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

McKnight's had an article about a decision in Colorado regarding the enforcement of an arbitration clause in a nursing home case.  The Colorado court ruled that a healthcare proxy does not have the authority to sign an arbitration agreement on behalf of a nursing home resident.  Under Colorado law, a healthcare proxy is only empowered to make medical decisions on behalf of another, including “provision, withholding, or withdrawal of any health care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient's physical or mental health or personal care,” the Bureau of National Affairs reported.

In the case of Lujan v. Life Care Centers of America, Colorado, Alvin Lujan signed an arbitration agreement, waiving jury trial rights, when admitting his mother, Estella Lujan, to the Life Care Centers of America nursing home. She died three days later, and a wrongful death claim was filed against the facility. Life Care Centers argued that admission to a nursing home is a medical decision and, therefore, the Colorado law applies.  But the Colorado Court of Appeals determined that the signing of an arbitration agreement does not fall under the specific definition of the authorities given to a healthcare proxy. As a result, the Lujan family had the right to sue the facility.

In October, the Nebraska Supreme Court arrived at a similar decision regarding the roll of patient surrogates
 

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Aboutlawsuits.com reported a recent jury verdict in a nursing home case in California.  The jury compensated the resident more than $1.3 million, finding that the injuries she suffered were a result of nursing home neglect.  The case involved a preventable fall.

Elaine Stinson, who suffered from Alzheimer’s disease and was recovering from a recent hip surgery, was allowed to fall at Leisure Palms nursing home in Fallbrook, California. As a result of the fall, Stinson suffered a punctured lung, broken ribs and head contusion. The staff did not contact Stinson’s doctor or family, and no medical treatment was provided until after her husband found her unresponsive during a visit the next morning.  Stinson spent 10 months recovering from the elder neglect injuries at a different nursing home.  The staff at the facility was not properly trained and failed to provide the proper level of care given a prior determination that she had a high risk of falling and wandering.

Stinson suffered three other falls at the nursing home. The verdict in the nursing home neglect lawsuit included $88,000 for past medical bills, $500,000 in general damages and $750,000 in punitive damages.

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Consumer Affairs had a revealing article about the dramatic decline of medical malpractice payments to victims of malpractice.  This proves once again that there is no need for tort reform or taking away consumers rights to a jury trial and adequate compensation.

The article mentions that medical malpractice payments were at or near record lows in 2008.  A study released by Public Citizen suggests the decline indicates that a lower percentage of injured patients received compensation, not that health safety has improved.

Medical malpractice is so common, and litigation over it so rare, that between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim, according to Public Citizen’s analysis of medical malpractice payment data and the best available patient safety estimates.

For the third straight year, 2008 saw the lowest number of medical malpractice payments since the federal government's National Practitioner Data Bank began tracking such data in 1990. The 11,037 payments in 2008 were 30.7 percent lower than the average number of payments recorded by the NPDB in all previous years.

Ratios of payments per capita and per physician have fallen even lower compared with historical norms. There were 13.5 payments per million physicians in 2006 (the most recent year for which the number of physicians is available), which is 29.2 percent lower than the average in previous years

The value of payments in 2008 (as distinct from the number of payments) was the lowest or second lowest on record, depending on the method used to adjust for inflation.

The cost of the medical malpractice liability system -- if measured broadly by adding all malpractice insurance premiums -- fell to less than 0.6 percent of the $2.1 trillion in total national health care costs in 2006.

The cost of actual malpractice payments fell to 0.18 percent -- one-fifth of 1 percent -- of all health care costs in 2006. Annual malpractice payments have subsequently fallen from $3.9 billion in 2006 to $3.6 billion in 2008.

"Any way you measure it, medical liability accounts for less than 1 percent of the country's health care costs, and the vast majority of victims receive no compensation whatsoever," said David Arkush, director of Public Citizen's Congress Watch division. "These are people who died or were left with serious permanent injuries -- out of work, with enormous medical costs for the rest of their lives -- and they and their families are getting nothing from the doctors and hospitals responsible."

Despite the hysteria surrounding debates over medical malpractice litigation, experts have repeatedly concluded that several times as many patients suffer avoidable injuries as those who sue.

The best known such finding was included in the Institute of Medicine's (IOM) 1999 study, "To Err Is Human," which concluded that between 44,000 and 98,000 Americans die every year because of avoidable medical errors.    Fewer than 15,000 people (including those with non-fatal outcomes) received compensation for medical malpractice that year, and in 2008, the number receiving compensation fell to just over 11,000.

The Joint Commission learned about 116 occasions in which surgeons operated on the wrong part of a patient’s body in 2008 and 71 times in which foreign objects were left inside patients’ bodies. Health experts call these "never events," meaning that they simply should not happen at all.

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McKnight's had another article on the Fairness in Nursing Home Arbitration Act.  This bill would prevent nursing homes from using pre-dispute arbitration agreements as a way to take away residents' rights to a jury trial. The bill is supported by both Republicans and Democrats and should be able to pass without much difficulty. 

Sens. Mel Martinez (R-FL) and Herb Kohl (D-WI) reintroduced their measure in an effort to "restore the original intent of arbitration laws [and] ensure that families will not have to choose between quality care and forgoing their rights within the judicial system."    The version of the bill introduced in the last session of Congress was approved by the Senate Judiciary Committee, but never came to a full floor vote. The bill does not prohibit the use of all arbitration agreements by nursing homes, only pre-dispute agreements.   Arbitration agreements could still be used after a dispute arises, though the bill would make them a voluntary matter.
 

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The Pittsburgh Tribune Review had an article about the recent jury trial against a nursing home in a wrongful death lawsuit in which the family of a woman claims the nursing home was negligent in her care and caused her death.  The family of Olive Shaffer contends she received inadequate care during her stay at Harmon House in Mt. Pleasant.   Shaffer fell several times while living in the nursing home and died July 22, 2003, from injuries she sustained in her falls.

Jurors were given evidence that workers at the nursing home falsified records, violated internal policies which make up the standard of care, and were negligent in supervising Shaffer.   The Shaffer family contends that Shaffer fell several times in the nursing home in June, and the staff made insufficient efforts to prevent her from taking more tumbles.

The nursing home had a management company (Grane Healthcare Co) that was responsible for implementing policies and procedures and training staff on fall prevention. In the lawsuit, the family said Shaffer fell twice on July 15, 2003, and she suffered catastrophic injuries, including brain swelling. She died from her injuries a week later, according to the suit.

The nursing home's defense is 1) Old people fall  2)  Falls happen and 3) Falls are not preventable. The only way to prevent it is to tie them up.

I hope the jury listens to the evidence and the defense's frivolous and misleading arguments and awards substantial damages.

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Most Vulnerable Americans Protected By Fairness in Nursing Home Arbitration Act

Bipartisan bill will ensure nursing home corporations don’t eliminate seniors’ legal rights

The most vulnerable Americans and their families will no longer be forced to give up their legal rights and sign one-sided mandatory binding arbitration clauses under new legislation introduced in the U.S. Senate.

The bipartisan Fairness in Nursing Home Arbitration Act of 2009, introduced by Sen. Mel Martinez (R-FL) and Sen. Herb Kohl (D-WI), will prevent nursing homes from deliberately hiding clauses within the fine print of contracts that force seniors to surrender their right to trial by jury and enter an unfair and one-sided mandatory binding arbitration process. The bill was introduced in the U.S. House last week by Rep. Linda Sanchez (D-CA).

“The Fairness in Nursing Home Arbitration Act will make sure negligent nursing home corporations can be held accountable by our most vulnerable citizens,” said American Association for Justice President Les Weisbrod. “This bill will prevent nursing home corporations from unfairly preying on seniors and stripping away their legal rights. Arbitration should only be voluntarily, not hidden away in the fine print of contracts during our seniors’ greatest time of need.”

The Fairness in Nursing Home Arbitration Act of 2009 will help people like Minnesota resident Dean Cole, who received unconscionable care from a negligent nursing corporation. Suffering from dementia, Dean needed help eating meals every day; but during his 22 day residency, Dean lost 20.6 pounds without his physician or wife ever being notified. After being admitted to the hospital, he was found to be severely dehydrated, with a water deficit near 10 liters. Dean died less than a month later. His family sought justice by bringing a suit against the nursing home for negligent care, but learned they would be forced into one-sided mandatory binding arbitration on the corporation’s own terms and denied the right to trial by jury. The case is still pending.

For more information on mandatory binding arbitration, visit: http://www.justice.org/newsroom.

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The American jury is at the heart of the justice system.  The right to a jury trial is a constitutional right.  But the GOP in Tennesse want to limit the amount a jury may award in cases involving the abuse and neglect of America's most vulnerable citizens.  Arbitrary caps on damages do not work.  If they want to prevent lawsuits, they should require better care including increasing staffing and training.  Advocates for the elderly told a special committee studying the effects of litigation on the nursing home industry that better care would prevent lawsuits.

The main discussion at the committe meeting was on whether caps should be placed on damages in lawsuits against nursing homes. Senate Speaker Ron Ramsey has made malpractice caps for nursing homes part of his legislative agenda for the year. The Republican said limiting damages is necessary because he believes the industry is being targeted by lawyers.

But Daniel Clayton, president of the Tennessee Association of Justice, told the committee that the focus should be on improvement of care rather than capping damages. "If care is good, lawsuits will go down," Clayton said. "If care is bad, lawsuits will go up." Last month, the Centers for Medicare and Medicaid Services released a report that ranked Tennessee's nursing homes worst in the nation and gave 30 percent of them the worst rating possible.  Why would you provide immunity to an industry that is hurting your voters and constituents?

The ratings are based on state inspections, staffing levels and quality measures, such as the percentage of residents with pressure sores, urinary tract infections and declining mobility. Each nursing home was given an overall score of one to five stars, with five stars being the best. The ratings are based on as much as three years of data, ending in November 2008.

Only Louisiana and Georgia ranked lower than Tennessee in the report, which evaluated 16,000 nursing homes nationwide.

Patrick Willard, AARP Tennessee's advocacy director, said his group is studying litigation of nursing homes and preliminary results show the state ranks below the national level when it comes to staffing at nursing homes. "If your staffing level is below the national level, you're more than likely to be sued," he said.

Committee member Charles Curtiss agreed. The Sparta Democrat said his mother has been in two nursing homes, and he noticed their staffing was not up to standard. "I'm not for saying we're going to cap liability, and then let the service be exactly as it is today," Curtiss said. "If they're going to give the operators a break, then certainly we've got to get something for those people who are in the nursing homes, and that would have to be better care."

Rep. Henry Fincher said he's against capping damages, and shows his disdain for the idea in calling it "the kill old people act." "I don't think that limiting liability is the way to make sure that people are treated better," said the Cookeville Democrat.

"If you take away people's chance to recover damages for wrong things done to them, you're protecting the wrongdoer. It turns the whole idea of responsibility on its head."

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Multimillion verdict against Life Care thrown out (09/26/08 Cleveland Banner) By Linda Womack

Life Care Centers of America was given another trial when an $11.5 million verdict was thrown out.  The nursing home was found to have been negligent and reckless in the death of a former resident. Former Circuit Court Judge Ginger Wilson Buchanan was the judge.  Buchanan did not offer a reason on why the original verdict was set aside.

A Bradley County Circuit Court jury awarded the multi-million verdict in compensatory and punitive damages as a result of the June trial. Dennis Matthews, son of Verdie Matthews a former Life Care resident, filed a lawsuit against Life Care Centers of America alleging the nursing home allowed his mother to develop severe dehydration and severe malnutrition which ultimately played a role in her death.   The jury found Life Care Centers acted negligent and reckless in a three week trial in June.

Ms. Matthews was a resident at the nursing home for four weeks when she was admitted to the Bradley Memorial Hospital on May 1, 2006. She died three days later. Her cause of death was determined by the hospital to be severe nutrition and severe dehydration.

Medical records indicated at the time of Ms. Matthews admission to the nursing home her weight was reportedly 105 pounds. At the time of her death, four weeks later, she reportedly weighed 92 pounds.   Throughout the trial Mr. Matthews' attorney, Thomas Hornbuckle, argued the nursing home falsified fluid and nutrition intake records for Ms. Matthews and did not properly feed and hydrate her.

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A jury found Life Care Centers of America guilty of negligence. The jury awarded $1.5 million in compensatory damages to the family of a former resident who died as a result of the nursing home's neglect and negligence.

Life Care Centers of America was sued by Dennis Matthews, son of the late Verdie Matthews. He proved the nursing home allowed Mrs. Matthews to develop severe dehydration and malnutrition which caused her death. 

Thomas Hornbuckle, attorney for Matthews, alleged the nursing home intentionally acted recklessly by falsifying fluid and nutrition records of Mrs. Matthews. Hornbuckle said evidence and witnesses had proved Life Care acted negligently and was at fault in the death of Mrs. Matthews.

Mrs. Matthews, 83, was a resident of the facility from the beginning of April 2006 to May 1, 2006. She was admitted to Bradley Memorial Hospital on May 1, 2006, and died on May 4, 2006. Medical records indicate at the time of admission to the nursing home Mrs. Matthews weighed 105 pounds. At the time of her death four weeks later, she weighed 92 pounds.

Attorney Steve Hornbuckle confirmed the jury found Life Care Centers guilty of negligence in contributing to the death of Mrs. Matthews.   The jury also found the nursing home acted "recklessly," according to Hornbuckle.

The jury will reconvene Monday morning to deliberate on awarding punitive damages. Both attorneys will be given a chance to argue the case.

Jury will decide punitve damages.

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Dave Johnson wrote on the Huffington Post on June 17, 2008 the following article about how arbitration screws consumers and victims of corporate malfeasance.

Does your credit card or bank loan agreement have an "arbitration clause?" More and more consumer-oriented contracts and "agreements" have clauses specifying that disputes must go to arbitration rather than our civil justice system. The justification for this is that arbitration saves the time and expense of working within our legal system. But here's the thing: the corporations choose the arbitrators and every arbitrator knows they will never, ever, ever, ever (ever) get another job if they rule against the corporations. Never.  And guess what: 98.8% of arbitrations end up in favor of the corporations. This is not a surprise.

The Progressive States Network's newsletter has a story about this today, Arbitration:"Set up to squeeze small sums of money out of desperately poor people".

The headline above is a quote from former West Virginia Supreme Court Justice Richard Neely, describing what his role was as an arbitrator at the National Arbitration Forum (NAF), a for-profit company hired to enforce mandatory arbitration clauses for credit card consumer loans. "NAF is nothing more than an arm of the collection industry hiding behind a veneer of impartiality," says Richard Neely.

In a devastating expose by BusinessWeek, Neely and other former arbitrators describe an arbitration system stacked completely against consumers -- a system where creditors win 99.8% of all disputes involving companies ranging from Bank of America to Sears to Citgroup. Arbitration clauses buried in the fine print of credit card offers means consumers lose the right to have disputes decided in an independent court and instead are forced into corporation-selected arbitration firms.

The BusinessWeek story mentioned in the Progressive States Network story is titled, Banks vs. Consumers (Guess Who Wins).

This story about credit card companies taking unfair advantage of consumers is one more attack on citizen rights to access our own legal system (one more of so many attacks). Think about what is happening here. First the big corporations fought against "regulations" which are the rules that We, the People set up requiring safe workplaces or environmental standards, or products that do not injure people, etc. Then when fewer regulations of course resulted in worker or consumer injuries or toxic spills or other harms the inured parties filed more lawsuits asking the companies to make good. So in response to these lawsuits the corporate-financed "tort reform" movement came along, working to limit the ability of citizens to be compensated for the results of corporate bad behavior. The result has been fewer regulations preventing harms and more restrictions on citizen access to courts where we can seek damages after we are harmed.

I didn't even bring up the corporate-conservative movement efforts to install their own business-friendly judges in the courts.

But even those erosions of our access to justice has not been enough for the greedy corporations. Now there is arbitration: clauses that show up in contracts and agreements that remove your ability to take a dispute to the courts at all! And the judges in these courts are dependent on the corporations for their livelihood!

Deregulation, tort reform and now arbitration that is rigged against the consumer. Drip, drip, drip. One after another the big corporations are eroding the rights of citizens.

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