The Fresno Bee reported a class action lawsuit regarding short staffing at Valley Nursing Home.  The lawsuit claims the obvious–that a group of for-profit nursing homes have put elderly residents at risk and skirted state law by skimping on staff to make more money.  Nursing home residents say staffing problems have plagued homes operated by Skilled Healthcare Group Inc., the 10th-largest nursing home chain in the country.  More than 32,000 nursing home residents are represented by the class action.  They hope to improve care.

Industry and advocates for nursing-home reform are watching the case closely. It’s not the first class-action case nursing homes have faced for staffing problems, but the size of the case means it could have a far-ranging effect on how nursing homes are staffed.

Millions of dollars could be at stake. In addition to seeking punitive damages, the plaintiffs are suing for statutory damages for each day the nursing homes are found out of compliance with staffing laws. The plaintiffs contend the California homes were under-staffed thousands of days over the six-year period — 2003 to 2009 — covered by the lawsuit. Penalties can be up to $500 per resident for each day the law was violated.

Lawyers for the nursing-home residents say they hope not only to win restitution for residents, but also to spur reforms in the industry. "We want to change the corporate culture of the for-profit nursing operators to have them start paying more attention to the nursing of the residents and less attention to shareholders," said Michael Crowley, lead trial counsel for the plaintiffs.

Skilled Healthcare Group of Foothill Ranch was the nation’s 10th-largest nursing home chain in 2009, based on the number of nursing beds, according to the trade journal Provider Magazine.

 

 

 

 

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Modern Healthcare has an article about real estate investment trust Omega Healthcare exercising its option to acquire 63 long-term-care facilities from affiliates of CapitalSource, a Chevy Chase, Md.-based commercial lender, for about $295 million.

It is unclear which nursing homes were purchased.  Omega is involved in several different nursing home chains including Fundamental Long Term Care Holdings owned by Murray Forman and Leonard Grunstein.

Ken Connor wrote a great article about the inherent injustice of tort reform on the Center for a Just Society.  Below is the full aricle:

On April 5, 2010, the community of Montcoal, West Virginia was devastated when an explosion at the Upper Big Branch mine took the lives of 29 men. For the families impacted by this disaster, coping with the unexpected loss of loved ones is only the beginning of what is sure to be a long and arduous quest for justice. Not only does the tragedy of Upper Big Branch demonstrate the inadequacy of regulations alone to protect vulnerable workers and their families, it highlights the vital importance of our nation’s civil justice system as a means of compensating victims and punishing those whose reckless conduct harms others.

As news of the explosion at Upper Big Branch unfolded, it wasn’t long before details of the mine’s troubling history began to surface. According to the New York Times, "the mine had been cited for hundreds of violations over the last year, including many serious ones."

Why then, did the mine continue to operate? The early evidence suggests that the owner was gaming the system to protect its bottom line, putting profits ahead of the safety of its workers.

In order to avoid steep fines and delay the need for compliance, the Massey Energy Company fostered bureaucratic gridlock by contesting most of the Upper Big Branch mine’s safety violations. While regulatory officials at the Mine Safety and Health Administration (MSHA) waded through stacks of appeal documents, hamstrung by weaknesses in the 1977 Mine Safety Act, the mine continued to operate unimpeded. What’s more, the mining industry (as with many other regulated industries) has long had a revolving door between the regulators and the regulated. The ranks of the regulators are often filled with folks who come out of the mining industry. Likewise, the industry provides opportunities for advancement for regulators who decide to leave government service. This calls into question the zeal with which some regulators carry out their duties. Does a regulator really want to get tough on the company that might provide him with his next job?

Of course, regulatory regimes do nothing to compensate the victims or their families for the damages they suffer in such catastrophes. The fines that errant corporations pay for violating government regulations go to government, not the victims of those violations. But justice requires that there be a means to ensure that wrongdoers are made to compensate for the harm they inflict on those who suffer as a result of their wrongdoing, and this is where the much maligned civil justice system – better known as the tort system – comes in.

The term "tort" refers to a private or civil wrong. Derived from the medieval Latin word tortum ("wrong"), the root of the word goes back to the ancient Latin verb torquere, which means to twist (compare our modern use of the word "torque"). The tort system is designed to "straighten out" the injustices suffered by the innocent at the hands of wrongdoers by requiring compensation for the harms they have suffered.

But the reach of Big Business extends even to the judicial system, and there is a dangerous move afoot to immunize corporate malefactors from full accountability to their victims. Under the rubric of so-called tort reform, corporate brigands like Massey Energy use their clout in the political arena (derived from generous campaign contributions) to secure the passage of laws that artificially "cap" the amount of damages innocent victims can recover. Caps as low as $250,000 are routinely advocated for "non-economic" damages like pain, suffering, disability, and disfigurement, regardless of how much the victims have suffered. Tort reform means that bureaucrats and special interests far from the scene determine the amount of damages an injured party can recover, rather than a jury drawn from the community where the wrongdoing occurred.

Not content to limit the compensatory damages available to victims of corporate wrongdoing, business interests also seek to limit the recovery of punitive damages as well. Punitive damages are awardable in cases where a wrongdoer engages in intentional or reckless misconduct. Historically, such damages are levied as punishment, with the purpose of deterring similar misconduct by others. In taking into account the amounts to be awarded, juries are permitted to consider such things as the reprehensibility of the misconduct, the vulnerability of the victim, the profit resulting from the misconduct, the financial condition of the wrongdoer, and the extent to which the wrongdoer tried to conceal the wrongdoing. Juries may only punish – they are not permitted to bankrupt – the perpetrators of such misconduct.

But wrongdoers don’t like to be held accountable, so business interests – through lobby groups like the U.S. Chamber of Commerce – have launched a full scale assault on the civil justice system, seeking to emasculate the rights of innocent victims and their ability to hold wrongdoers fully accountable. In addition to advocating caps on damages, they try to shorten statutes of limitations, secure immunity from liability, and place other legal hurdles in the path of the victims.

Sadly, this campaign has had great success. And without robust legal mechanisms in place to send a message that it’s cheaper to do business the right way than it is to cut corners, businesses like Massey Energy will continue to do things the wrong way, and the innocent and unwitting will continue to suffer the consequences. If tort reform continues to be successful, it is inevitable that more and more communities across America will find themselves, much like the families of Montcoal, West Virginia, at the center of a senseless industrial tragedy.
 

The Hartford Courant had an article about the Haven Healthcare executive Raymond Termini being sentenced after admitting diverting millions of dollars from the financially troubled chain. Prosecutors are only seeking a prison term of 27 months.

Termini pleaded guilty to fraud charges stemming from the diversion of funds that were supposed to pay for the operation of the nursing home. Instead, millions were put into accounts controlled by Termini or his wife.   Haven Healthcare, with 24 homes — 15 in Connecticut — filed for bankruptcy in 2007 following a series of stories in The Courant that detailed the chain’s financial problems and citations for deficient patient care. Termini resigned as chief executive seven months later, and the homes have since been sold.

U.S. Attorney Nora Dannehy said that nursing home executives have a special duty to run their businesses cleanly, because money misappropriated from the homes means money not available for patient care.

Termini is asking a judge to impose only probation and community service, claiming his humiliation and the damage to his reputation are punishment enough.  What a joke.

He should get 10 years.  The sentencing guidelines are too lax.

WCCO reported that a Minnesota nursing home was cited for four deficiencies of federal nursing care standards.  A report says the department cited the Good Samaritan Society’s Bethany home in December 2008.  A Minnesota Health Department investigation found poor supervision at a Brainerd nursing home allowed workers to allegedly mistreat residents.

The report says in a two-month period in late 2008, workers allegedly told residents to relieve themselves in their briefs and talked in a derogatory manner to residents.  The investigation focused on one worker who eventually was fired, but that workers indicated as many as 20 others also committed similar acts.

Management has a duty to properly hire and train staff and supervise them.  How could the Administrator and DON not know what was going on?
 

The Chicago Tribune (once again) had a great article on the lack of supervision in Fox River Pavilion nursing home which caused the sexual assault of a disabled resident by another resident with a history of violent behavior and mental issues.  The victim’s family filed a lawsuit.

The suit alleges that Graves, 39, sexually assaulted and beat the woman in his room at the home. The suit says Graves has been arrested multiple times and suffers from bipolar disorder and other mental issues. The nursing home should have more closely monitored or restricted Graves, and it failed to provide additional security or therapies that may have treated his anti-social behavior.

The woman, who the lawsuit said suffers from dementia, went to a nurse’s station after she was assaulted and was "in a bruised, battered and bloodied condition," according to the suit.

In February, state and federal officials terminated funding to the home after investigating that case and others. State reports say a lack of staffing contributed to resident-on-resident attacks, and that staff failed to properly monitor and treat aggressive mentally ill felons housed there.

 See related article from the Beacon News about the family’s lawsuit.

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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Bristol Herald Courier had an article about the Virginia Medical Licensing Board’s conclusion that reports of sexually abused nursing-home patients were both ignored and discouraged by supervisors at the National Health Care-Bristol facility.  The accusations against two current NHC-Bristol staff members and a former nursing director detail a series of assaults already attributed in court documents to ex-nursing aide James Wright.

NHC-Bristol Administrator Charlotte Wilson is accused of failing to investigate reports of sexual assault on 12 patients from 2000 until 2008. She also is accused of neglecting to pass the reports on to the patients’ doctors, or to Adult Protective Services. Wilson also is accused of setting up a chain of command that led to a dead end for reports of abuse, while also circumventing state law.

“Until 2007, you enforced a policy that employees could report allegations of abuse only to their next superior, rather than to the administrator and any state or local official as required by law,” states the complaint against Wilson.

 

ChicoER.com had an article about the pattern of bad care at nursing homes operated by Evergreen Healthcare. Six lawsuits are pending against  three nursing homes run by Evergreen Healthcare in Butte County.  The six suits, filed in 2008 and 2009, allege wrongdoing and/or inadequate and negligent care of residents.

Karen Borm, a registered nurse who worked at Twin Oaks, claimed she was wrongfully fired after she tried to intervene for a dying resident whose pleas for pain medication were ignored. Borm charged Twin Oaks failed to report to the state, as required, that this patient had fallen.

In another case, John Schroer, who was 89 at the time, was allowed to fall while in the bathroom at Twin Oaks. His suit stated he got no treatment for 24 hours for an extremely painful ankle, which turned out to have multiple fractures.

Stewart Smith claims his wife received inadequate care there and that when he complained, the nursing home retaliated by trying to limit his ability to visit her.

One lawsuit claimed that a patient named Fay Ward became extremely ill after a doctor’s orders to clean and medicate her skin sores were ignored. She was sent to Biggs-Gridley Memorial Hospital, where she remained for about three weeks before she died on April 4, 2008.

Another suit stated that Alfonso Vigil, 92, was admitted to the facility and was at risk for falling and hurting himself.  The suit said staff left him alone in his room for hours. He was then found dead, having slipped down in his wheelchair and been strangled by the waist belt.

Robert Mills suffered various kinds of harm, including dehydration, malnutrition, infection and multiple falls with injuries.

The study found a correlation between the frequency of lawsuits and the frequency of citations issued by the state for inadequate care.

 

On March 22, 32 year-old Maximo Hong Fajardo Jr. allegedly smothered nursing home resident, 87-year-old Barbara McIver, in full view of other residents and staff using a pillow.  Fajardo worked as a certified nursing assistant since 1999; he had worked only 2 weeks at Convalescent Center Mission Street prior to the incident. 

Employees alerted police to the killing around 10 a.m., shortly after the suspect fled the home.   Bystanders then chased him down and held him for police.  He plead not guilty on March 24 and is being held on $10 million bail.

See article here.