Articles Posted in Nursing Home Abuse

If you are handling nursing home cases, you tend to focus exclusively on the negligence and abuse claims that are going to lead to a substantial verdict or settlement.

What we tend to forget is the little injustices along the way that might not generate the interest of a nursing home attorney because the value of the case, if any, is relatively insignificant.  But that does not make the pain any less significant and it does not make the patient’s relatives any less furious.

A recent lawsuit filed in New York reminds us of this fact.  A man has brought a suit after he found at his mother’s nursing home, a photograph of a man wearing underwear dancing next to her.

As a son, I get it.  This is an 84 year-old woman.   She has Alzheimer’s disease and advanced dementia.   Not that there is necessarily anything wrong with this arguably harmless fun.  But is this woman in a position to make a decision about whether this is an appropriate activity for her?   How can she consent to being a part of something like this when she cannot consent to anything?

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Unfortunately, most courts around the country have enforced nursing home agreements executed by residents agreeing to forgo civil claims in favor of arbitration for negligence claims.

The game changes in wrongful death cases.  Usually this is for a very simple reason: the parties have changed.  Courts in Maryland and other jurisdictions have largely declined to enforce arbitration agreements between nursing homes and deceased residents because any wrongful death action is not an “asset” of the estate but a claim brought under the plaintiffs’ own right for the loss of their spouse or parent.

There are two new Pennsylvania nursing home cases that favor plaintiffs in these disputes.

Pisano v. Extendicare

In Pisano v. Extendicare Homes, a Pennsylvania intermediate court affirmed the trial court’s motion for summary judgment in a wrongful death and survival action filed against a nursing home.  The nursing home attempted to compel arbitration over both causes of action based on the existence of an agreement to arbitrate all claims against the nursing home, expressly including survival and wrongful death actions.  This was an issue of first impression in Pennsylvania.

The nursing home’s best argument in these cases, which they made in Pisano, is that  a wrongful death claim is a derivative of and defined by the decedent’s rights.   While it is their best argument, it is weak.  The Pennsylvania court agreed using a lot of complicated legal analysis that can best be described as follows:  the parties are different so it is not derivative.

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When you get a verdict in a nursing home case, you generally are home free unless you lose on appeal. In this case, the appellate court affirmed the verdict to the chagrin of the plaintiffs’ lawyers.

Wait!  What?  Here is what happened. A woman suffers a stroke that causes the complete paralysis of all her voluntary muscles except her eyes. Just awful. The condition, known as “Locked-in Syndrome”, requires nursing home care. At the home, she suffers from a sacral decubitus ulcer, also known as a bed or pressure sore, at stage three. While in the nursing home, the ulcer progresses to stage four. Bed sores do not get any worse than stage 4. She transfers to another facility and dies. A nursing home lawsuit ensues.

During the trial, plaintiff’s nursing expert testified that defendant’s nursing home breached the standard of care. Another expert tells the jury of the standard of care with regard to defendant’s dietary practices, most notably the treatment of her diabetes. Plaintiff’s claim is fundamentally that the nursing home failed to provide adequate nursing care and nutrition that would have prevented decedent’s bed sore from healing. This just, as I’m sure was the case, made her worse and made her pain worse. But, while they allude to it, the experts never link up the pain and suffering to any breach of the standard of care.

This article in Law.com goes against my “lawyers are protecting nursing home residents” theory, which I now have to bump back to hypothesis:

An attorney faces a maximum of 20 years in prison after being convicted of failing to provide nursing home services for which he collected $32.9 million in Medicare and Medicaid payments. A federal court concluded that the evidence revealed such poor conditions, including “food shortages bordering on starvation … that, in essence, any services that defendant actually provided were of no value to the residents.” Prosecutors said George D. Houser is the first defendant ever convicted in a federal court trial for submitting payment claims for “worthless services.”

A jury in Massachusetts found that a nursing home was negligent in causing an eye injury, awarding $400,000 for the Plaintiff’s pain and suffering during the 45 days between the injury and his death. They did not find that the injury caused his death.

The Plaintiff’s counsel said he thought the verdict was high given that the victim was so old. This attorney did a great job, I’m sure, securing this verdict and should be commended for taking the case. But I don’t think it was a “high” verdict. Who would trade $400,000, that they don’t get, to spend their final 45 days in misery?

This nursing home verdict never would have been possible if a trial judge had not vacated an arbitration agreement the patient executed when he was 91 years old and suffering delusions. The nursing home arbitration agreement had sought to prevent his estate from filing a civil suit if killed or injured by the nursing home’s negligence.

There is an interesting article in the University of Illinois Elder Law Journal entitled “Big Brother” and Grandma: An Argument for Video Surveillance in Nursing Homes.

The premise of the article is that video surveillance systems in nursing homes provides additional safety to the nursing home patient and peace-of-mind for family members who have an elderly loved one in a nursing home. The big issue is whether nursing homes are able to refuse care if the family insists on a camera in the patient’s room.

Cameras are never the total solution to serious problems in nursing homes that lead to lawsuits. Can they help? Sure. State legislatures should make sure the patients have the right to install cameras in their own rooms. It is fair, it is within their rights as tenants, and it will make patients safer. Nursing homes object largely because they don’t like the idea of the evidence that gets accumulated which shows neglect and poor care. The answer to these concerns? Provide better care.

The Irish Times reports on a study from the National Suicide Research Foundation that found that the experience of being abused in an institution had led to huge anxiety among survivors regarding the possibility of receiving nursing home care in later life.

There is no real legal/nursing home abuse angle to this story. It does underscore, however, how fragile some patients are both physically and mentally went they enter a nursing home which highlights the obligation of nursing homes to provide not only proper but loving care to nursing home patients.

This is hardly “knock me over with a feather” news for nursing home lawyers. Centers for Medicare and Medicaid Services – a federal agency – gave slmost a quarter of our nursing homes the lowest possible rating, under a new ranking system released yesterday. The new five-star system is determined by factors such as staffing and the results of state inspections. The purpose is to simplify for consumers the arduous process of choosing an appropriate nursing homes.

The study also tries to rank nursing homes by state: States with the highest percentage of nursing homes with a one-star ranking were: Louisiana, Georgia, Virginia, and Tennessee. States with the highest percentage of homes with five stars were: Delaware, Alaska, New Hampshire, and Hawaii.

The Medicare website has a pretty neat way of evaluating the different nursing homes. Click here to see how you or your loved one’s nursing home fares.