South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Molestation Trial Proceeds

Posted in Abuse and Neglect, Advocacy, Nursing home cases in the news, Staffing

The Morning Call reported the horrific case involving a vulnerable nursing home resident being sexually molested by a caregiver. CNA Diane Wilson told a Lehigh County jury that she never saw a nurse touch a patient the way Robert Poindexter was allegedly touching a 50-year-old woman at Manor Care in Bethlehem on May 31, 2013.  Wilson is a the prosecution’s key witness in their case against Poindexter who is charged with several counts of aggravated indecent assault.

“I walked in and he was down on his knees,” Wilson said, describing Poindexter’s alleged hand movements. “I saw what he was doing and I just bugged and ran out of the room.”

The victim came to the nursing home in 2011 after suffering a brain aneurysm. She cannot speak and has very limited movement in her left arm and head. Because of this, staff placed a call button near her head so that she can roll onto it when she needs something, Wilson said.  Wilson testified that she saw the call light go on and went to the woman’s room. The door was suspiciously closed.  Wilson told the jury that she opened the door and was immediately surprised to see the woman’s bed in a flat position and lowered. The woman has a feeding tube, she explained, and needs to be upright at all times due to the risk of aspiration.

She said she got close enough to look over Poindexter’s should and saw the woman’s gown pulled up and diaper pulled down as he touched her.

“That’s what spooked me. I ran out,” she said.  Wilson told the jury that she was crying and hyperventilating after seeing the alleged crime.  “I was upset. I know what I saw,” she said. Wilson said she started crying and telling other nursing assistants what she saw, then began looking for her supervisor. Poindexter got to the supervisor first, she said, and told his side of the story.


Poindexter explained that he was on his knees because he had a back spasm while caring for the woman.


As Wilson described the alleged sex assault, the woman’s husband wept quietly in the courtroom audience.


NAF as Chosen Arbitrator Voids Arbitration Clause

Posted in Arbitration

McKnight’s had an article on the recent decision of the Pennsylvania Supreme Court on an arbitration issue involving National Arbitration Forum.  Last month’s ruling in Wert v. ManorCare of Carlisle rendered arbitration agreements that rely solely on the National Arbitration Forum unenforceable since the NAF is no longer able to accept arbitration cases.  The NAF has been unable to handle arbitration disputes since it entered into a consent decree with the Minnesota Attorney General’s Office in 2009.  Many nursing homes have accepted the Minnesota consent decree and have stopped listing exclusive arbitrators in their contracts, so the court’s ruling will affect a relatively small portion of nursing home arbitration contacts.

The justices were split on whether the Federal Arbitration Act was enough to sustain agreements that listed NAF as the exclusive arbitrator.  “The justices recognized there’s a ‘lopsided balance of power’ between sophisticated business entities, such as nursing homes and their parent companies, and the residents that they deal with,”  said Stephen Trzcinski, who represented plaintiff Evonne Wert in the case.

Wert v. ManorCare of Carlisle concerned a suit filed by Wert after the death of her mother at a ManorCare facility in Gettysburg, PA. Wert’s suit alleged that her mother’s death was due to abuse and neglect by the facility.

Rudeness Kills

Posted in Advocacy, Trial themes

The study, “The Impact of Rudeness on Medical Team Performance: A Randomized Trial,” which was published in the September issue of Pediatrics, shows that a rude comment from a third-party doctor decreased performance among doctors and nurses by more than 50 percent in an exercise involving a hypothetical life-or-death situation.

“We found that rudeness damages your ability to think, manage information, and make decisions,” said Amir Erez, an author on the study and a Huber Hurst professor of management at the University of Florida. “You can be highly motivated to work, but if rudeness damages your cognitive system then you can’t function appropriately in a complex situation. And that hurts patients.”

Rudeness has dramatic negative effects including struggling to cooperate, communicate, and do their jobs effectively, all of which caused their performance to plummet: They misdiagnosed the illness; they forgot instructions; they didn’t ventilate the patient well; they didn’t resuscitate well; they didn’t ask for help when they needed it; doctors asked for the wrong medication, and nurses mixed the wrong medication. Overall, the rude comments appeared to cause a 52 percent difference in how well teams diagnosed the disease, and a 43 percent difference in how well they treated it.  In the real world, as Erez pointed out, these performance discrepancies could have made the difference between the tiny patient living and dying.

When disruptive behaviors cause these mental resources to fail, medical teams are putting patients at risk because they are physically unable to focus past the rude comment. These doctors and nurses are making mistakes, and then they can’t recognize or adapt to those mistakes. And as a result, the study authors suggest, rudeness could contribute to many of the preventable deaths caused by medical error in U.S. hospitals each year, which, according to a Journal of Patient Safety study, is between 210,000 and 440,000 people.

Erez and Porath both say that hospitals need to take a more aggressive stance against rude behaviors among medical staff, and doctors need to consider the long-term effects of acting rudely toward one another. Because, as it turns out, these everyday slights could be catastrophic for patients.

“You’re Getting Ripped Off”

Posted in Arbitration

Senators Hank Johnson and Al Franken wrote an excellent article on Huffington Post regarding forced arbitration.

Forced arbitration rigs the game in favor of big corporations and against consumers and employees. And recently, a New York Times investigation has exposed just how prevalent this damaging practice is; indeed, the story almost certainly affects you, personally.

If you’ve ever opened a credit card, rented a car, or engaged in any number of other routine interactions with big corporations, you’ve probably had to sign away your right to go to court, or band together in a class action with other customers. Instead, you have legally (if unwittingly) agreed that, if a dispute occurs, you will seek justice only through a secret, profit-driven arbitration process — one in which no comprehensive records are kept, no meaningful appeals are allowed, and the arbitrator likely has significant financial incentive to rule in favor of the corporation.

That arbitration clause was likely buried deep in the fine print in a lengthy terms-of-service agreement. Even if you had read (and correctly interpreted) the entire contract, and decided to take your business elsewhere, odds are you would have seen the same clause in every competing company’s terms-of-service agreement, too. Consumers are left with no real recourse: you sign, or you do without a cell phone, or cable TV, or Internet service.

Now, imagine facing the same dilemma when placing a loved one in a nursing home — or even looking for a job. Believe it or not, more than 30 million American workers are bound by forced arbitration clauses as a condition of their employment.

Make no mistake: These clauses, which are practically impossible to avoid, are designed to make it easier for big corporations to break the law and rip you off without facing any real consequences. It’s unbelievably unfair. And it shouldn’t be legal.

That’s why we have introduced the Arbitration Fairness Act, which has been co-sponsored by 16 Democrats in the Senate and another 74 in the House. Our legislation doesn’t ban arbitration. If both parties want to arbitrate instead of going to court, they can. But you would get to make that decision after a dispute arises. Corporations wouldn’t be able to force you to preemptively waive your right to go to court or pursue a class action — often your only real avenue for holding these giant companies accountable.

Congress isn’t the only place where we can level the playing field. Earlier this month, the Consumer Financial Protection Bureau (CFPB) announced it was considering a proposal to ban arbitration clauses that block class action lawsuits in consumer financial contracts. While we would like to see the CFPB go further and eliminate the use of forced arbitration clauses altogether in consumer financial service contracts, this proposed rule would be a big win for consumers.

Meanwhile, the Centers for Medicare and Medicaid Services (CMS) has proposed reforming its requirements for long-term care facilities like nursing homes, acknowledging the negative impact of these clauses on residents and suggesting some ways to make these clauses more transparent and easier to understand. That is a start. But forced arbitration clauses have no place in these agreements, and we urge CMS to ban them altogether.

We are hopeful that these processes will result in real progress for consumers. But the law requires that any CFPB proposal must undergo an arduous review before being finalized and implemented, and CMS, which has already received thousands of comments on their relatively modest proposal, will likely engage in a lengthy rulemaking process, as well. And that leaves plenty of room for the Chamber of Commerce and other corporate-backed pressure groups to make their mark. It’s up to ordinary Americans everywhere whose rights are at stake to weigh in, as well.

There’s one more arena where this fight will play out: the Supreme Court. After rulings this summer to protect health insurance subsidies and make marriage equality the law of the land, many thought that perhaps concerns about the Roberts Court’s conservative bent were overblown.

But, as the Times revealed, Roberts himself was a driving force behind the creation of the forced arbitration scheme a decade ago. And in a long series of 5-4 decisions, including the two that paved the way for these unbelievably unfair forced arbitration clauses, he and the other members of the Court’s conservative majority have systematically slammed shut the courtroom door on millions of Americans.

These cases may not garner the same headlines as those involving public displays of religion or government surveillance, but they affect the rights, and the pocketbooks, of nearly all of us — something to keep in mind when evaluating not just the current Court’s record, but also future nominees.

Americans are beginning to understand that the game is rigged. Now we must take action to level the playing field.

$25 Million on Psychological Tests!

Posted in Advocacy, Medicare, Trial themes

McKnight’s had an article on two psychologists charged for billing Medicare $25 million for psychological tests on nursing home residents that were either unnecessary or never provided.  Beverly Stubblefield, Ph.D., and John Teal, Ph.D., owned two psychological services companies that contracted to nursing homes in Louisiana, Mississippi, Alabama and Florida.

Stubblefield and Teal, along with other clinical psychologists employed by their companies, allegedly provided psychological tests and other services to nursing home residents that weren’t necessary, and in some cases, never provided.

Between 2009 and 2015, the companies submitted more than $25.2 million in claims to Medicare, according to the U.S. Department of Justice. Medicare has reportedly paid $17 million of those claims.

Stubblefield and Teal, along with two other defendants, were charged with conspiracy to commit healthcare fraud and conspiracy to make false statements related to healthcare matters. The case is being handled by the Medicare Fraud Strike Force.


Protect the 7th Amendment

Posted in Arbitration

The Springfield News-Leader had the below article about forced arbitration and a proposed legislative fix to the injustice.

The Arbitration Fairness Act of 2015, recently introduced into the Senate, is a long overdue legal change which would prevent employers from requiring people to give up their constitutional rights in order to get hired. Many Americans have unknowingly agreed to give up those rights and submit any disputes to binding arbitration, usually because these provisions are buried in the fine print. The AFA would prevent those kinds of hidden provisions.

The Bill of Rights to both the United States Constitution and the Missouri Constitution specifically state that the right to trial by jury shall be preserved. The Framers did that because they knew that a fair legal system must have an impartial and objective decision-maker. While arbitration sounds good in concept, when applied to employee claims it is deeply flawed and unfair to the employees, because the deck is stacked against them.

The biggest problem is that arbitrators can’t be objective, because they have their own competing financial interests. The employer gets to pick the arbitrator, and the arbitrator knows that they won’t get hired next time if they rule against the employer today. The need to shield decision-makers from this kind of financial pressure is exactly why the Founding Fathers wrote in our Constitution that federal judges are appointed for life and that their pay can never be reduced (Bill of Rights, Art. III, Sec. 1). Those safeguards don’t exist in binding arbitrations.

Second, in arbitration there is usually no requirement that the arbitrator have any legal training or that they follow the law. It seems absurd to think someone who’s unfamiliar with the law can intelligently or adequately decide a legal dispute, yet that frequently happens.

Third, there is no way to appeal an arbitration decision, so mistakes can never be fixed. In our court system, appellate courts provide a safeguard to fix a judge’s mistakes. That oversight doesn’t exist in arbitration.

Last, there are no rules in arbitration. Unreliable evidence can be used, and witnesses can be sprung with no advance notice. Our court system’s rules of procedure and evidence, developed over hundreds of years to impart fairness and predictability, simply don’t apply.

Employers defend arbitration by claiming that the employee agreed to it. The simple truth, though, is that the average employee has no idea what binding arbitration is, or how unfair it is in practice, until after a dispute arises and they consult with a lawyer.

In short, employers use binding arbitration provisions because they want to make sure it’s not a level playing field, and because they fear the extraordinary power that 12 ordinary citizens are vested with under our Constitution.

Only Congress can rectify this injustice. The time has come for Congress to outlaw forced arbitration for America’s workers. The Arbitration Fairness Act should be passed, making binding arbitration agreements enforceable only if entered into after a dispute arises, not before.

For Profit Health Care = Higher Death Rate

Posted in Advocacy, Staffing, Tort Reform, Trial themes

CTV News and KelownaNow reported that vulnerable adults living in private for-profit nursing homes are more likely to die within six months of their stay than those living in non-profit facilities, a group of researchers has found.  A recent study by the Institute for Clinical Evaluative Sciences (ICES) found that for-profit seniors’ homes have a 16 per cent higher death rate for seniors within six months of arrival, and that there is a 33 per cent greater likelihood that they’ll end up in hospital.

“Those are not trivial numbers,” said Dr. Peter Tanuseputro, a researcher behind the study. “If there’s a way that we can get to the bottom of this and correct it, we could potentially be preventing many, many hospitalizations and potentially many deaths.”

One researcher suggests it may have to do with the staff-to-senior ratio or understaffing.   “A lot of the research finds that for-profit facilities actually hire fewer staff. One can’t help but ask [if that is] because more staff affects the bottom line,” said Dr. Margaret McGregor, a family physician and researcher at the University of British Columbia.  The difference in numbers calls into question why both long-term care facilities receive the same subsidy from the provincial government, and how both must meet the same guidelines for care.


20 Common Nursing Home Problems and How to Resolve Them

Posted in Advocacy, Choosing a nursing home

The L.A. Times had an article about finding a good nursing home for a loved one.  The article refers to Eric Carlson, a Los Angeles attorney with Justice in Aging, a national organization that works to fight poverty among seniors.  Carlson wrote “20 Common Nursing Home Problems and How to Resolve Them,” a consumer guide available free at

In the guide, Carlson writes “too frequently, nursing homes follow standard operating procedures that violate the Nursing Home Reform Law and are harmful to residents.”  Carlson says the most common problems aren’t always obvious legal issues or those that necessarily show up in quality ratings. Therefore, consumers who know their rights under the law are better able to advocate to make sure they receive the best care possible.
Carlson and other experts highlight a few of the common problems faced by nursing home residents and their families.

Medicaid discrimination. Nursing homes rely heavily on reimbursement from Medi-Cal, California’s health insurance program for people with low incomes. The vast majority of facilities are Medi-Cal certified, meaning that they accept its reimbursement.   In California, about two-thirds of nursing home residents have all or part of their costs paid for by the Medi-Cal program, according to statistics from the California Assn. of Health Facilities.  But because Medi-Cal pays lower rates than most other sources of reimbursement, advocates say patients often receive second-class treatment.

“You’re more likely to get very low-level custodial care” when covered by Medi-Cal, Carlson says.

Nursing home staff may tell you that Medi-Cal doesn’t pay for certain types of care, such as rehabilitative services, Carlson says. But if the facility is Medi-Cal certified and the care is medically necessary, it is required to provide it.

Poor care planning. “The biggest complaint we get is the plain lack of care, not letting families get involved in the care planning and not following the care plan,” McGinnis says.

The law requires nursing homes to develop a comprehensive care plan for each patient within seven days of the completion of a full assessment of the resident’s condition. That plan must then be reviewed again every three months and updated, if needed. Often, however, that doesn’t happen, leaving an inadequate care plan in place.

In addition, both the patient and his or her family have a right to be involved in deciding what kind of care will be delivered. Despite that, families are often iced out of the process, Carlson says.

Refusing to readmit after hospitalization. When Medi-Cal-funded nursing home residents are sent to the hospital for treatment, their beds must be held for seven days, during which time the home continues to be paid by Medi-Cal.

Instead, many nursing homes simply refuse to take the patients back — with the hope of replacing them with higher-paying patients.  Nursing homes, McGinnis says, would much prefer to have Medicare rehab patients because they may get paid as much as $600 a day compared with an average of $186 a day from Medi-Cal.

Fight back. Free support is available to families who need help getting the care to which they’re entitled.

The California State Long-Term Care Ombudsman Program works with patients and families to identify and investigate complaints: Call 800-334-9473, or contact the California Department on Aging at

California Advocates for Nursing Home Reform provides legal assistance, and its website,, has a host of consumer fact sheets and other free resources.

Carlson says families get better care when they know their rights and speak up.

“Stand up for yourself,” he says. Doing so will not only help you and your loved ones, Carlson says: “You’re benefiting the whole system.”

PACE Innovation Act

Posted in Advocacy

National PACE Association reported that the U.S. House of Representatives passed the PACE Innovation Act on Oct. 21. The legislation will encourage the Centers for Medicare & Medicaid Services (CMS) to allow providers to develop pilot programs using the PACE Model of Care to also serve individuals under 55 and those at risk of needing a nursing home.  The U.S. Senate passed companion legislation (S. 1362) with bipartisan support in August. It is expected to be signed into law shortly by President Obama.

“This legislation is another milestone for the PACE Model of Care,” said Shawn Bloom, president and CEO of the National PACE Association (NPA). “PACE providers have had many ideas about how to innovate the PACE model to serve younger people with disabilities and seniors so that they can enjoy a high quality of life in the community. We are excited to see what is possible given the opportunities this legislation will create to build on the PACE experience.”

Currently, to enroll in a Program of All-Inclusive Care for the Elderly (PACE®), a person must be certified to meet a nursing home level of care, be age 55 or over, live in a PACE service area, and be able to live in the community with the support of PACE services at the time of enrollment. At this time, there are 116 PACE programs serving 35,000 enrollees in 32 states.

At a recent House Energy and Commerce Health Subcommittee hearing, Tim Clontz, senior vice president for Health Services at Cone Health and chair of the NPA Public Policy Committee, observed “The PACE model can be adapted to serve people under the age of 55 and people at risk of needing a nursing home level of care. People with early-onset Alzheimer’s, a younger person with physical disabilities, or a person with an intellectual or developmental disability deserve the same options as the elderly.”

NPA has been working with Congress for several years to find ways to use the success of the PACE model to address the challenges faced by others with on-going, complex care needs. “Existing care models are often expensive and still leave gaps in care that can be hard to successfully navigate,” Bloom said. “PACE organizations are eager to demonstrate how its interdisciplinary, all-inclusive approach can improve health outcomes and quality of life for younger individuals who qualify to enroll.”

NPA recognized the leadership of Reps. Chris Smith (R-NJ-4) and Earl Blumenauer (D-OR-3) and Sens. Tom Carper (D-DE) and Pat Toomey (R-PA) on the important legislation. “One of my guiding principles is to find what works and do more of it,” Sen. Carper said. “This PACE legislation will give CMS the flexibility it needs to do just that by allowing this physician-led, coordinated health care program to expand as efficiently as possible in Delaware and throughout the country. We’ve begun to address the problem of rising health care costs, and broadening the reach of programs like PACE will help us continue to provide seniors with excellent health care while reducing costs. Providing PACE programs with the room they need to grow and innovate will give more seniors the chance to remain in their homes, while receiving excellent health care and social services.” “In Pennsylvania, PACE – or LIFE (Living Independently for Elders) – programs have been extremely successful in helping seniors to remain in their own homes rather than having to go into a costly nursing home or institutional setting,” said Sen. Toomey. “The PACE Innovation Act builds on this successful approach. I urge the president to sign this bipartisan legislation into law so an even greater number of vulnerable and disabled individuals who wish to stay in their communities can access quality health care and social services.”

“The PACE Innovation Act will provide the federally supported PACE organizations with much needed flexibility to bring the benefits of coordinated medical and long-term services to more seniors who seek to live independently in the setting of their choosing,” said Rep. Smith. “PACE has a proven track record of success in New Jersey and around the country and our legislation will enable more seniors to receive the all-inclusive care they need.” “PACE is centered on the belief that it is better for individuals and their families to receive both medical care and long-term social services and supports in the home and community whenever possible,” said Rep. Blumenauer. “Providing both existing and new programs with the flexibility to expand will allow more people to maintain their dignity and autonomy and support families during challenging times.” The National PACE Association (NPA) works to advance the efforts of Programs of All-inclusive Care for the Elderly (PACE®). PACE programs coordinate and provide all needed preventive, primary, acute and long-term care services so older individuals can continue living in the community.

The PACE model is centered on the belief that it is better for the well-being of seniors with chronic care needs and their families to be served in the community whenever possible. – See more at:

Tell Congress: Stop Forced Arbitration

Posted in Arbitration
You’ve known about forced arbitration clauses buried in the fine print of contracts agreements we all sign. But now, since the New York Times published a three-part investigative series about this corporate bullying tactic, many more people know what we lose when we “click here to agree.”

Now it’s time to do something about it!

Bills introduced in the U.S. House of Representatives and the Senate would eliminate corporations’ ability to steal our constitutional rights in employment, consumer, civil rights and antitrust cases. But Congress has stalled in making these bills become law, and more consumers are losing their constitutional rights.

Please sign our petition and tell Congress that it’s time to end the get-out-of-jail-free card that Wall Street has buried in the fine print.

Thank you!

The Take Justice Back Team


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