury instructions “permeated all the evidence” the plaintiff presented, “resulting in immeasurable prejudice to the defendant,” according to the defense’s brief.


Arbitration in Pennsylvania

Posted in Arbitration

The Legal Intelligencer had an interesting article about recent Pennsylvania cases involving mandatory arbitration in the nursing home context.  The author comments that the Court considered the fairness of the circumstances of the signing of the arbitration clauses.


In Wisler v. Manor Care, for instance, the Superior Court decided Sept. 8 that an arbitration agreement signed by the patient’s son, as power of attorney, was invalid for purposes of compelling arbitration in a survival act claim by the patient’s estate.

In Taylor v. Extendicare, the same court chose to favor consolidation of a case instead of bifurcating it to arbitrate one of multiple claims.

In Bair v. Manor Care, the Superior Court decided an arbitration agreement was unenforceable because a representative for the nursing home had not signed it.

In Wert v. Manorcare, the justices agreed to consider whether the intermediate court correctly voided the entire arbitration agreement, because the designated arbitrator entered a consent agreement that it would no longer arbitrate consumer claims, and whether the court could ignore evidence that the party seeking to void the agreement did not read it, as an element of deciding whether the arbitrator designation was integral to the contract.

Pending before the Superior Court for reconsideration is Macpherson v. Magee Memorial Hospital, which deals with procedural and substantive unconscionability of an arbitration agreement as one of the main subjects.


 The U.S. Supreme Court decided Marmet Health Care v. Brown in 2012, holding that the FAA pre-empted a West Virginia prohibition against predispute arbitration agreements involving nursing homes.  Nursing home defendants are “using Marmet to basically say no matter what the situation is, you need to enforce these arbitration agreements, and I think that’s a complete misreading of the Marmet decision,” attorney Trzcinski said.


Brian D. Reddick of Reddick Moss, a former attorney for nursing home operator Beverly Enterprises, who now heads a national firm that handles nursing home litigation, said he has noticed a nationwide uptick in cases related to nursing home arbitration agreements, particularly in the past six to eight years.


“As the nursing homes get called out on agreements that are clearly one-sided or unfair, they’re forced to revise their agreements,” said Trzcinski. “They get called out and a particular part gets struck down. … Then they have the attorneys revise the contracts and substitute other unfair conditions.”



Video Captures Assault

Posted in Abuse and Neglect, Advocacy, Staffing

Cleo Lumpkin was arrested and released after the Milan Police Department received an anonymous call Sept. 12 of a nursing home patient being assaulted by an employee.  Milan Police Chief Bobby Sellers said he is unsure what job he held. Sellers said investigators reviewed the video and saw the patient trying to get into a secured area inside the nursing home.  Lumpkin saw the vulnerable adult and he walked up to the man. The patient allegedly raised his arm, and Lumpkin started hitting the patient, Sellers said.  “Basically, he beat the patient pretty badly,” Sellers said.  According to police, Lumpkin punched the patient eight times with one hand while pinning him to the wall with his other hand.

Investigators spoke with the weekend supervisor at the nursing home on Sept. 12, who said she knew about the assault but thought the police had already been notified. Milan Health Care’s administrator, John Simonton, said he emailed a detective with the police department on Sept. 10 after he became aware of the assault, according to an incident report. The detective who he emailed did not work that day and had not seen the email, according to the report.  According to the report, Simonton told investigators he watched the video footage and immediately fired Lumpkin.


Caregiver Charged with Assault

Posted in Abuse and Neglect, Advocacy, Staffing

WOWT reported that Barbara Fallon was charged with assault and abuse of a vulnerable adult after accusations arose that she was slapping elderly patients at the Waverly Care Center where she worked.  Lancaster Co. Sheriff Terry Wagner said that Fallon pushed and slapped the arms of elderly women, aged 73, 79 and 89. Fallon is no longer employed at the facility.

Failure to Maintain Safety Equipment

Posted in Abuse and Neglect, Advocacy, Trial themes

One aspect of neglect is failure to properly maintain safety equipment. This failure, as reported by the Star Tribune, on the part of one Rochester nursing home resulted in one resident’s death last year. The resident was being transferred from a bed to a wheelchair when they fell 4 feet after the transfer harness slipped. The safety catch which would normally catch a resident in a situation like this was missing.  Maple Manor Health Care & Rehabilitation had been having problems with a mechanical lift used for moving patients but ignored safety precautions and had no records of inspections and maintenance done on the lift.

After the fall, the resident had fractures of the spine and a scalp laceration, dying less than a week later in the hospital. Mechanical lifts have caused injury and death in nursing homes across the US and the world. Mark Kosieradzki, Plymouth attorney, says that human error and misuse of lifts are always to blame.

These devices are simple, but they need to be operated correctly. We see over and over again that facilities cut corners in operating lifts and people die.” In addition, Maple Manor had a history of improper maintenance of their mechanical lifts. In fact, state investigators found that the home had been experiencing problems with safety catches popping off for six to nine months before the resident fell. This type of neglect is something that could have been fixed so easily, with limited cost and time. However, Maple Manor couldn’t be bothered to solve the problem and their negligence resulted in a resident’s death.

Abusing the Charitable Immunity Doctrine

Posted in Advocacy, Tort Reform, Trial themes

The Arkansas News reported the important decision from the Arkansas Court of Appeals (Order) which overturned a Jefferson County circuit judge’s ruling that Davis Life Care Center nursing home is immune from a wrongful-death lawsuit.  The appeals court said the judge erred in dismissing the wrongful-death lawsuit against Davis Life Care Center because of the allegation that the facility is a charitable entity.

The Court of Appeals said there are questions of fact regarding whether Davis Life Care Center was truly operating as a charity and was entitled to charitable immunity from civil suits.  The nursing home argued that it has operated at a loss since its inception in 2001, but the Court of Appeals said that “one might inquire as to how Davis has the ability to remain operational after over a decade of financial losses.”  “The lack of a profit in a longstanding business could cause reasonable minds to question whether an entity is truly operating at a deficit each year or manipulating its financial records to create the perception that it is operating at a deficit,” the court said in an opinion written by Judge Rita Gruber.

The court said a contract between the nursing home and Morrison Management Specialists calls for Morrison to provide dining, housekeeping and maintenance services to Davis Life Care Center and several other entities — at least two of them for-profit ventures — described as collectively doing business as Davis Life Care Services.  “This contract, at the very least, raises factual questions regarding whether Davis was abusing the charitable-entity form by utilizing Davis Life Care Services as a means to conceal profits,” the court said in the opinion.

The nursing home also argued that it gives some free care to patients, but the Court of Appeals said the evidence shows that all patients are initially charged for their care and that only after a patient does not or cannot pay a debt is the debt forgiven. The amount of bad debt forgiven by the nursing home totaled less than 1 percent of its revenue in 2011, 5.76 percent in 2012 and 2.2 percent in 2013.  “We hold that reasonable minds could view this minute amount of debt forgiveness as creating a facade of charity instead of a true charity,” the court said in the opinion.

The Court of Appeals also said the evidence shows that the nursing home received donations totaling less than $100 in 2012 and 2013, a “paltry” amount that the court said could not significantly have affected the nursing home’s finances.