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

The Honolulu Advertiser had an article about the sentencing of CNA Mark Genetiano  He was
sentenced to only a year in prison and five years of probation for molesting four helpless elderly women in a retirement home. Genetiano pleaded guilty to six counts of third-degree sex assault, admitting that he assaulted two of the victims twice while working at the Kāhala Nui retirement home.

The victims ranged in age from 89 to 92 when the crimes took place in May and June of last
year. All four women suffered from Alzheimer's disease or dementia and were "mentally defective, mentally incapacitated or physically helpless," prosecutors said.

According to a police report, three of Genetiano's co-workers reported that he pinched the
patients' breasts while they were changing clothes or in the bathroom. The co-workers said the women tried to fend him off by waving their arms and yelling at him to stop and that Genetiano laughed at them.  How do you properly compensate someone for that kind of experience?

In a somewhat related article in the Honolulu Advertiser, the authors discuss the lack of liability insurance among nursing homes in Hawaii.  This is common in the vast majority of states including South Carolina.

Industry officials believe as many as half the roughly 500 licensed care homes in Hawai'i don't carry liability insurance, though no one has reliable data on that.  The percentage probably is much greater among Hawai'i's unlicensed care homes, which industry leaders estimate number anywhere from a few dozen to close to 500.

Liability insurance protects the insured from claims made by others who suffer injury at the business. The breadth of coverage can vary significantly depending on the terms of the policy. But it also provides an avenue for the injured person to seek redress, particularly if the harm is caused by a hazard at the home or negligence.

Without liability insurance, an injured senior would have no recourse to pursue a claim — short of suing the caregiver, a costly and time-consuming process.  States should require nursing homes who accept taxpayer money through Medicare and Medicaid to carry minimum insurance.  A reasonable number would be $1 million per claim or 20% of gross revenue from Medicaid and Medicare.  There should be a reasonable consensus as to a proper amount.

Oregon, for instance, does not require liability insurance for homes with five or fewer residents, a state spokeswoman said, but facilities with six or more that take Medicaid patients must have coverage. In Washington state, all facilities that take Medicaid clients are required to have liability insurance.

Mandating basic coverage also would nullify the unfair advantage care-home operators without insurance have over all the others, according to Medy De Lara, president-elect of the alliance and a care-home owner for 24 years.  A bare-bones policy costs less than $700 per year for an entire facility.

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The Clarion-Ledger had an article discussing how corporate lobbyists and campaign contributions prevent necessary reforms to nursing homes.  Because of the influence of insurance companies and greedy corporate owners of for profit nursing home chains, Mississippi nursing homes still have the right to operate with little or no liability insurance.

 

The House passed House Bill 536 with bipartisan Republican support in that chamber. But the bill was killed in the Senate Insurance Committee, dying in Senate Insurance Committee Chairman Buck Clarke's pocket.

House Bill 536 would have required non-government nursing homes to carry the same $500,000 in liability coverage that government nursing homes carry.  Nursing homes owned by county hospitals or other entities covered by the State Tort Claims Board are covered for legal claims up to the statutory cap of $500,000 if a jury finds that a patient has been abused, neglected or otherwise sufficiently harmed in a covered facility. Yet a number of private nursing homes in Mississippi do not carry liability insurance sufficient to cover claims up to the statutory $500,000 cap.

Some carry so-called "eroding" policies that pay for the nursing home's defense lawyers out of the available liability insurance before a victim is compensated.

Is that fair to vulnerable patients in those private facilities? Is it fair for them to have paid taxes or have families paying taxes that subsidize the public nursing homes' tort claim coverage while the laws allow private nursing homes to be uninsured or under insured for the very same offenses against the elderly? No.

Campaign finance records show that in 2007 Gov. Haley Barbour got $50,000 from the Mississippi Health Care Association (MHCA), the association that represents many of the nursing homes, and $62,000 total from nursing home industry donors.

Campaign finance records show that in 2007, Lt. Gov. Phil Bryant received $50,000 from nursing home operator Ted Cain of Health Services, Inc., in Wiggins, $11,000 from MHCA and $63,250 total from nursing home industry donors.

Campaign finance records show that in 2007, House Speaker Billy McCoy, D-Rienzi, got $5,000 from Cain, and $3,000 from MHCA for a total of $8,000 from the nursing home industry. Clarke, R-Hollandale, in whose committee the nursing home liability insurance bill died, got $1,500 in 2007 campaign contributions from the nursing home industry.

In total, 2007 campaign finance records show that the Mississippi Health Care Association gave a total of $132,000 in contributions to legislators and statewide elected officials.

Lobbying records show in 2009, MHCA paid lobbyist Beth Clay $80,000 to represent the organization's interests.

In 2010, lobbying records shows that Vanessa Phipps Henderson, John Maxey, Josh Gregory and Quinton Dickerson are MHCA's registered lobbyists. Gregory and Dickerson are former paid consultants on Bryant's 2007 campaign.

Even after HB 536 died, Bryant still had another chance to accept Sen. Eric Powell's amendment to the Vulnerable Adults Act bill to include a requirement for nursing home liability insurance. But Bryant ruled the Powell's amendment was "not germane" to the Vulnerable Adults bill - a ruling that no doubt pleased the MHCA.

 

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The Oakland Tribune had an article about how many nursing homes refuse to carry insurance in an effort to limit their liability and fail to compensate residents who are injured or die as a result of their abuse or neglect.  The article discusses the case of Grover Brown.  Brown was 37 years old who developed pressure sores soon after arriving at the High Street Care Center in East Oakland.  One of the sores never healed properly. But once the wound did begin to fester, he wasn't moved, washed, monitored or medicated with antiseptic.  The wound got worse,  Surgeons had removed his tailbone because the wound had festered without treatment.  Even as the sore turned green and smelled foul indicating infection, the nurse in charge at the time told an aide that was the way "it was supposed to smell," according to Department of Public Health records.  The infection ate away at the bone through to the marrow despite repeated treatment orders from physicians to the staff of High Street Care Center.

Brown is suing High Street Care Center, which had a long list of citations from the Department of Public Health — 164 between 2004 and 2008. The facility was owned until December 2008 by Trinity Health Systems, whose president, Randal Kleis, has operated about a dozen facilities across the state under several corporate names.  But Brown likely won't see more than a token settlement from High Street Care Center because skilled-nursing facilities, nursing homes and assisted-living care facilities — charged with caring for the most vulnerable — are not required to carry liability insurance.   And Kleis' other assets are untouchable because they were legally registered as separate corporate entities — a common way operators shield themselves and their profits, said Kathryn Stebner, a lawyer who has been representing victims of nursing home abuse since 1987.   

The state Attorney General's Office, which is California's ultimate watchdog, has gone after fewer than a dozen problem nursing homes for elder abuse and neglect since 2000.  That leaves private attorneys to pursue the operators — almost always after the damage has been done.

Medi-Cal began reimbursing facilities for the cost of liability insurance in late 2004 with the expectation that care would improve. But the decision whether to carry insurance was left to nursing-home owners. There was nothing to mandate the improvement.

The incident was not an isolated mistake. Brown's lack of care was the consequence of an indifference to the health and safety of residents at the facility.  High Street Care Center had a record of poor care, according to records from the Department of Public Health:

On Dec. 7, 2004, an 82-year-old woman at High Street Care Center was suffering from a bed sore that had penetrated through her tendons and muscles to the bone. She was taken to a hospital, where doctors found she weighed 65 pounds and described her as "extremely emaciated." She went to a new nursing home and immediately began gaining weight.

In January 2005, inspectors discovered that the supervisor of dietary services was not certified.

Just two months after being admitted in March 2005, a 54-year-old breast cancer patient who had trouble swallowing lost 23 percent of her body weight. She dropped from 117 pounds to 90 pounds by May 2, 2005. But staff told her family she was gaining weight.

In December 2005, inspectors described finding a cockroach crawling around the base of trash cans full of dirty diapers in one of the rooms. A resident told inspectors that they were crawling around "all the time."

In 2006, a 59-year-old woman told staff at the Center for Elder Independence, a community day care program for elders she attended for treatment, that a certified nursing aide at High Street Care Center had used a washcloth to cover the woman's nose and mouth. When she cried out in pain for fear of being smothered, the aide hit her on the side of the head. A social worker alerted to the alleged abuse by High Street Care Center staff, also had reported the incident to the Public Health Department. The facility's administrator told inspectors that although the aide denied the allegations, he fired the aide and "believed something had happened to the resident."

Kleis has settled at least two previous wrongful-death lawsuits in the past six years, court records show. In each case, Kleis asserted he was losing money and could not afford insurance.

The MacArthur Care Center, run by Kleis under the company name Trinity Health Systems, had an extensive record of problems and lawsuits. The Department of Public Health cited the facility for 79 deficiencies between 2004 and 2009.

AARP spokesman Mark Beach said every responsible business should have liability insurance especially those like nursing homes and skilled nursing facilities that take care of the most vulnerable and dependent people. It fosters accountability and ensures people are compensated when something happens even if an owner declares bankruptcy, he said.

Having insurance, he added, "is the right thing to do."

 

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Court Hands Down Decision in Sevier County Nursing Home Case

 A Court in Sevier County, Arkansas decided today (April 17, 2009) that a family deserved $7 million for the neglect and wrongful death of its patriarch.   It was a record judgment for the county - the previous high was believed to be $1 million -but the family likely will never see any of the money.

John W. Minor, an 87-year-old DeQueen man, died after officials at a local nursing home neglected him to the point where his body was covered with 35 bedsores. The sores, many in advanced stages and infected, made it impossible to embalm his body when Minor passed away. 

Minor's family, including a wife, step-daughters and grandson, filed a lawsuit against the nursing home, Sevier Healthcare Inc., and its management company, Regional Management Inc., for negligence, violation of the Arkansas Long Term Care Resident's Rights Statute, and wrongful death.

The suit details how Minor also suffered from severe malnutrition, multiple urinary tract infections, pneumonia, severe dehydration leading to kidney failure caused by the neglect at the nursing home.  The injuries, "caused John W. Minor to lose his personal dignity and caused him to suffer extreme and unnecessary pain, degradation, anguish, otherwise unnecessary hospitalizations, emotional trauma, and death," according to the suit.

The lawsuit alleges the defendants, among many other things, tried to maximize profits by reducing staffing levels below what was needed to provide adequate care to residents. They failed to provide adequate care for Minor, to the point where their actions were "grossly negligent, willful and wanton, outrageous, reckless, malicious," according to the suit.

The family sought compensatory and punitive damages for medical expenses, pain and suffering, mental anguish, loss of life, and funeral expenses.

In a hearing today (April 17, 2009), the court, after hearing testimony from Minor's family, ruled for $3.5 million in compensatory damages and $3.5 million in punitive damages.

It is unlikely the family will see any of that money, because the former owner and director of both Sevier and Regional previously filed personal bankruptcy.

Wilkes & McHugh, P.A. attorneys and Minor's family learned this early in the litigation process, but saw the case through in an effort to bring awareness to the problem of nursing home abuse and neglect in the hopes of preventing others from receiving such horrific treatment, Priebe said.

The facility is still doing business under a new name and a new owner.
 

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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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Kaisernetwork.org has an article referencing a recent Wall St. Journal article showing how the nursing home industry is using mandatory arbitration to avoid compensating victims of abuse and neglect.  Below is an excerpt from the article:  

Nursing home residents and their families increasingly are "giving up their right to sue over disputes about care, including those involving death, as the homes write binding arbitration into their standard contracts," the Wall Street Journal reports.  According to the Journal, "Nursing homes have been among the biggest converts to the practice since a wave of big jury awards in the late 1990s."

The practice has "profound implications" on the nursing home industry, according to the Journal. An industry study released last year found that the average cost of settling cases has declined for nursing homes.

Consumer advocates and plaintiffs' lawyers have criticized the arbitration systems for nursing homes, saying that people too often do not understand whether the arbitration clauses are mandatory or that they are waiving their right to sue.  Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) introduced legislation that would prohibit nursing homes from requiring patients to sign an arbitration agreement as a term of service. Martinez said, "It is an unfair practice given the unequal bargaining position between someone desperate to find a place for their loved ones and a large corporate entity like a nursing home."

The American Arbitration Association, which is the largest arbitration provider in the nation, generally refuses to handle cases of nursing home arbitration and opposes arbitration requirements in nursing home claims. The American Health Lawyers Association has a similar stance, and other arbitration groups said they only accept the cases when the agreements are in compliance with law. Eric Tuchmann, general counsel for the American Arbitration Association, said that some patients "really are not in an appropriate state of mind to evaluate an agreement like an arbitration clause."

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The Denverchannell.com has an article about Colorado lawmakers prohibiting insurance companies and nursing homes from coercing residents to waive their right to a jury trial in exchange for recieving health care.  Excerpts are below:

Rep. Cheri Jahn believes more and more nursing homes are taking advantage of elderly patients and their families by including binding arbitration clauses in their contracts, and she is sponsoring legislation to prohibit the clauses.   The arbitration clauses mean that no matter how egregious the treatment, the patient can't file suit in public court to settle a dispute, Jahn said. The patient can only negotiate behind private doors with an arbitrator chosen by the nursing home, she said.

Jahn said she is drafting a late bill to ban binding arbitration agreements in long-term care contracts.   The Colorado Health Care Association, a trade organization representing the state's nursing homes, is opposed to the bill.

It takes tremendous courage for Rep. Jahn to propose this legislation since she will now be a target for the insurance groups and lobbyists for the nursing home industry.  She is my hero of the week!

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Oklahoma Center for Consumer & Patient Safety
PO Box 4481, Tulsa, OK 74159-0481

FOR IMMEDIATE RELEASE:

Contact: Hugh M. Robert, Ex Dir 918-850-0293 hugh@okccps.org

April 7, 2008

HOUSE COMMITTEE KILLS NURSING HOME INSURANCE REQUIREMENT:

REPLACES BILL TO FAVOR COMMITTEE CHAIR

Tulsa, OK – The Public Health Committee in the Oklahoma House of Representatives considered the amended version of the bi-partisan approved Senate Bill 1549 this morning. Just minutes before the committee meeting was scheduled to begin, Representative Cox, the owner of several nursing homes, submitted a committee substitute which stripped out the insurance requirement. The committee members voted 10-9 to consider the committee substitute, falling one vote short of being able to hear the bill in the form already approved by the Senate.

“It is sad that Dr. Cox put his personal financial interest in front of requiring nursing homes be financially responsible,” said Hugh M. Robert, Executive Director of the Oklahoma Center for Consumer and Patient Safety. Robert went on to say “the Oklahoma Senate had overwhelmingly supported the amended bill and Dr. Cox, who purportedly operates his nursing homes without insurance, today showed his personal financial interest is more important to him than protecting his constituents or the citizens of the State of Oklahoma.”

The amended bill would have required nursing home operators to prove they have sufficient assets to cover claims of resident abuse or neglect. If the nursing home operator fails to keep sufficient assets and does not carry liability insurance the officers, directors and shareholders of the nursing home operator would be personally liable to a nursing home resident or their family when someone is abused or neglected.

One reason Dr. Cox as well as the nursing home lobby has cited for not carrying insurance is that the Medicaid reimbursement levels not being high enough to provide the owners with large profits and pay for insurance. However, this does not take into account the private pay residents and if the issue is with reimbursement rates, then Dr. Cox, in his capacity as a representative should work on reimbursement rates, not blocking a resident or family of a resident from holding responsible a nursing home who abuses or neglects a loved one.

If a nursing home resident is neglected or abused they should have a remedy. Robert comments “we require people who drive cars to carry mandatory insurance, why should nursing homes be any different.” “Forcing nursing home operators to show they are financially sound in order to have a license to take care of our elderly citizens just makes common sense, especially with the growing elderly population” Robert says. Most nursing home operators are for profit and carrying liability insurance is a legitimate cost of doing business. A nursing home does not have to choose between providing good care and being financially responsible, they should be required to do both.

About the Oklahoma Center for Consumer and Patient Safety- Please call 800-994-6025 or visit www.okccps.org.

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Randy Ellis staff writer for NewsOk.com has a sad story about a neglected resident who did not get questions or compensation because the nursing home had no assets and no liability insurance.  Below are excerpts of the story:

The story refers to a family who received a telephone call that their mother had been injured at The Gardens nursing home in Sapulpa. Hospital X-rays revealed her mother had suffered spiral fractures to both legs.  Since that type of injury often is caused by abuse or neglect, the family sued the nursing home to get answers about what happened.  However, the nursing home had no medical liability insurance coverage. 

The number of nursing homes that have dropped medical liability insurance coverage has skyrocketed in recent years. There are now at least 56 uninsured homes with 6,621 beds, according to the Tulsa-based Oklahoma Center for Consumer & Patient Safety.
"Based on information provided to the Center, over 20 percent of the beds in Oklahoma are in nursing homes that refuse to carry insurance,” said Hugh M. Robert, executive director of the nonprofit group. "A state study last year speculated the number may be as high as 65 percent.”

Legislation introduced by Sen. Richard Lerblance, D-Hartshorne, would require nursing homes either to carry medical liability insurance or prove they have sufficient assets to pay substantial damages if they are found responsible for injuries caused by abuse or neglect.  It is difficult for consumers to discover that information on their own because nursing home owners often play a "corporate shell game."

One woman had maggots crawling out of her air cast because employees at her Oklahoma City nursing home had not cleaned beneath it and open pressure sores had developed. An Edmond nursing home patient was left on a bed pan so long her tail bone stuck to it, and a woman at a Frederick nursing home died after becoming so dehydrated that her tongue stuck to the roof of her mouth, attorneys said.

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