Oregon Strikes Unconstitutional Damage Cap

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Oregon’s Supreme Court ruled that the $500,000 cap on such damages under state law violated the constitutional guarantee of access to a remedy in the courts.

“In enacting the damages cap (in 1987), the Legislature left defendants’ common-law duty of care intact, but deprived injured plaintiffs of the right to recover damages assessed for breach of that duty,” Chief Justice Martha Walters concluded for the court majority of five.

A man who lost his left leg after a garbage truck struck him in March 2015 will now get a chance to argue for an award of noneconomic damages exceeding $500,000.  The business had already conceded liability for the injury, so the sole issue was the amount of damages.

Scott Raymond Busch, now 62, was awarded $10.5 million in noneconomic damages — known as “pain-and-suffering damages” — plus $3 million in economic damages by a jury in May 2016.  Busch’s left leg ended up under the truck and had to be amputated above the knee. Circuit Judge Michael Greenlick then reduced the award for noneconomic damages to the $500,000 allowed under a 1987 law. (That amount, if linked to inflation, would be slightly less than $1.2 million today.)

Occupancy Rates Decline

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The nursing home industry are seeing steep drops in occupancy since the start of the pandemic.  Experts do not expect those numbers to rebound any time soon. Weekly occupancy data trends from the federal government’s National Healthcare Safety Network’s database revealed median occupancy rates for skilled nursing providers have fallen as low as 75% in each of the three most recently reported weeks, according to CLA.

“For facilities that lost existing occupancy due to a COVID-19 outbreak, when coupled with a reduced incoming stream of residents, skilled nursing leaders expect it may be 18 months before their occupancy can recover to pre-COVID levels,” Cory Rutledge, managing principal at CliftonLarsonAllen, told McKnight’s Long-Term Care News.

“In addition, some skilled nursing facilities have experienced a significant occupancy decline due to COVID-19 infections in their building, which augments the issue,” he added. The National Investment Center for Senior Housing & Care said the pandemic and falling occupancy numbers have put the industry in a “challenging state,” but added the struggles won’t continue forever and nursing home care will eventually be needed.

Dumping Continues

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The L.A. Times reported that nursing homes continue to violate federal law by “dumping” residents. Los Angeles prosecutors accuse a Lakeview Terrace skilled nursing facility of illegally “dumping” old and disabled residents onto the street and into homes that are not equipped to care for them in order to increase profits amid the coronavirus epidemic.

The “sustained” and “intentional” misconduct by the facility comes as nursing homes have an incentive to dump long-term residents to make room for COVID-19 patients, for whom they are paid much more.

Under Medicare’s new guidelines nursing homes are paid substantially more for new patients, especially in the first few weeks of their stay. So COVID-19 patients can bring in more than $800 per day, according to nursing home administrators and medical directors interviewed by the Times. By contrast, facilities collect as little as $200 per day for long-term patients with dementia, the newspaper said.

“This creates an incentive for nursing homes to seek out residents with higher rates of reimbursement and ‘churn’ residents by any means possible,” prosecutor Feuer wrote.

In one instance an 88-year old man with dementia was transferred from the nursing home and was later found wandering the streets profoundly confused a day later, according to the court filing. Another resident with HIV who was dumped on the street instead of being provided the hospice care he needed wound up cowering in a friend’s backyard, hoping that would keep him safe from the pandemic, the complaint said.

Lakeview Terrace, which has the lowest possible quality rating from Medicare, has a troubled history. Last year the city attorney filed a complaint that accused the facility of patient dumping, failure to provide residents with necessary care, failure to protect their safety and failure to maintain accurate and complete medical records.

The home’s administrators agreed to pay $600,000 as part of that settlement, $150,000 of which would cover the cost of an independent monitor. The home appeared to cooperate at first, Feuer said in an interview with the Times, but after COVID-19 arrived all outside visitors were barred from the building, including the monitor. That’s when the situation deteriorated rapidly, Feuer said.

The Cover Up Continues

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Gayla McDaniel was concerned when she got a call last week from the SavaSeniorCare nursing home where her uncle is recovering from a stroke.  The call from the caregivers at the SavaSeniorCare facility -Brian Center in Gastonia -was to let her know that her uncle was exposed by a staff member who tested positive for COVID-19. The next day, he was tested for the virus with a positive result.

Records released by the Gaston County Health Department show Cartner is one of at least 15 residents that have tested positive for the virus, along with two staff members. The paperwork shows the nursing home first reported a case on July 3 and the latest onset of symptoms was on July 7.

However the Brian Center in Gastonia is NOT included in the list of nursing home with outbreaks released by the N.C. Department of Health and Human Services. DHHS agreed to start publishing a list of outbreaks in April, after being threatened with a lawsuit to get access to the data. The agency publishes an “updated” list of facilities with outbreaks every Tuesday and Friday at 4:00 p.m. It has never been accurate or complete.

Gayla McDaniel, whose uncle is battling COVID-19 at a nursing home, said she wishes more would be done to alert the public.

“I think, when you’re exposed, family members should know immediately,” she said of nursing home residents exposed to COVID-19. “You know, the community should know. Everybody should know that there was an exposure.”

Nursing Homes in Texas

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The COVID-19 pandemic has caused tens of thousands of deaths and more than three million infections, with predictions of many more to come. Nursing home residents have been among the most affected by the pandemic. In some states, half or more of all COVID deaths have occurred among nursing home residents. The situation is compounded by short-staffing; a lack of preparation, including insufficient personal protective equipment (PPE) for caregivers and testing to identify those infected in a timely fashion; and inadequate infection control procedures like hand-washing and cleaning.

COVID-19 cases are spreading rapidly throughout Texas nursing homes, recent state figures show. Overall, more than 1,500 residents have died from coronavirus in the state, while more than 11,100 cases have been reported.  The number of nursing home residents in the state who have tested positive for the coronavirus has increased by more than 60% in the last month.

“We had an opportunity to avoid what we’re experiencing right now,” Patty Ducayet, Texas’ long-term care ombudsman, told NBC News.

“We got this chance to see what other states did, what awful things they were experiencing, so we might be ahead of the crisis. Now I’m bracing for more deaths to come and more cases,” she added.

Last week, Texas Gov. Greg Abbott (R) confirmed that the state would not be easing restrictions on non-essential visitors at long-term care facilities. A spokesperson added that the decision was the “most prudent” for the safety of residents.

Who Will Work?

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We are getting dozens of phone calls from resident’s families asking what they should do about their loved ones in nursing homes. Several claim that their loved ones are not getting the care they need. Same thing is happenening all over the country.  I read an article from a San Antonio with similar complaints.

“I think we’ve dropped the ball in all nursing homes,” said Stefanie Taylor, who made the tough decision to move her 76-year old mother, Charlotte Wood into a nursing home recently.   “I like I’ve literally thrown her to the lions’ den,” Taylor said.

Taylor says her mother tested positive for COVID-19 and was moved to a designated wing at the Guadalupe Valley Nursing Center. When she called one morning for an update, she spoke with a staff member.

“There was not a nurse assigned to the COVID unit for the day shift,” the staff member told her.  A nurse wasn’t present in the COVID wing from 10 Friday night until 10 the next morning.  The center is clearly understaffed.

“Her words were they were having trouble finding staff that wanted to work with a COVID positive patient,” Taylor said. “I felt like my mother and those other patients were in imminent danger at that point.”

Trump: “It is What is it Is”

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South Carolina passed the 70,000 confirmed cases mark today with over 1200 confirmed deaths.  Total coronavirus deaths in the U.S. will surpass 150,000 by this weekend. But the Trump administration is against a proposal from Senate Republicans to spend over $50 billion on programs at the Centers for Disease Control and Prevention, the National Institutes of Health, the Pentagon and the State Department aimed at virus testing, distributing a potential vaccine and otherwise confronting the pandemic.

President Trump said that the rising number of U.S. deaths from the coronavirus “is what it is,” defended his management of the pandemic with dubious and obviously false claims. In an interview with Fox News, Trump incorrectly claimed that the United States had the lowest death rate in the world; that new cases were surging here because of the number of tests conducted; and that his virus response had saved “millions of lives.” He is delusional.

Most developed and high-income countries have a relatively small number of new cases and deaths each day, while the U.S. is climbing up the charts:

A higher percentage of tests are coming back positive than in other countries, and the death toll continues to mount, which are both signs that the main issue in the U.S. is a failure to control the virus.  Wear a mask! Stay safe.

“But they couldn’t spare me five minutes?”

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Thomas E. Comer’s final hours are a mystery to his family. You see, he died and was buried before the family knew he died of COVID-19. Comer lived at the Bayshore Health Care Center until his sudden death on April 13. The nursing home never contacted the family after the Irish expatriate succumbed to the coronavirus.  His son, David Comer, first learned of his father’s death after his daughter called the nursing facility to find out how he was doing.

“We had not heard anything. We knew they were overwhelmed, but I had this false sense nothing would ever happen to him,” Brianna Comer recalled. “The woman who answered the phone said she could not find him.” Then she was told he had expired.  “I went, ‘what? When did he die?’”

“We were told by the funeral home that he was already buried, against his wishes of being cremated, and they also attempted to contact my father, but they were only given an outdated phone number by the nursing home,” Comer remarked.

“Somebody could have told me something,” said his son, David. “He was my dad.”

“I understand what’s going on,” he said of the crisis in nursing homes. “But they couldn’t spare me five minutes?”

Comer, a retired Passaic County Sheriff’s Officer, said it would not have been hard to find him.

“They could have called the Holmdel police and given my name and they would have found me in minutes,” he said.

Born on September 2, 1931 in County Mayo on Ireland’s west coast in the town of Westport, Thomas Comer was a proud Irishman who never lost his brogue, said his granddaughter. He was a veteran of the Royal Air Force. He followed his parents and siblings to the United States, arriving here in 1958. She said he loved math and loved chess and for some reason, dogs always seemed to love him.

“He never got sick. He always said he had Irish immunity,” Brianna Comer remembered. “When we got sick, he said we weren’t Irish enough.”

The family is now trying to obtain his medical records in order to find answers regarding what happened to him and locate his belongings.

“I would have just appreciated his few effects,” said David Comer. “Some pictures. The wristwatch my son gave him. It’s just a $10 watch, but it was his.”