South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Arbitration Trends

Posted in Arbitration

Another form of alleged abuse that has been lurking amongst nursing homes and elder care facilities is mandatory pre-suit arbitration clauses hidden in nursing home admission paperwork.  The so-called “arbitration agreement” is a common practice of nursing homes in an attempt to escape accountability. Families of incoming residents are asked to sign waivers that hold any and all disputes over elder care neglect or a nursing home injury are to be decided by arbitration, and not the courts. Lately, the courts have been ruling that such agreements are unconscionable, in that they tend to be one-sided and violate public policy.  When you waive your right to a jury trial, do you really understand what you’re giving up? And if you don’t fully understand or comprehend what you’re agreeing to, how much weight can be put on the agreement in the first place?

In Hendricks v. Manor Care, Berks County Court of Common Pleas Judge Jeffrey Sprecher found that some of the provisions in the arbitration agreement at issue in the case were “misleading,” while others were “overreaching.”   “There is no evidence that this plaintiff realized what she was giving up by waiving a jury trial or even a court proceeding,” Judge Sprecher said, in his opinion released October 3. “This plaintiff is not an attorney or a businessperson experienced in the law. This court cannot conclude that plaintiff understood her rights. Therefore, this court concluded that plaintiff lacked informed consent when she agreed to waive the resolution of all future disputes in a court of law in favor of private arbitration.”

“Arbitration may be fine for monetary issues in business transactions, but injuries caused intentionally or negligently in tort should not be the subject of routine arbitration unless both parties fully and completely negotiated and agreed to the final terms,” Sprecher wrote. “Unlike contracts where the issues are relatively clear and a breach can be easily identified, negligence issues are not so obvious.”

Sprecher also noted that Hendricks was asked to sign the arbitration agreement at an emotionally trying time and did not fully understand what she was agreeing to. There was no provision for negotiation in the agreement, which had to be signed as is. Judge Sprecher held that the agreement was “procedurally unconscionable.”

In November 2011, a five-member majority of the Florida Supreme Court rejected key aspects of an arbitration agreement signed by the family of a resident with Manor Care Florida Inc.  The lawsuit, Gessa vs. Manor Care of Florida Inc., involved the same elder care company that was involved in the Pennsylvania case.

Yet another case in New Mexico also found for the plaintiff. The son of a resident who died just a few months after admission filed a wrongful death lawsuit on behalf of his deceased parent. The defendant immediately moved to compel arbitration. The trial court in Figueroa v. THI of New Mexico at Casa Arena Blanca LLC,denied the motion on grounds that the agreement was one-sided and unconscionable, citing the Supreme Court’s decision in Cordova v. World Finance Corporation of New Mexico, 2009-NMSC-021, 146 N.M. 256, 208 P.3d 901, which held that arbitration agreements that are unfairly and unreasonably one-sided in the drafter’s favor are unconscionable under state law.

 

Choking Death

Posted in Abuse and Neglect

The L.A. Daily News reported the sad preventable death of a nursing home resident who choked on medications mixed with apple sauce.  Windsor Gardens Healthcare Center of the Valley, a skilled nursing facility in North Hollywood, was fined $75,000 after a state inspection concluded  a Class “AA” citation, the most severe penalty under state law, was warranted.

The death occurred last year, when a resident who had trouble swallowing was given the oral medication in her apple sauce. She was admitted to the hospital where she died days later as a result of aspiration pneumonia or “infection of the lungs that develops due to the entrance of foreign materials, usually oral or stomach contents, into the lungs, often caused by an inability to swallow; the bacteria are different than those seen in common types of pneumonia,” according to the state inspection report.

 

 

Unsafe Lift Leads to Tragic Wrongful Death

Posted in Abuse and Neglect, Fall Prevention, Staffing

Tri-City Herald reported the preventable death of Harry Lee Minor and the pending lawsuit still going on five years later.  Minor’s family sued the skilled nursing facility, Avalon Health & Rehabilitation Center, where he died after falling from a patient lift.  They also sued the lift manufacturer,  ArjoHuntleigh. David Tift, a Seattle-based attorney for Avalon, said ArjoHuntleigh had a contract to maintain the lift and an Arjo technician had recently worked on it, and “in spite of them recently having done work on it, it failed.”

Harry Lee Minor died in December 2009. He generally was in good health but had dementia. He lived at Avalon for several months.  On Dec. 20, an Avalon staffer used a patient lift to transfer him from a chair to his bed.  When he was about four feet in the air — at the lift’s maximum height — it broke and Minor fell to the floor.  He felt immediate pain, and first responders took Minor to the hospital “where it was learned that (he) had a fractured pelvis as a result of the fall” but nothing could be done. He was released back to Avalon later that evening and died several hours later.  The pelvic break led to fatal hypovolemic shock

The family argues negligence — on the part of the facility, the lift maker or both — led to their father’s death. They feel the matter has dragged on, and “we want it to be done and over with. We want to go on with our lives,” said Guy Minor. “We make sure that this never happens again (to another person).”  The family is angry and they want accountability and closure.

 

The Value of Video Cameras

Posted in Abuse and Neglect, Advocacy

WFLA had a great article on the importance of video cameras to protect loved ones in nursing homes.  The hidden camera stashed in a room at Palm Garden nursing home in Winter Haven, shows a series of abusive acts.  At Privacy Electronics in Pinellas Park, Ian Robinson displays an array of cameras that can easily be hidden.  Some “nanny cams” record all the time, others wait for a motion trigger. People hide them for all kinds of reasons.  They’re tiny, but so powerful at collecting evidence.

A Stetson University School of law professor, tells 8 On Your Side, a relative or guardian is allowed to place a camera in an elderly relative’s room but Prof. Adam Levine warns, you cannot record sound.  “As long as they’re giving permission or their guardian is giving permission, they can do anything they’d like and recording of video is completely reasonable,” said Professor Levine.

Related story: Nanny cam shows Winter Haven nursing home staff beating Alzheimer’s patient, say police

 

 

Video Camera Records Abuse

Posted in Abuse and Neglect, Staffing

My Fox Tampa Bay reported the tragic abuse of a vulnerable nursing home resident.  It was captured by the victim’s son, Dale Wilson, who had noticed random unexplained bruising on his father. In early October, he set up a hidden camera.  Two staff members, Yashika Zenobiaha Jones and Rose Dorlean Blaise, at Palm Garden Nursing Home Haven are facing serious charges after police say video captured them “tormenting” and battering a 76-year-old Alzheimer’s patient.  Police released video  showing several different incidents.

Police cited the video and interviews with other staff members regarding three specific incidents that happened over a time span of three weeks:

On Oct. 7, Jones was rubbing her hands on the victim’s face and making punching motions to agitate him. There is another nurse in the room.

On Oct. 16, Blaise appears to lunge at the victim as he gets agitated and flails his arms. In a police report, it says the woman used her legs and feet to stomp on his bare feet or kick him in the leg.

On Oct. 24, Jones again is seen making punching motions at the man. She also grabs his wrists, uses his fist to punch himself in the face, and slapped him in the face, police said.

 

Know Your Rights!

Posted in Arbitration

As part of the National Elder Rights Training Project, the National Consumer Law Center has partnered with the National Senior Citizens Law Center to do research and educate about the hidden perils in NH admission contracts.

This is a webinar/Power Point:

http://www.nclc.org/images/pdf/conferences_and_webinars/webinar_trainings/presentations/2013-2014/nursing_home_admissions_agreements_webinar.pdf

A pamphlet called “Think Twice!”:

http://www.project2025virginia.org/ThinkTwice.pdf

And the report which led to the pamphlet:

http://www.nsclc.org/wp-content/uploads/2012/05/Think-Twice-report-FINAL.pdf

 

 

These may be helpful resources to share with the elder law practitioners in your area.

Victims of Tort Reform: Women, Children and the Elderly

Posted in Tort Reform

The Huffington Post had a great article written by  about how arbitrary caps on the amount a jury can compensate a victim of abuse or neglect hurts women and children the most.   Half the states today have brutally-low “one-size-fits-all” caps, or limits on compensation for injuries like this. A child who is blinded is treated like a senior citizen who has permanent pain due to negligent care or a mother who loses her son or daughter. “Caps” apply no matter how much merit a case has, or the extent of the misconduct by the hospital, or the severity of the injury or loss.

If the patient can no longer work, they’ll be compensated for their lost earnings. But what if malpractice destroyed the patient’s reproductive system, or disfigured or mutilated their body? Or what if a child dies due to gross negligence? Shouldn’t there be compensation for that too? The answer, of course, is yes. And juries make those decisions everyday — that is, unless the state has “capped” compensation for these kinds of injuries, also known as “non-economic damages.” In those states, politicians who have never heard a word about a case, seen a lick of evidence or have any idea about the depth of someone’s loss, have already decided what that damage is worth.

When a state “caps” non-economic damages, politicians have essentially decided to value the destruction of someone’s life by what that person would have earned in the marketplace, since lost earning are never “capped.” This promotes a kind of caste system, which brands entire classes of low- or non-earners in our society — including children — as worth less than the life of a corporate executive. Indeed, there has already been a great deal written about this. In her paper, “The The Hidden Victims of Tort ReformHidden Victims of Tort Reform: Women, Children, and the Elderly,” University of Buffalo Professor Lucinda Finley, who studied jury awards, noted,

[C]ertain injuries that happen primarily to women are compensated predominantly or almost exclusively through non-economic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries…

[J]uries consistently award women more in non-economic loss damages than men… [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.

Professor Finley’s work was published a few years ago and now new evidence provides support. It comes from Rand researchers, who used the insurance industry’s own data to examine the impact of caps. In some ways, the results are obvious enough, finding that caps reduce average payouts by 15 percent, while also finding that extremely brutal caps, such as California’s current $250,000 cap, reduce payments even more.

But then the researchers examined the impact of caps according to medical specialty and they found, “The largest effect [of a non-economic damages cap] was in pediatrics” followed by “obstetrics and gynecology” and then, cardiology. Children. Women. And if heart disease statistics are any guide, seniors. It is more evidence that caps have a disproportionate impact on children, women and seniors — those more likely to receive a greater percentage of their compensation in the form of non-economic damages. The data is clear: Caps take money out of their hands and put it into the pockets of insurance companies. This is simply unfair.  Laws that cap compensation for non-economic injuries treat women, children and seniors as second-class citizens in this country. The terrible injustices that caps create are a blemish on our entire justice system.

Dr. Lora Ellenson, a pathologist at New York Presbyterian Hospital-Weill Cornell Medical Center, whose son, Thomas, was brain-damaged at birth due to negligence, put it this way while expressing strong opposition to a proposal to bring caps to New York State:

My son cannot walk or talk. He is not able to carry out activities of daily living — eating, dressing, toileting, bathing — without constant assistance from an adult.

As a physician I have had to come face-to-face with the knowledge that mistakes are made. Like most physicians, I live with the reality that we might one day make an error and be sued. When that day comes, I will be grief-stricken, not because of the process — although I am sure that won’t be pleasant — but due to the fact that I may have caused someone irreparable damage.

My only hope is that the damaged person can get what they need to live in the best way that they are able. As a physician, I want to know that there will be compensation to rebuild a life that has been diminished. Yet, as a mother, I also know that no typical physician, nor the system within which they operate, can possibly understand the true depth of these mistakes.

 

Falls and Lawsuits

Posted in Fall Prevention, Tort Reform, Trial themes

Resident falls continue to present the greatest risk of lawsuits to skilled nursing facilities and other long-term care providers, according to a released report from insurance company CNA.  See CNA Report.  Between 2012 and 2013, falls accounted for 41.5% of closed professional liability claims against CNA-insured nonprofit skilled nursing facilities.  This was down from nearly 44% in the 2007 to 2011 period.  The proportion of fall-related claims increased in for-profit SNFs, rising from 37% to 38.7%.  However, falls far eclipsed other reasons for claims in both time periods. In the more recent data, pressure ulcers came in at No. 2, with 17.5% of closed claims.  Falls also were the top reason for claims at assisted living and continuing care retirement communities between 2007 and 2013.

Improving resident monitoring could be one area of focus: The report shows that “failure to monitor” was associated with nearly 46% of fall-related allegations going back to 2007. This was followed by improper care, unsafe environment and “all other” causes. Falls from a bed were associated with most fall claims (32.4%), followed by falls in a bathroom (18%).

 

The Dangers of Falling

Posted in Fall Prevention

The NY Times had a great article on the dangers and prevalence of falls in nursing homes, and the need for safety interventions.  ”As the population ages and people live longer in bad shape, the number of older Americans who fall and suffer serious, even fatal, injuries is soaring. So the retirement communities, assisted living facilities and nursing homes where millions of Americans live are trying to balance safety and their residents’ desire to live as they choose.”

The dangers are real. The number of people over 65 who died after a fall reached nearly 24,000 in 2012, the most recent year for which fatality numbers are available — almost double the number 10 years earlier, according to the Centers for Disease Control and Prevention.  And more than 2.4 million people over 65 were treated in emergency departments for injuries from falls in 2012 alone, an increase of 50 percent over a decade. All told, in the decade from 2002-2012, more than 200,000 Americans over 65 died after falls. Falls are the leading cause of injury-related death in that age group.  According to the Centers for Medicare and Medicaid Services, nearly 17 percent of nursing home residents in the United States, or 220,000 people, experience a fal​l.​ Of those, 70,000 are injured. Medicare currently will not pay to treat an injury resulting from a fall in a hospital, and many health policy experts believe the agency should institute the same policy for nursing homes.

The Patient-Centered Outcomes Research Institute, a nonprofit organization, and the National Institute on Aging recently embarked on a five-year, $30-million study of fall prevention among seniors living independently, the largest such study to date.

Dr. Lipsitz of Harvard and others are not in favor of alarms. He said they often signal danger only when it is too late – after someone has already fallen down. Alarms also give rise to “alert fatigue” – they go off so often, they end up being ignored.  Though the risk of a fall increases significantly once people reach their 80s, researchers have found that people 85 and older in excellent health have no greater risk than someone 20 years younger.

 

Family Prevented from Visiting Mom

Posted in Abuse and Neglect, Trial themes

The Southeast Texas Record reported a Texas nursing home’s attempt to silence one family’s complaints.  Mackey Glen Peterson, Don Leslie Peterson and Lonny Peterson are the children of a woman living in Silverado Senior Living, doing business as Silverado Senior Living–Sugar Land nursing home.  They have been banned from the facility because of postings on social media.

The Petersons allege their visitation rights to Silverado Senior Living had been revoked based on the “posting of exploitive and invasive materials which also violate the privacy rights of other Silverado residents.”  However, the plaintiffs contend the nursing home’s decision to revoke their visitation rights was arbitrary and unreasonable. The actions of Silverado revoking access and prohibiting association with their mother by themselves and their spouses was retaliatory and oppressive, based on the content of communication and publication relating to matters of general public concern.  They say they have not published anything that could be considered invasive or exploitive.

The plaintiffs say they currently have no way to see their mother – they are prohibited from visiting the nursing home and cannot remove their mother from the facility because it is locked.  The plaintiffs say the defendants retaliated against them and failed to provide access to reasonable and necessary visitation, violating their constitutional rights.