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

PRWeb summarized a story from the NY Post about punitive damages against a nursing home in New York.   The New York Post reported that in December 2009, a Brooklyn nursing home was found guilty of negligence in the case of a patient who developed numerous and avoidable bedsores while under the home’s care. The jury awarded the patient’s family close to $4 million for pain and suffering, plus an additional $15 million as punishment for trying to cover up the poor patient care.

Elder abuse is prevalent in nursing homes around the country, and with serious consequences for patients. Older adults who are victims of elder abuse are more than twice as likely to die prematurely as are adults who are treated properly, according to a study published in the August 5, 2009 issue of the Journal of the American Medical Association.

Mistreatment can take many different forms, including physical, emotional, psychological or sexual abuse; neglect; withholding food and water; or denying visits from family and friends.  Family members and friends of nursing home residents must be vigilant in looking for signs of possible abuse or neglect.  These can include personality changes, depression, anxiety, unexplained or unusual bruises and injuries, rapid weight loss, poor grooming, and potentially unsafe conditions.
The National Center on Elder Abuse defines institutional elder abuse as “any of several forms of maltreatment of an older person by someone who has a special relationship with the elder (a spouse, a sibling, a child, a friend, or a caregiver)” that occur in residential facilities for older persons, including nursing homes. Its website, www.ncea.aoa.gov, explains that “perpetrators of institutional abuse usually are persons who have a legal or contractual obligation to provide elder victims with care and protection (e.g., paid caregivers, staff, professionals).

Looking exclusively at falls, the Centers for Disease Control and Prevention noted that an average nursing home with 100 beds reports 100 to 200 falls each year, representing up to 75 percent of residents. Many falls were caused by environmental hazards like wet floors, poor lighting, incorrect bed height and improper wheelchair use.

A November 2009 report from the University of California, San Francisco, stated that 26 percent of the nation’s nursing facilities were cited in 2008 for poor quality of care, 44 percent of nursing homes failed to ensure a safe environment for residents, 36 percent had food sanitation regulations violations and 33 percent of facilities received deficiencies for failure to meet quality standards.

 

 

 

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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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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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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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The children of 94-year-old Alice Limbrick claim their mother's legs had to be amputated  because of negligent care during her stay at the Green Acres Parkdale nursing home.

The trial of Roy Limbrick vs. Mariner Health Care Inc. (Green Acres) began Jan. 23.  The defense will attempt to convince the jury that the amputating Alice Limbrick's legs had to be taken because of Alice's medical conditions and old age.

Alice Limbrick was admitted to Green Acres for long-term care with multiple health problems.  During her residency, Alice fell fracturing her left hip.

The plaintiffs say Limbrick was admitted to the hospital as a result of the preventable fall where she developed pressure ulcers (bed sores) and eight blisters on both heels and left leg. She was in stable condition and was discharged back to Green Acres.

A week later, she was readmitted to the hospital with gangrene on both heels.   The decubitus ulcers to her heels and left leg continued to deteriorate.  Limbrick's legs were amputated below her knees. 

In the suit, the plaintiffs allege that Green Acres' nurses were negligent in the following ways:

Failing to properly monitor, treat and care for the decubitus ulcers, which progressed and worsened while Alice was a resident;

Failing to properly assess Alice's risk level in the progression of pressure ulcers;

Failing to prevent the progression of Alice's decubitus ulcers;

And by failing to prevent infection in Alice's decubitus ulcers.

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Spectrum News has an article discussing a study that shows elderly citizens to fear nursing homes and loss of independence more than death. 

89% of America’s seniors want to age-in-place and are willing to use adaptive technology allowing them to maintain their independence, according to a study commissioned by Clarity and the EAR Foundation. The same study found that their boomer children share the same concerns and are willing to support their parent’s efforts. 

In a recent survey, seniors rated loss of independence (26 percent) and moving out of their home into a nursing home (13 percent) as their greatest fears. Death was listed as a fear by only 3 percent of the respondents.

Seniors cited three main threats to their independence. Health problems were the main consideration followed closely by memory problems and the inability to drive.   Most seniors stated an openness to new technologies that help them avoid nursing homes.

The children of seniors, today’s boomers, were also interviewed and their answers echoed the parental desires and concerns over aging in place and living independently.   The vast majority (94 percent) feel that it’s important their senior parents are able to age-in-place. More than three-fourths (79 percent) are concerned about their parents’ ability to do so, and more than half (57 percent) are very concerned.

Despite the boomers’ parents’ belief that they receive no support from their children, 63 percent of the boomers surveyed stated that they are providing some kind of assistance to allow their parents to age-in-place. Much of the assistance reportedly provided by boomers was with household maintenance, transportation, medical issues, help with financial decisions and financial support.

Surprisingly, senior parents appeared to be more open to aging-in-place technology than their boomer children. Only 14 percent of the tech-savvy boomers have actually looked into technological solutions to help them ensure the health and safety of their parents.

 

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After a 2 week trial in Hendersonville, North Carolina, the jury awarded $800,000.00 to the Plaintiff. Plaintiff was represented by Poliakoff & Associates of Spartanburg, South Carolina. The jury award was $200,000.00 for personal injury suffered by the decedent while a resident at Brian Center - Hendersonville, and $600,000.00 in punitive damages. The Brian Center - Hendersonville is a nursing home owned by SSC Hendersonville Operating Company, LLC which is a subsidiary of  SavaSeniorCare. The Defendant denied all liability, and vigorously defended the entire suit.

 

The Plaintiff argued that the decedent, Neal Hawkins, Jr., was identified by the Brian Center as being high risk for falls, but that the facility did little to address this problem in the care plan for the resident, and failed to revise the care plan on occasions when changes in his condition compelled such. Further, on February 11, 2005, Mr. Hawkins fell 3 times in one day at the facility, apparently fracturing his hip on the 3^rd fall. Plaintiff further argued that the nursing facility failed to properly assess the patient, failed to follow procedures, failed to follow doctor’s orders, and allowed Mr. Hawkins to remain in the facility in pain for 7 days following the fracture, until he was finally transferred to the hospital.

 

The Defendant denied that it was liable or responsible for the falls or any resulting injury, and argued that it followed appropriate procedures. On November 16, 2007, the jury awarded a total of $800,000.00 in actual and punitive damages.

 

Plaintiff’s experts were Dr. Jonathan Klein of Falls Church, Virginia; Janet White of Emporia, Virginia; and Katherine Johnson, of Orlando, Florida. The case was tried for the Plaintiff by lead counsel Gary W. Poliakoff, Raymond P. Mullman, Jr., and Lara Pettiss Harrill. Also participating were attorney Matt Yelverton and attorney Greg Newman, both of Hendersonville, North Carolina.

 

As of the time of writing of this entry, the Defendant has indicated a possibility of appeal.

 

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Chad Trammel and his team of nursing home lawyers did a great job in a difficult trial.  The multi chain (and infamous) Beverly Enterprises has been found negligent in the death of  resident and ordered to pay $1.4 million in compensatory damages.

After deliberating on Monday, the Ouachita County jury agreed on $875,000 in punitive damages in the case. The company was sued for the April 2005 death of Herman Johnson.

Johnson went into the nursing home March 18, 2005. Two weeks later, he was found unresponsive in his wheelchair in the dining room. Two nurses tried to revive Johnson before an ambulance took him to Ouachita County Medical Center, where he was pronounced dead. An examination of the body found bed sores and evidence of malnutrition and dehydration--clear signs of serious neglect.

The suit claimed the nursing home was insufficiently staffed to provide adequate care for Johnson. Lawyers for Beverly said Johnson's condition was due to long-term alcohol abuse and other chronic health problems, including anemia, diabetes, high blood pressure and kidney failure. They say Johnson also had a history of refusing to take vitamins and medicine prescribed for him.

The trial began earlier this month, and the jury announced its decision Friday along with the award of compensatory damages. The jury found the defendants also had acted recklessly and had deprived Johnson of his rights as a resident of the home.

Beverly Healthcare is one of the nation’s largest nursing home chains. Over the course of the eight-day trial, the 12-person jury heard testimony from a variety of Beverly representatives, medical experts, and other witnesses. Among the documents displayed during the trial were internal Beverly e-mails referring to the company’s own nursing assistants as “trash” and “misfits” who posed a “hazard” to the residents. According to Beverly’s own officials, the company was not able to retain quality nursing assistants because it refused to raise its wages by $1.00 per hour.

The plaintiffs also introduced evidence showing that the company recently paid its executives $138 million in bonuses. Finally, the jury heard from Beverly Director of Operations David Mills, who took the stand and compared running a nursing home to owning an automobile dealership.

“This jury sent a powerful message to Beverly and all the other nursing-home mega-chains that neglect their residents in order to boost profits,” said Chad Trammell, a partner with Nix, Patterson & Roach and the attorney who represented the plaintiffs. “The people they are abusing are our mothers, our fathers, and our grandparents. These companies have a duty to care for their residents, and that duty is more important than maximizing shareholder return and paying out huge executive bonuses.” 

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