South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

A new article, 'Torts Provide Best Relief for Nursing Home Residents,' is now available free from Clifford Law Offices web site at http://www.cliffordlaw.com. The Chicago law office is posting legal articles on their website in an effort to educate the public about legal matters.

Torts Provide Best Relief for Nursing Home Residents

Clifford's Notes, Chicago Lawyer, 08/01/2005
By Robert A. Clifford

A man in his 70s with a psychotic disorder, known as someone who smokes in prohibited areas, sneaks out of his room in a Niles nursing home when two of the three nurses on duty are on a break.

He leaves the dementia unit and wanders into an unused wing of the hospital, where he lights a cigarette that causes most of the room to be engulfed in flames. He is burned over 25 percent of his body, and both of his legs have to be amputated.

Another nursing home in suburban Niles fails to adequately supervise a 71-year-old woman who falls down the stairs in her wheelchair.

In Chicago, a nursing-home care worker is charged with involuntary manslaughter earlier this year after she allegedly attacked a 62-year-old resident, dragging him out of bed and causing him to fall and break his hip. He dies of a heart attack a week later, and the Cook County Medical Examiner’s Office rules it a result of the stress of the assault.

Reports of nursing-home abuse appear to be on the rise for a number of reasons: the growing aging population, a greater cognizance of neglect and abuse of the elderly and the increasing specialized care for the aged. Projections of 2000 census data indicate that the elderly population will rise to 71 million Americans by 2030, more than twice the number counted in the 2000 census. By 2050, the elderly population is expected to reach nearly 87 million, comprising about 20 percent of the U.S. population.

Who is going to take care of all of the aged people, given the number of small families, divorced couples and working people? Much of the care will be left to the 18,000 nursing homes operating in this country.

Nursing homes did not really begin to develop until after World War II, when the federal government began licensing and regulating them. With the passage of Medicare and medicaid legislation in 1965 that authorized federal reimbursements for these homes, the number of beds soared, and nursing homes became big business, from private sole-proprietorship facilities to corporate chain operations.

Such facilities deal with residents’ needs ranging from rehabilitation to custodial care. Although a host of federal regulations are in place and administered under the U.S. Department of Health and Human Services, state governments are responsible for enforcing compliance with federal and state regulations. Generally, the state’s public health department conducts inspections.

When abuse and neglect occur, it is possible to bring a breach of contract action when residents and their families sign an agreement specifying a certain quality of care. But it is generally under state tort law that nursing home residents and their families appear to find the greatest satisfaction and relief.

In Illinois, the Nursing Home Care Act, 210 ILCS 45/1-101 (2005), deals with such facilities. When it was originally passed in 1979, it was hailed as the most comprehensive legislation in the nation dealing with long-term care. The act explains the conditions necessary to provide adequate long-term care and penalties for failing to meet them, with the most drastic remedy being license revocation and closing the facility.

Although such laws are necessary to protect the elderly, they do little for those who personally suffer harm. It is generally left to negligence standards to compensate those who suffer at the hands of nursing home workers. The courts, though, have made a distinction between professional negligence and ordinary negligence, both of which can occur in a nursing home facility.

For example in Myers v. Heritage Enterprises Inc., 354 Ill.App.3d 241, 820 N.E.2d 604 (4th Dist.2004), a 78-year-old resident of a downstate nursing home fractured both legs when she fell while being transported in a special lift. She died two weeks later, apparently of unrelated causes.

The executor of her estate filed a lawsuit alleging negligent transfer and supervision of the patient under the NHCA, as well as a common law negligence. The trial court instructed the jury, though, that only expert testimony could be used to determine if negligence occurred. "You must not attempt to determine this question from any personal knowledge you have," was part of the court’s instruction under I.P.I. 105.01.

On appeal, however, the court reversed and remanded, holding that the plaintiff was prejudiced by such an instruction. The court found that operation of the lift did not require expert testimony necessitating a professional negligence instruction. Jurors should have been allowed to use their own experience to decide if the nurses’ aides negligently dropped the woman.

In Harris v. Manor Healthcare Corporation, 111 Ill.2d 350, 489 N.E.2d 1374 (1986), the Illinois Supreme Court held that the term "adequate care" was synonymous with "ordinary care" or "reasonable care," thus denoting the use of an ordinary care standard of negligence in proceedings against nursing home attendants.

Illinois defines institutional abuse as, "Any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility," Ill. Admin. Code, Title 77, 300, 330 (1983). Malnutrition, bedsores, improper restraints, scalding in bath water or thermal blanket burns, even food poisoning are some of the institutional abuse that has been witnessed by the residents and their loved ones.

Robert Browning, the 19th century poet, once wrote, "Grow old along with me!/The best is yet to be./The last of life, for which the first was made:/Our times are in His hand."

Life in Illinois’ nursing homes may not live up to Browning’s ideal. It is left to the legal community to at least ensure that a decent quality of life for the elderly is sustained, particularly for those who often cannot take care of themselves.

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Alabama NewsChannell 19 had a horrendous story of neglect on their website.  NewsChannel 19's Carson Clark reported that a Marshall County Nursing Home is in trouble with state and federal officials after a patient died there. A doctor says the Golden Living Center in Boaz allowed a young woman to scream for help for more than six hours, before finding her dead.

The patient, 20-year-old Felicia Ann Engle of Boaz, suffered from kidney disease. She had to be placed in Golden Living because her father was no longer capable of taking care of her needs.

According to state records obtained by NewsChannel 19, Engle began to yell for help around 3:00 p.m. on April 3, 2008. The records quote nurses at the facility, with one saying Felicia was, "...begging us to call her doctor that something was really wrong this time. She was hurting so bad it was unbearable."

The nurse tells investigators she went to another nurse to tell her of Engle's request. The nurse reportedly replied, "Yes, we know, we've heard all about it four times at least."

NewsChannel 19 contacted Dr. Tom Geary with the Alabama Department of Public Health in Montgomery. He says the way in which Engle was treated violates the law.

"If the patient requests to go to the hospital, [if] they say something is wrong, I need to go to the emergency room, they are supposed to take them to the emergency room. They are not supposed to make a judgment that the person is just trying to disrupt the normal services in the facility, close the door and leave them alone," he says.

The director of Golden Living, Kevin Cogan, refused an on-camera interview and asked NewsChannel 19 to leave the property when they visited.

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Inevitably in most of our nrsing home cases, numerous documents that are intended to show the care, treatment, and services provided to the resident are missing, lost, or never done by the staff.  This occurs because the care was not provided or understaffing caused the staff not to have time to document or poorly trained and supervised staff.  Despite the fact that all nurses were taught and accept the axiom that "If it wasn't documented, it wasn't done", the insurance companies, nursing home industry, and their defense counsel always say the missing information is not relevant and does not show that the care wasn't given but rather wasn't documented.  Hopefully, the new Medicare reimbursement policies will preclude this frivolous argument.

McKnight's has an article discussing the new Medicare reimbursement policies and the necessity of documentation to prove care provided.  Nursing homes will have a greater role in ensuring accurate documentation of care.    Compliance officers' experience in billing and coding could be easily transferred to the area of quality-of-care forms.  Physicians and care workers will need to learn the appropriate language from compliance officers to best fill out the claims forms.

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Below is an excerpt of an article I recently saw from The Choate News about how California nursing homes used an increase in reimbursements from the State for profit instead of providing adequate care.

Nursing Home Pocket Money Meant For Care
By Jordan Rau

SACRAMENTO, Calif. -- California’s nursing homes pocketed much of the $590 million that state lawmakers provided them to better tend to low-income people, while patient care declined by several key measures, according to a study to be released Tuesday.

A law boosting reimbursements from MediCal, the state’s health-care program for poor people, passed in 2004. By 2006, the first full year the higher rates were in place, average nursing-home revenues from MediCal had increased from $124 a day to $152 per day, according to the study by a team of researchers at the University of California, San Francisco -- but few of the promised improvements for patients or staff had come to pass.

Nursing attention for patients grew, on average, by 3 percent. But the study also found that 144 homes, or 16 percent, did not meet the state’s minimum staffing standard.

Average wages for nursing assistants increased from $10.61 an hour to $11.32, not quite enough to keep pace with inflation, the study said.   Turnover among nurses grew slightly worse, with nearly 7 in 10 leaving their jobs that year.

The amount nursing homes spent on direct patient care actually decreased by 3.6 percent, according to the study. Substantiated complaints of patient mistreatment increased by 38 percent. State and federal regulators cited homes for 6 percent more violations.

“They got so much money, they should have been able to do something,” said the study’s lead author, Charlene Harrington, a UCSF professor and nationally recognized authority on nursing homes.   “The fact that they let the nursing-assistant wages actually decline with inflation, I think there’s no excuse for that,” Harrington said. “They’re the bulk of the workers and they’re the lowest paid.”

The higher reimbursement rates were pushed through the Legislature in the final two weeks of its 2004 session by a powerful alliance between the nursing-home industry and Service Employees International Union, which represents many health-care workers.

At the time, several nursing-home advocates objected that the measure lacked sufficient safeguards to ensure that the money went to patient care.

Along with more money, the new law changed the way facilities were reimbursed from a flat fee for each patient to one based on how much the homes spent on workers, patients and the physical plant. Supporters pledged that the change would reward homes that hired more nurses and paid them better.

The average nursing home netted $248,047 in 2006, a 233 percent increase from 2004, the study said.   The study found some areas where nursing-home spending did increase substantially.

For example, administrators’ wages rose by 13 percent, and the pay for licensed nurses -- who have more training than assistants -- grew by 9 percent.

Nonprofit nursing homes raised their wages more than for-profit homes. Still, said Michael Connors of California Advocates for Nursing Home Reform, a patient watchdog group, “to a great degree, no one knows where the money went and how it was used. What’s clear is it hasn’t been used for beneficial effects on residents, which is appalling.”

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Here is an article showing how profitable the nursing home industry actually is while the insurance companies are requesting immunity and protection from their neglect and abuse.  

Robust Financial Standing Of California Nursing Homes Observed Amid Slump In Quality Care
Vittorio Hernandez - AHN News Writer

A study released Tuesday reported growing profitability of the nursing home industry, but declining health care quality.

Researchers from the University of California San Francisco found out that two years after the state passed legislation increasing reimbursements from Medi-Cal, average nursing home income from the state's healthcare program went up to $152 from $124 daily.

The same study discovered 16 percent of nursing homes in the state failed to measure up to California's minimum staffing benchmarks. A minimal rise in average salary for nursing assistants by less than one dollar was not sufficient to cover inflation rate increases. Even higher-paid nurses had a fast turnover rate, with 7 in 10 resigning from their jobs in 2006.

But average spending on direct patient care went down by 3.6 percent, while complaints of patient mistreatment proven went up by 36 percent.  Charlene Harrington, the lead author of the study, wrote as her comment, quoted by the Los Angeles Times, "They got so much money, they should have been able to do something."

See also the L.A. Times article on this study which added the following:

California nursing homes bolstered their bottom lines with $590 million that state lawmakers provided them to better tend to the poor, while patient care declined by several key measures such as turnover among nurses increased slightly, with nearly 7 in 10 leaving their jobs that year, the amount nursing homes spent on direct patient care actually decreased by 3.6%, and substantiated complaints of patient mistreatment increased by 38%. State and federal regulators cited homes for 6% more violations.  Said Michael Connors of California Advocates for Nursing Home Reform, a patient watchdog group, "to a great degree, no one knows where the money went and how it was used. What's clear is it hasn't been used for beneficial effects on residents, which is appalling."

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 McKnight's has an article about  the average price paid per bed for skilled nursing facilities hitting a new record in 2007. The average of $55,200 was 6% higher compared with the year before and 75% more than the notable low of 2003, according to analysis results from research firm Irving Levin Associates.

As more investment groups own long-term care properties, valuations and loan volume in the sector soared to record highs. The median SNF bed price leaped 15% in 2007 buoyed by billion-dollar deals involving major nursing home chains going private.

The average sales price for assisted living units also hit a new high $159,100 in 2007, 20% higher than the year before. Independent living unit prices also rose 20% in 2007, to $174,500 per unit, another record, according to the report.

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Santa Cruz Sentinel has an article about the tragedy that is all too common for many nursing home residents.  Nursing homes fail to train on what DNR status means, and far too often simple care is not provided that would save a resident's life.  Below are excerpts from the article.

The Tragedy: On Sept. 11, 2007, a 71-year-old woman with cancer was transferred to Pacific Care Manor, a nursing home in Capitola. Just prior to her admission, the woman's doctor noted that her patient was lucid and responsive and "could have years to live." Most importantly, the patient had also expressed a desire to live.

Shortly after her admission, the woman began refusing food, water and any treatment. Within two days, she was screaming and combative. On day three, the nursing staff suggested that lab work be ordered to determine the cause of the resident's distress. The facility's director of nursing overruled the suggestion because "once we know what is going on then we will have to treat her." Instead, the nursing director asked the facility doctor to prescribe pain medication and a "do not resuscitate" order. The doctor complied and, despite the woman's documented opiate intolerance, he prescribed a Fentanyl patch, Haldol, morphine. He also wrote an order for "no CPR, no hospitalization." His patient cried out "you are all going to kill me" after the forcible administration of the prescribed medications. On Sept. 16, just five days after her admission, the resident died. 

All residents of nursing homes have the right to grant or withhold consent to any proposed treatment.  Residents have the right to refuse or consent to treatment and to receive all information relevant to making their treatment decisions. Providing such information is part of any responsible nursing home's assessment and care planning process. Federal regulations also reaffirm residents' rights to informed consent and to refuse treatment.

Regardless of a resident's mental capacity, no facility may administer treatment unless the resident has agreed or has been specifically adjudicated incompetent by a state court judge. Even after a court has determined that a resident is incompetent, it must make additional findings before terminating a resident's right to refuse treatment. Without a court order, the provision of any treatment over a resident's express refusal is a violation of several residents rights and is criminal battery.

Similarly, doctors cannot order "Do Not Resuscitate" orders without the written authorization of their patients. For DNR orders, designated health care agents may sign for the patient. However, doctors may not unilaterally impose DNR orders without a resident or resident representative signature.

Nursing homes throughout California are accustomed to interposing their notions of a resident's best interests over the expressed wishes of their residents. The Department of Public Health and resident advocates have been generally weak in preventing this illegal conduct. Hopefully, the tragedy in Capitola will serve as a warning to both facilities and advocates about the deadly consequences of disregarding residents' critical rights to direct their own treatment.

Anthony Chicotel is an attorney for the California Advocates for Nursing Home Reform in San Francisco.

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The NY Times has an informative article on the multi-disciplinary approach needed to prevent pressure ulvers in nursing home residents. 

The article defines a pressure ulcer as an area of skin breakdown that occurs when sustained pressure cuts off blood circulation — usually in patients confined to their beds nursing homes — a bedsore can result in a wound so deep (sometimes to the bone) and painful that some patients require narcotics. If a bedsore becomes infected, the complications can be fatal.

Experts estimate that two million Americans suffer from pressure ulcers each year, usually through some combination of immobility, poor nutrition, dehydration and incontinence.  New research requires a team approach, enlisting everyone from nurses and nursing assistants to laundry workers, nutritionists, maintenance workers and even in-house beauticians.

In a study of a collaborative program involving 52 nursing homes around the country, The Journal of the American Geriatrics Society reported last August that team efforts had reduced the number of severe pressure ulcers acquired in-house by 69 percent. 

Dr. Joanne Lynn, who helped begin the project when she was a senior natural scientist with the RAND Corporation (she has since joined the Medicare centers), said the goal was to educate nursing home workers in bedsore prevention and to encourage them to come up with creative, low-tech solutions of their own. “It was a combination of education, cheerleading and something like systems engineering,” Dr. Lynn recalled.

Nutrition including additional protein, special mattresses made of high-density foam to reduce pressure in key areas, keeping feet elevated, repositioning frequently, keeping incontinent residents dry with routine changes, and proper fitting clothes are easy low tech solutions to preventing the developement or worsening of pressure ulcers. 

Clinicians document four stages of pressure ulcers, in which Stages 1 and 2 are superficial sores and Stages 3 and 4 are deep wounds that result from death of the skin and underlying tissues.

Dr. Horn, of the Institute for Clinical Outcomes Research, praised the collaborative as “the first major national effort driven by Medicare to reduce pressure ulcers.” But she said that better outcomes could be achieved if more nursing homes improved their documentation, so that all of the information on a given resident, including details on eating, urinary and bowel function, appeared on a single sheet, with key reminders to nursing assistants and other staff members about best practices.

Bedsores are “a major quality-of-life issue, and a self-esteem issue,” said Joanie Jones, a nurse at David Place in Nebraska. “No one wants to have sores on their bottom. I don’t care how old you are. You still want your skin intact.”

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Studies show a significant decline in quality of nursing home care for blacks compared to whites.
Elderly black Americans in nursing homes get worse care than that enjoyed by their white counterparts.  "If you're black, you're much more likely to get your care in a nursing home that's not so good, relative to nursing homes that are serving predominantly white patients," Dr Vincent Mor, head of the department of community health at Rhode Island-based Brown University's school of medicine, told AFP on Tuesday.

Mor was a lead author of the study which looked at "racial segregation in US nursing homes and its relationship to racial disparities in the quality of care."  The study cited race data from nursing homes found US nursing homes remain relatively segregated by race.

"Blacks are much more likely than whites to be located in nursing homes that have serious deficiencies, lower staffing ratios, and greater financial vulnerability," the study showed.

Another study led by Brown University researchers and due to be published in June in the Health Services Research medical journal, looked at the rate of hospitalization of nursing home residents.
That study showed that 24.1 percent of black nursing home residents required hospitalization  compared with 18.5 percent white residents.   It found that nursing homes "with high concentrations of blacks had 20 percent higher odds ... of hospitalization than residents in nursing homes with no blacks", and linked the quality of care to the reimbursement policies of Medicaid, the US program for those unable to pay for healthcare.

The rate of hospitalization was an indicator of performance, as were "a whole variety of different measures of quality in terms of regulatory compliance, staffing levels, and so on," Mor explained.

"Both studies clearly suggest that nursing homes which have a predominance or much higher proportion of African-American residents perform more poorly," Mor said.

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U.S. Senator Barack Obama today released a statement on the report in the New York Times on nursing homes.

"The news that some private equity firms have been boosting profits at the nursing homes they own by cutting essential staff and compromising the quality of care for our seniors is unconscionable and unacceptable. America's workers and America's seniors deserve better, and the American public deserves to know exactly what's going on in these nursing homes."

'I led the fight in Illinois to pass the Hospital Report Cards Act that required hospitals to disclose details on nurse staffing and the quality of care so that the everyone was aware how well their health care system worked. When I'm President, this kind of transparency will be a part of my universal health care reform that provides every American with affordable, quality health care."

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I do not understand how nursing homes continue to say that they can't make any money taking care of their residents.  The corporate executives of Manor Care will get more than $200 million for their sale to the Carlyle Group.  See the article here.

The head of America’s biggest nursing-home company is about to get intensive financial treatment. 

Chief Executive Paul Ormond will receive $118 million to $186 million from cashing in his company stock when the deal is completed this year.  Sixteen other top executives and recently retired officers at the firm to be purchased by the Carlyle Group, of Washington, can receive a total of $68 million for their stock.

In total, Manor Care officials stand to receive $200 million or more from their stock holdings.

The amount to be paid by Carlyle, a global private-equity firm that owns stakes in more than 500 companies and real-estate developments, may not be known for weeks.

The buyer said it will purchase Manor Care for $6.3 billion and hopes to complete the deal by the end of the year.

Mr. Ormond, CEO and chairman of the company that had $167 million in profits on $3.6 billion in revenue last year, is typically among the top-compensated corporate CEOs locally each year. Last year, he was compensated $18.8 million, an SEC filing shows.

The biggest chunk of looming stock payouts from Carlyle are to Mr. Ormond, whose 1.8 million company shares will be worth more than $118 million. They could be worth another $68 million if options on another 1.9 million shares he has are exercised for prices ranging from $20 to $53 each.

But the most recent regulatory filings show $55.5 million in stock payments could go to R. Jeffrey Bixler, former vice president and general counsel; Geoffrey Meyers, former executive vice president and chief financial officer; and M. Keith Weikel, former senior executive vice president and chief operating officer.

Company officers, directors, key employees, and some retirees stand to collect about $200 million for their existing stock, and possibly more than $250 million if unexercised stock options can be cashed in, the new SEC filings show.

Manor Care, No. 565 on the Fortune 1,000 list of the largest U.S. corporations, was once part of Owens-Illinois Inc. and started acquiring health-care facilities in the early 1980s. It spun off and became Health Care & Retirement Corp. and in 1998 merged with Manor Care Inc. of Gaithersburg, Md.

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NEW YORK (MarketWatch) -- Manor Care Inc. has agreed to be acquired by private-equity firm Carlyle Group for about $6.3 billion in cash, the nursing-home operator said Monday.
Under terms of the deal, Manor Care's stockholders will receive $67 in cash for each share of common stock they own.
This represents a premium of less than 3% to Friday's closing price of $65.29, but it's 20% higher than Manor Care's $55.75 price on April 10, the day before the company announced it was exploring strategic alternatives.

This sale proves the healthy financial condition of the nursing home industry, and the lack of need for so called tort reform to insure their profitability.

for more information about Carlyle Group, click here.

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 Police are investigating claims that a 91-year-old woman was raped at a nursing home.

The director of The Life Care Center says once they learned of the allegations on June 4, they immediately called the Department of Social and Health Services, Federal Way Police and the woman's guardian.

Police say the rape happened about a month ago.

The family of the woman has removed her from the facility. The alleged rapist has been placed on leave during the investigation.

I wonder if they did a criminal background check or if they asked the suspect to undergo a polgrapg examination.

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I found a great website that contains many of the standards of care for various specialities related to geriatric care.  Here is the website.

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