Important Verdict against Fundamental entities

I am happy to report that Moody & Warner, P.C., an employment law firm in New Mexico, specifically Whitney Warner, got a verdict in federal court against various Fundamental/THI entities last week in a wrongful discharge case. Significantly, the verdict was against multiple THI/Fundamental entities because the jury found that they operated as a “single employer.” I think this is extremely important to all of us who try to hold these parent entities accountable.

 

Mr. Prendergast had been treated horribly by his employer THI/Fundamental entities which includes Fundamental Long Term Care Holdings, Fundamental Clinical Consulting, Fundamental Administrative Services, THI of Baltimore, Inc. and local operators in an elaborate corporate scheme. These entities are represented by Lori Proctor. This case was about the maintenance director, Mr. Prendergast, who was fired after “corporate” decided he was too concerned for the health of the residents, and complaining about unsafe and unsanitary practices such as having to paint over mold in the bathrooms, delays in approvals for repairs, and otherwise being aware and willing to talk about how dangerous and run down this facility was.   These kind of unsafe and unsanitary practices will lead to dangerously high infection rates.  The facility has thankfully been closed down.  

The Tenth Circuit weighs four factors in considering “whether two nominally separateentities constitute an integrated enterprise or single employer: (1) interrelations of operations; (2)common management; (3) centralized control of labor relations; and (4) common ownership andfinancial control.”   Here is the Order denying Defendants' Motion for Summary Judgment on the "single employer" rule or "integrated entity" enterprise.

Whitney Warner is a phenomenal lawyer who put a tremendous amount of thought and effort into this case.   Although this does not represent a huge damages award, the significance of this verdict is invaluable.

 

Lack of staffing led to death and cover up

Tony Bartelme of The Post and Courier had a great article about Alzheimer's, violence, and a cover up in nursing homes using the story of Dwayne Walls. It is a tragic story and clearly preventable.  Below is a short summary of the article.  Dwayne Walls was a resident of Veterans' Victory House, a large nursing home near Walterboro, who suffered Alzheimer's.  One day, they moved Walls to another room and put a dangerously psychotic patient in his old one. His wife warned nurses that Walls would try to return to his old room. "They said they were going to really watch him. But at midnight, I got a call that he had gone to his room and gotten beaten to a pulp," she said.

One night Walls went into another patient's room and climbed in an empty bed. Moments later, another patient walked in. He was 88 years old and also had dementia.  A nursing aide saw the man hitting Walls with his cane. Walls was on the floor, bleeding and unconscious.  An ambulance took Walls to the emergency room and phoned Walls' wife, Judy Hand. That night and over the next four days, they told her that Walls had merely fallen; they didn't mention the beating. Walls spent the next week in bed, and Hand was at his side when he died.   The nursing home's doctor later would write in Walls' file that his patient had contracted fatal pneumonia after becoming "immobile," but that the beating didn't account for this immobility.

In December 2006, investigators with the U.S. Department of Justice visited the facility: Staff gave patients wrong foods and medications and too often used physical restraints to control behavior problems. They found that the facility was poorly equipped to handle combative Alzheimer's patients.

"There appears to be no formal behavior program for residents diagnosed with Alzheimer's disease, placing residents at heightened risk for the use of physical or chemical restraints to control behavior, and placing them at heightened risk of physical assault by other residents who may become frustrated at their repetitive speech or wandering," investigators concluded.

The state Department of Mental Health owns the facility but has a contract with a private company called Advantage Veterans Services of Walterboro to run it. The company is affiliated with HMR Advantage Health Systems, which is based in Easley and operates 26 nursing homes in South Carolina and elsewhere in the Southeast.

Nearly 80,000 people in South Carolina have Alzheimer's, enough to fill the University of South Carolina's Williams-Brice Stadium, and that memory loss isn't the disease's only troubling effect: More than two-thirds will exhibit some form of agitation or combative behavior.  Aggressive behavior is a normal part of the brain's breakdown, nursing homes don't hire enough people to meet the needs of these patients. Many blacklist Alzheimer's and dementia patients with histories of aggression, leaving already stressed families and loved ones with few options.

There is no cure for Alzheimer's, but doctors are zeroing in on its causes. One leading theory involves proteins. Healthy people have stringlike proteins in their brain cells that normally curl like unfurled ribbons. These ribbons help nourish the cells. But in Alzheimer's patients, these ribbons get tangled, destroying the cells in the process, along with a person's memories and functions that control behavior.

 As happens with about 70 percent of Alzheimer's patients, Walls grew more agitated as the disease marched through his brain, though he was by no means the only person in the wing suffering these effects.  In 2008, staff at the Veterans' Victory House documented in his medical records how another resident pushed him to the floor one month, and how a month later Walls hit another resident in the head with his fist. In June 2008, a resident hit another, who fell into Walls and knocked him to the floor. In July, a staff member found Walls in another resident's bed, his fists balled.   By August, a month before Walls' death, staff noted that he was "aggressive to others and himself," particularly when he was scared. But then the storm clouds cleared. Staff noted on the day Walls was beaten that he had no behavior problems and was moving around well.

Walls had fallen and needed to go to the hospital for X-rays, a nurse said. She didn't mention the beating, or that a deputy had been called to investigate.  Hand drove to Walterboro the next Monday morning for a visit. "I walked into the room and gasped. He was black and blue all over, swollen and on oxygen. I ran out of the room and got a nurse. They came and I asked what had happened." Dwayne had fallen, they told her. Throughout the day, the home's employees stopped by to visit Walls to see how he was doing.  Later that afternoon, four days after the attack, she approached a staffer. "I said, 'He couldn't have possibly gotten that from a fall.' She looked at me and said, 'No one told you? He was beaten.' "  Colleton County Coroner Richard Harvey told her over the phone that the beating contributed to Walls' death, but she was surprised when the death certificate listed the cause as natural and didn't mention the altercation. In an interview, Harvey said he did an autopsy but the results showed that Walls died of pneumonia, not from any other injuries.

The doctor wrote the summary in November, two months after Walls' death, and after an ombudsman hired by the lieutenant governor's Office on Aging visited the home. The agency had received a complaint about "residents that beat other residents," low staffing levels and "residents sitting in soiled diapers."  After the visit, the ombudsman noted the altercation involving Walls but said the agency doesn't investigate resident-to-resident abuse.

The ombudsman nonetheless concluded, "There is a shortage of staff," after looking at the facility's staffing logs. The reports showed the Alzheimer's unit had just one licensed nurse on duty for 52 patients on morning shifts before and after Walls' attack. On one night shift, the wing had no licensed nurse at all. The ombudsman asked the nursing home to follow state regulations, which requires at least two licensed nurses during the morning shift and one on the night shift.

More recently, an investigator with the state Department of Health and Environmental Control made an unannounced visit to the home and found it hadn't properly reported the incident involving Walls and the 88-year-old man who beat him. State law requires nursing homes to report "serious incidents" involving residents who assault others.


 

 

 

Sale of nursing home building nets big profit

Nevada Appeal had an article about the sale of the building where Evergreen Mountain View Health and Rehabilitation Center operates for $8.2 million from Evergreen’s parent company, Vancouver, Wash.,-based Evergreen Healthcare.  Chicago based Aviv Asset Management bought the building and will keep the same management team.  Evergreen took over management of the 146-bed nursing home in 2002.   It bought the building for $5 million in 2005.  So in less than 4 years, the value of the building itself (not the on going nursing home operation) increased by $3.2 million.  some thing smells fishy about this deal.

Josh Kocheck, asset director for Aviv, said Aviv is a real estate business and will serve only as a landlord.  He said people are concerned when a nursing home gets a new owner, but Aviv has no intentions of running a healthcare company.   Evergreen Healthcare runs other nursing homes. It has 58 nursing homes concentrated in Western states.

Aviv owns about 125 nursing homes across the country, according to the company.

Evergreen Mountain View has had several problems with government agencies since its parent company started managing it.   It was the only nursing home in the state that made the Centers for Medicare and Medicaid Services list of 131 worst nursing homes last year. As a “special focus facility,” the state checked the nursing home twice a year rather than the usual once a year from 2004 to 2008.

 

 

Novovirus hits SC nursing home

Carolinalive.com had an article about the recent outbreak of a highly contagious virus at a Murrells Inlet nursing home. The South Carolina Department of Health and Environmental Control (DHEC) reports as many as 75 people have suffered symptoms of norovirus at the NHC nursing home in Murrells Inlet.

The virus is a stomach flu and can be spread if infection controls are not in place and practiced among the staff in the nursing home.   This is of particular concern for the elderly -- as they can easily become dehydrated and can cause fatalities.

The nursing home is not releasing any information.  No visitors will be allowed until the virus is under control.
 

Nursing home and parent corporation sued

The West Virginia Record had an article explaining why a resident's family sued the nursing home that neglected her and the parent company that controlled the budget, staffing, and equipment used at the facility.  

The article states that the woman died from injuries sustained in a Dunbar nursing home seeking compensatory and punitive damages. The suit is against Sunbridge Care and Rehab and the Sun Healthcare Group, Inc.

McCarty was admitted to Sunbridge Care and Rehab at the age of 79. Upon her admission, McCarthy suffered from dementia and could no longer handle her affairs. Her cognitive and physical skills were impaired. She died as a result of the injuries she sustained in a fall at the facility.

Among the injuries she sustained while at the nursing home were falls, weight loss, dehydration, malnutrition, constipation, a perforated bowel, infections, and ultimately, her death.  She suffered injuries, disfigurement, extreme pain, suffering, and mental anguish.

"The scope and severity of the recurrent wrongs inflicted upon Ferris McCarthy while under the care of the facility accelerated the deterioration of her health and physical condition beyond that caused by the normal aging process and resulted in physical and emotional trauma," the suit says.

NHC's Press Release re: aquisition of more SC nursing homes

NHC Acquires Charleston, SC Facilities

National HealthCare Corporation (AMEX:NHC)(AMEX:NHC.PR.A), one of the nation’s leading operators of senior care services, announced today that it has added Trinity Mission Health and Rehabilitation of Charleston and Trinity Mission Assisted Living of Charleston in Charleston, South Carolina as affiliates effective August 1. NHC purchased the 132-bed skilled nursing and rehabilitation facility and the 60-bed assisted living facility for $13.25 million.

This acquisition increases NHC’s operations that are owned and managed in the South Carolina region to over 2,000 beds in 13 locations. The administrator for the new facilities, now renamed NHC HealthCare-Charleston and NHC Place-Charleston, is Angela Atkinson. Ms. Atkinson, previously with Trinity Mission of Charleston, joins NHC with 15 years of experience in healthcare administration, including licensure as both an assisted living and nursing home administrator.

“The superior quality of NHC’s services to the senior care community in the state of South Carolina is well known,” Steve Flatt NHC’s Senior Vice President of Development said. “While we have been a strong provider in the Upstate and Midland region for over 30 years, this additional location allows us to better serve the Low Country area as well. We are grateful for the help and cooperation of the staff of the center in making this a smooth transition.”

NHC has plans for more growth in the Low Country of South Carolina as construction is expected to start next month on a 120-bed skilled healthcare and rehabilitation center in Bluffton near Hilton Head Island.

NHC operates for itself and third parties 76 long-term health care centers with 9,772 beds. NHC also operates 32 homecare programs, seven independent living centers and 23 assisted living communities. NHC’s other services include managed care specialty medical units, Alzheimer’s units, hospice and a rehabilitation services company. Additional information about NHC, including the company’s Form 10-K, Form 10-Q, annual report and press releases, is available on our website at www.NHCcare.com.

Statements in this press release that are not historical facts are forward-looking statements. NHC cautions investors that any forward-looking statements made involve risks and uncertainties and are not guarantees of future performance. All forward-looking statements represent NHC’s best judgment as of the date of this release.


Contacts
National HealthCare Corporation
Gerald Coggin, Sr. V.P. Investor Relations, 615-890-2020

 

Poliakoff & Associates, P.A., is one of South Carolina’s most respected and distinguished law firms. The Poliakoff firm began nearly 60 years ago by three attorney brothers: Matthew, J. Manning, and Bernard. With a history of believing the justice system...More...