South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Victory for Residents’ Rights

Posted in Arbitration

The New York Times reported on the great victory for nursing home residents.  Currently, many nursing homes require patients seeking admission to first agree to resolve disputes through binding arbitration, relinquishing the court system.  However, CMS has issued new standards for admitting residents that prohibit mandatory arbitration in admissions agreements.   The new rule bars any nursing home that receives federal funding from forcing its residents to resolve any disputes in arbitration, instead of court.  Residents should not give up their constitutional right to a jury trial just because they need nursing home care.

Clauses embedded in the fine print of nursing home admissions contracts have pushed disputes about safety and the quality of care out of public view.  Arbitration clauses have also stymied the families of nursing home residents from getting justice, even in the case of murder.

“With its decision, the Centers for Medicare and Medicaid Services, an agency under Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country: their day in court.”

The dangers of private arbitration was recently discussed in an article in The New Republic.

“Arbitration agreements force victims of nursing homes out of the legal system when seeking redress. They also give them no ability to appeal rulings. Nursing homes can use the same arbitrators repeatedly, while an aggrieved family only sees them once;this biases the system, as arbitrators have incentives to rule in favor of the nursing home if they want to be chosen again for future mediations. The costs of the arbitration are often split between both parties, which places a disproportionate burden on the plaintiffs as well. (Most families, after all, are not as wealthy as your average nursing-home chain.)”

Even the American Health Care Association (not exactly an unbiased party) found in 2009 that plaintiff awards are 35 percent lower through arbitration than through the courts.

The prevalence of wrongdoing at nursing homes is shocking—from preventable falls to patient neglect to financial theft to even physical and sexual abuse. “I’ve seen photos of seniors in compromising positions put on social media,” Tad Thomas, a consumer attorney in Kentucky who has worked on several long-term care cases says. “It’s really sad.” The New York Times wrote earlier this year about a 100-year-old woman murdered by her 97-year-old roommate, whom the facility knew was at “risk to harm herself and others.”

According to a report from the Inspector General of the Department of Health and Human Services, 22 percent of Medicare patients suffered “adverse events” resulting from the medical care in nursing facilities, and another 11 percent experienced temporary harm; more than half were preventable and due to failures in treatment or monitoring.

“A Surgeon’s Belated Confession”

Posted in Advocacy, Discovery issues, Trial themes

NPR and Propublica both had articles about Dr. Lars Aanning who has admitted to lying underoath for a colleague.  This happens all the time.  Doctors don’t squeal on doctors.  It is similar to the thin blue line for police officers.  Should Dr. Aanning be commended for telling the truth now?

The South Dakota surgeon had been called to vouch for the expertise of his partner whose patient had suffered a stroke and permanent disability after an operation.  Dr. Aanning faced an ethical and legal dilemma.  Aanning had, in his own mind, questioned his colleague’s skill. His partner’s patients had suffered injuries related to his procedures.

The attorney asked the key question: Did Aanning know of any time his partner’s work had been substandard?

“No, never,” Aanning said.

Now, Aanning, in a stunning admission for a medical professional, has a blunter answer: “I lied.”

His partner won the trial

Aanning is haunted by his decision.

Now, 77 and retired, he decided to write about his choice and why he made it in a recent column for his local newspaper, The Yankton County Observer. He also posted the article in the ProPublica Patient Safety Facebook group.

From that very moment I knew I had lied — lied under oath — and violated all my pledges of professionalism that came with the Doctor of Medicine degree and membership in the [American Medical Association],” Aanning wrote.

ProPublica has found that patients frequently aren’t told the truth when they are harmed. Studies also show that many physicians do not have a favorable view of informing patients about mistakes and that health care workers are afraid to speak up if things don’t seem right. Many doctors and nurses have told ProPublica that they fear retaliation if they speak out about patient safety problems.

Why did you tell the lie?

I did it as a matter of course. And I did it because there was a cultural attitude I was immersed in: You viewed all attorneys as a threat, and anything that you did was OK to thwart their efforts to sue your colleagues. I just accepted that as normal. It wasn’t like, “I’m going to lie.” It was, “I’m going to support my colleague.”

Did you feel pressure from your peers to never criticize a colleague?

Pressure is the prevailing attitude of the medical profession. The professional societies like the AMA and the American College of Surgeons say you should be a patient advocate at all times. But that goes out the window because here you are, banding together with your peers. Because if you don’t, you’ll be like a man without a country.

Why are you telling the truth now?

I’m retired now. The big benefit is they can’t hurt me, but I can’t go to the clinic for any help. All my doctors are out of town. I came to America from Norway in ’47 and grew up in New York. I’ve always been a rabble-rouser. This testifying falsely at this trial was not like me, so it stands out. It’s not how I do stuff.

I also told the truth about my lie because I have been helping some of these plaintiffs’ lawyers with their cases. It seems that the courtroom is not the arena for adjudication of medical right or wrong. I shared my story to give an explicit example of why you can’t always rely on physician testimony in court. I think that’s the big reason. There’s got to be a different way to help people who have been medically harmed. Looking to the legal system is like mixing oil and water.

Do you feel like it’s your fault the patient lost the case?

I haven’t touched on that question. It would make it painful for me. I would be moved to tears if that whole case revolved around just my testimony. I was on the stand so briefly. But cumulatively between what I said and the other testimony — it was never a level playing field for the plaintiff. People don’t recognize it. How the judges don’t recognize it and the system doesn’t recognize it is beyond me. It’s something I’m coming to grips with.

Have you thought about talking to the patient’s family?

The attorney said something about meeting the patient’s widow in his office, or something like that. I worry about whether my testimony weighed on the final verdict or not. It’s something that you just have to face up to. It’s too late to deflect it.

Do you feel any better or worse now that you’ve gone public with your moral failure?

I’m not altruistic. I’m not a crusader. I got into writing this column accidentally, so I just kind of find myself in this position. I get a great satisfaction out of defining what I see and writing about it. I hope nobody’s going to come back at me and accuse me of bad conduct. Although that’s what it was. I felt bad about it.

Florida Arbitration Decision

Posted in Arbitration

The Florida Supreme Court said a lawsuit about injuries suffered by a nursing-home resident should not be sent to arbitration.  The case centered on a contract that was signed in 2009 by Juan Mendez Jr. when his father, Juan Sr., was admitted to Hampton Court Nursing Center. Part of the contract said legal disputes would be resolved in arbitration, rather than going to court and potentially being decided by a jury. However, the son did not have a valid power of attorney.

In a 5-2 decision, the Supreme Court said the father could not be bound by an arbitration requirement that his son had signed without the father’s agreement.

“We would never enforce an admission agreement if a nursing home obtained a resident’s signature by threatening the violent destruction of the resident’s property unless the resident signed the agreement,” said the majority opinion, written by Justice James E.C. Perry and joined by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. “If we will not enforce a contract when a party agrees under threat or duress, then we should not enforce a contract in the absence of the party’s agreement altogether.”

DOJ Settlement with NAHC, Inc.

Posted in Advocacy, Medicare, Trial themes

California Healthline reported the $30 million DOJ settlement involving North American Health Care Inc. and two of its executives.  They will pay back $30 million after they billed government health care programs for unnecessary treatments.

The company will pay $28.5 million, the bulk of the settlement, while John Sorenson, chairman of the board, will pay $1 million. Margaret Gelvezon, senior vice president of reimbursement analysis, will pay $500,000. The DOJ said Gelvezon created an “improper billing scheme,” and Sorensen enforced the scheme.

According to the DOJ, which launched its probe of NAHC in 2008, the company submitted false claims to Medicare and TRICARE for unnecessary rehabilitation services. The services were provided to residents at the company’s 35 skilled nursing facilities, most of which are in California.

Opiod Epidemic

Posted in Advocacy, Medications

The L.A. Times had a remarkable article on the dangers of opiod drugs.  Over the last 20 years, more than 7 million Americans have abused OxyContin, according to the federal government’s National Survey on Drug Use and Health.  Oxycontin is blamed for setting off the nation’s prescription opioid epidemic, which has claimed more than 190,000 lives from overdoses involving OxyContin and other painkillers since 1999.  Before OxyContin, doctors had viewed narcotic painkillers as dangerously addictive and primarily reserved their long-term use for cancer patients and the terminally ill. Purdue envisioned a bigger market.

Purdue Pharma launched OxyContin two decades ago with a bold marketing claim: One dose relieves pain for 12 hours, more than twice as long as generic medications.  One OxyContin tablet in the morning and one before bed would provide “smooth and sustained pain control all day and all night.”  OxyContin became America’s bestselling painkiller, and Purdue reaped $31 billion in revenue.  OxyContin is a chemical cousin of heroin, and when it doesn’t last, patients can experience excruciating symptoms of withdrawal, including an intense craving for the drug.  The problem offers insight into why people become addicted to OxyContin, one of the most abused pharmaceuticals in U.S. history.

OxyContin’s impact on the practice of medicine was similarly transformative. Other drug companies began marketing their own narcotic painkillers for routine injuries. By 2010, one out of every five doctor’s visits in the U.S. for pain resulted in a prescription for narcotic painkillers, according to a Johns Hopkins University study.  OxyContin accounted for a third of all sales revenue from painkillers that year, according to industry data.

The L.A. Times investigation found:

  • Purdue has known about the problem for decades. Even before OxyContin went on the market, clinical trials showed many patients weren’t getting 12 hours of relief. Since the drug’s debut in 1996, the company has been confronted with additional evidence, including complaints from doctors, reports from its own sales reps and independent research.
  • The company has held fast to the claim of 12-hour relief, in part to protect its revenue. OxyContin’s market dominance and its high price — up to hundreds of dollars per bottle — hinge on its 12-hour duration. Without that, it offers little advantage over less expensive painkillers.
  • When many doctors began prescribing OxyContin at shorter intervals in the late 1990s, Purdue executives mobilized hundreds of sales reps to “refocus” physicians on 12-hour dosing. Anything shorter “needs to be nipped in the bud. NOW!!” one manager wrote to her staff.
  • Purdue tells doctors to prescribe stronger doses, not more frequent ones, when patients complain that OxyContin doesn’t last 12 hours. That approach creates risks of its own. Research shows that the more potent the dose of an opioid such as OxyContin, the greater the possibility of overdose and death.
  • More than half of long-term OxyContin users are on doses that public health officials consider dangerously high, according to an analysis of nationwide prescription data conducted for The Times.

The U.S. Justice Dept. launched a criminal investigation, and in 2007 the company and three top executives pleaded guilty to fraud for downplaying OxyContin’s risk of addiction. Purdue and the executives were ordered to pay $635 million. The case centered on elements of Purdue’s marketing campaign that suggested to doctors that OxyContin was less addictive than other painkillers.

While Purdue’s litigators were working in courthouses around the country to fend off civil suits, its regulatory attorneys in Washington, D.C., made a blunt admission to the FDA: The 12-hour dosing schedule is about profits.

Nursing Home Employees Arrested for Humiliating Photos

Posted in Abuse and Neglect, Staffing

CNYCentral reported the arrest of four nursing home employees for taking pictures of elderly residents in humiliating poses, demeaning to the residents.  Mathew Reynolds and Angel Rood, both working at Pontiac Nursing home in Oswego, N.Y.,  were charged with multiple “Endangering the Welfare of an Incompetent or Physically Disabled Person and two counts of “Willful Violation of the Public Health Law”. They were said to have taken photos of the residents in poses that portrayed them “touching the resident in an abusive manner.”

Austin Powell and Brittany Bolster, both from St. Luke’s Heath Services are both being changed with the same felonies as Reynolds and Rood. They took videos of themselves physically and verbally abusing a nursing home resident while neglecting their obligations to the elderly.

All four of the nursing home aids were arrested on Tuesday, September 13th and their next scheduled court date is October 19th.

Pontiac Nursing Home has a history of failing to do background checks on new hires to see if they have histories of abusing, neglecting or mistreating residents, an inspection report shows.  Pontiac failed to do pre-employment screening of four newly hired employees, did not provide abuse prevention training to workers and failed to thoroughly investigate potential cases of abuse, neglect and mistreatment, according to a June 1, 2015 state Health Department inspection.

Breach of Trust

Posted in Abuse and Neglect, Staffing, Trial themes

Fox4KC reported the arrest of nursing home employee Angela Kreps who is accused of stealing thousands from a cancer victim. Kreps was director of social services at the Maple Wood Care Center.  Kreps used her position at the center to gain the victim’s trust.  She allegedly used the money for things like tanning, gasoline and groceries.

“Court records say in 2014 and 2015, Kreps used Wiley’s debit card to spend more than $3,000 without Wiley’s permission. Police reports list nearly 50 “illegal transactions” at places like Quik Trip, Hobby Lobby, and Dollar tree. Investigators say Kreps also used Wiley’s money at her own doctor’s office and to renew her tanning membership at Venetian Tan.”

Court records say Kreps also set up a Facebook page in the victim’s name and signed up for online banking — both without Wiley’s permission. Kreps quit her position at the center when the investigation started, according to court documents.

 

Choking Death

Posted in Abuse and Neglect, Dementia Care, Nutrition, Staffing, Trial themes

The Star Tribune reported that the Minnesota Department of Health said the Gardens at Cannon Falls “did not have an adequate system to ensure cognitively impaired residents on [liquid] diets were adequately supervised.” Nursing home staff knew the resident was dissatisfied with her limited liquid diet, and that she would routinely try to take the solid foods of others and throw her own meals onto the floor, the investigation noted.

State death records identify her as 77-year-old Margarita M. Schuler.  A nephew who lives a few miles from the nursing home expressed exasperation with his aunt’s care. “Wow, we had been working with the staff for quite a while about her needing extra care,” Mike Kulhanek said. “I was personally frustrated with that.”

 According to the investigation:

On a Sunday night in mid-November, Schuler was in her wheelchair in the dining room and roughly 3 feet from where sandwiches, cookies and liquefied snacks were put out for residents.

When none of the three staff members in the room was looking, and after sitting near the snacks for more than an hour, Schuler rolled over to the food and “was trying to quickly eat the sandwich.”

When she began choking, staff members attempted to dislodge the food with chest compressions and the Heimlich maneuver, and called 911. Schuler died in an ambulance on the way to a hospital. Her choking caused her to go into cardiac and respiratory arrest, according to the death certificate.

“Staffing is an issue everywhere you go”

Posted in Staffing, Trial themes

ABC27 had an incredible article with video proof of horrendous violations at Susquehanna Valley Nursing and Rehabilitation Center.  You can see the videos by using the link to the article.

I’ve seen roaches, but these are huge,” Kayla Singleton said as she watched the video again. Singleton was a registered nurse supervisor at the facility when she recorded the video in the facility’s kitchen in June.

I went in with another employee so she could show me what happens when you turn the light on in the kitchen,” she said. “Sure enough, I turned the light on and they were scattering everywhere. I just couldn’t believe it.”  “I was gagging,” she added.

She says she decided to take her concerns to her supervisors. Singleton says she was fired a week later. She posted the video on Facebook shortly after.

“A lot of people fight with ‘I need my job, I need to support my family’ versus ‘These people need me to speak up for them, and if I do I’m going to lose the way I provide for my family’,” Singleton said. “That’s a tough situation to be in.”

I felt like I had to warn the community,” she said.

Her concerns go beyond cockroaches, and she’s not alone. After Singleton posted the video, other former employees came forward. They said they hoped things would change when Vita Healthcare Group bought the facility in June 2015, but problems continued. Several told ABC27 there were problems with dirty wheelchairs, including allegations of maggots and complaints about the smells. An inspection from October 2015 says the Department of Health found evidence of dirty wheelchairs and discovered they were not being cleaned on a routine basis.

Our residents weren’t being kept safe,” said Niccole Leas, a licensed practical nurse and former employee.

They’re not even treated like they’re humans,” certified nursing assistant and former employee Brittany Dietz told ABC27.

We just want to see those people in a place where they deserve to be,” former employee Ana Matteo said.

ABC27 went through Susquehanna Valley’s nursing home inspections.  Eight separate inspections showed the nursing home was out of compliance. There were 14 documented complaints against the facility in that same amount of time.  Several other inspections showed the facility did not “maintain a clean, safe and sanitary environment.”

There wouldn’t be washcloths to wash them with because they’re still back in laundry or just didn’t exist,” Deitz said. “Soap would be gone.”

 

Former employees blame short-staffing to save money at the for-profit facility. “Staffing is an issue everywhere you go,” Leas said, “but you got to draw the line somewhere at what’s safe.

 

 

 

Inspections show several violations including the allegation of verbal abuse, failing to notify responsible parties about falls, and evidence that the facility “failed to maintain a clean and sanitary condition.”

 

 

 

 

Owner only “did what he could to get by”

Posted in Abuse and Neglect, Advocacy, Staffing, Trial themes

The St. Louis Post-Dispatch reported that Benchmark Healthcare of Festus Inc. nursing home may not continue to be eligible for taxpayer funding through Medicare and Medicaid after not providing enough food for residents and violating basic minimum standards for cleanliness and care, according to federal inspection reports.  It is rare for the government agency to pull funding for a nursing home.

Residents told inspectors over the summer that they were hungry.  In interviews with inspectors, staff members admitted they had not received a food delivery in a month because of nonpayment to the vendor.

The facility, which is licensed for 79 beds, “failed to ensure a consistent and sufficient amount of food in the facility, including nutritional supplements, to meet the nutritional needs of the residents,” according to a July report from the Centers for Medicare and Medicaid Services.

Staff also failed to give four residents their medications for epilepsy, heart failure, urinary tract infections and mental illnesses, according to a follow-up inspection in August. At the time, there were 56 residents at the facility. The inspectors found that the facility had failed to pay its pharmacy bill.

The facility was also cited for a lack of cleanliness and basic maintenance. The inspectors found 1- to 2-foot-tall weeds around the property, peeling paint, loose baseboards, black spots on the shower ceiling and dirty bathroom floors. Exhaust vents in several residents’ rooms were broken.

Kim Bakeville, a former employee who left Benchmark eight months ago, said that while employees did all they could to give residents the best care possible, company president John Sells only “did what he could to get by.”

She said Sells was either late or didn’t make payments to several of the home’s vendors, prompting the home’s cable provider to threaten to shut down the home’s phone, cable and internet service.

Sells also was unresponsive to calls from Benchmark staff and would only make maintenance repairs to the old facility building after employees called state inspectors.

Bakeville said Sells often paid employees in checks that later bounced and that he cut employees’ hours so that they no longer qualified for full-time benefits.