A New York Court struck the Answer of a nursing home for failure to respond to discovery including providing a complete copy of the resident’s nursing home chart. See Order in Schiller v. Sunharbor.

“In 2011, Georgette Schiller, as executrix of the estate of Bernice A. Schiller, deceased, and individually, commenced this action against, among others, Sunharbor Acquisition I, LLC, doing business as Sunharbor Manor, OG Operator, LLC, as successor to Sunharbor Manor, and Sunharbor Manor, LLC, doing business as Sunharbor Manor (hereinafter collectively the defendants). The plaintiff alleged that the decedent received care and treatment at the defendants’ nursing home, and that the defendants’ negligence caused an infection in the decedent’s left leg, which ultimately required amputation of her leg above the knee and resulted in her death. Almost four years after she commenced the action, the plaintiff moved, inter alia, pursuant to CPLR 3126 to strike the defendants’ answer on the ground that the defendants were willful and contumacious in their failure to respond to the plaintiff’s repeated demands for the decedent’s entire medical record and the Supreme Court’s orders related to the same. The court granted that branch of the plaintiff’s motion which was to strike the defendants’ answer, and the defendants appeal.”

“Here, the defendants’ repeated failures, over a period of years, to respond to the plaintiff’s discovery demands, even after being directed to do so by multiple court orders, without adequate excuses, constitutes willful and contumacious conduct.”

By law, every nursing homes using computerized medical records must have a system that can generate a log or audit trail showing not only every electronic entry, but every access of the electronic record.  The audit trail prevents the alteration of the records without leaving a telltale trail behind.

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 required the establishment of national standards for
electronic health care transactions. Health care providers were to implement security measures to ensure that electronically
transmitted and electronically protected health information “is not improperly modified without detection until disposed of.”
HIPAA also mandated that health care facilities retain the required documentation (including audit trail data) “for six years from the date of its creation.”

More recently, the Health Information Technology for Economic and Clinical Health Act (HITECH Act) was designed to “build
trust in health information exchange. HITECH, in addition to protecting medical information and personal data, also provides for an increased transparency to patients, who now are supposed to be granted access to their own electronic records within 30 days of the request.

Additionally, patients should be permitted access through a portal, so they can see the records in the same format that the healthcare providers see when they are making or accessing the patients’ records.

Why is this important?  Here is an example why.

Diana L. Stephens, a nurse at Golden Hill Nursing Home, is facing charges for allegedly stealing oxycodone and codeine while employed.  She had worked at the home from September 2015 through January, according to an affidavit.

Stephens is accused of diverting the painkillers by signing out the drugs on the controlled substance log, but the amount showed discrepancies on the patients’ electronic medication administration record, according to the affidavit that the agent filed in court.  The discrepancies showed that the patients were getting a lot fewer of the dosages units than Stephens had signed out.

NPR and Propublica both had articles about Dr. Lars Aanning who has admitted to lying underoath for a colleague.  This happens all the time.  Doctors don’t squeal on doctors.  It is similar to the thin blue line for police officers.  Should Dr. Aanning be commended for telling the truth now?

The South Dakota surgeon had been called to vouch for the expertise of his partner whose patient had suffered a stroke and permanent disability after an operation.  Dr. Aanning faced an ethical and legal dilemma.  Aanning had, in his own mind, questioned his colleague’s skill. His partner’s patients had suffered injuries related to his procedures.

The attorney asked the key question: Did Aanning know of any time his partner’s work had been substandard?

“No, never,” Aanning said.

Now, Aanning, in a stunning admission for a medical professional, has a blunter answer: “I lied.”

His partner won the trial

Aanning is haunted by his decision.

Now, 77 and retired, he decided to write about his choice and why he made it in a recent column for his local newspaper, The Yankton County Observer. He also posted the article in the ProPublica Patient Safety Facebook group.

From that very moment I knew I had lied — lied under oath — and violated all my pledges of professionalism that came with the Doctor of Medicine degree and membership in the [American Medical Association],” Aanning wrote.

ProPublica has found that patients frequently aren’t told the truth when they are harmed. Studies also show that many physicians do not have a favorable view of informing patients about mistakes and that health care workers are afraid to speak up if things don’t seem right. Many doctors and nurses have told ProPublica that they fear retaliation if they speak out about patient safety problems.

Why did you tell the lie?

I did it as a matter of course. And I did it because there was a cultural attitude I was immersed in: You viewed all attorneys as a threat, and anything that you did was OK to thwart their efforts to sue your colleagues. I just accepted that as normal. It wasn’t like, “I’m going to lie.” It was, “I’m going to support my colleague.”

Did you feel pressure from your peers to never criticize a colleague?

Pressure is the prevailing attitude of the medical profession. The professional societies like the AMA and the American College of Surgeons say you should be a patient advocate at all times. But that goes out the window because here you are, banding together with your peers. Because if you don’t, you’ll be like a man without a country.

Why are you telling the truth now?

I’m retired now. The big benefit is they can’t hurt me, but I can’t go to the clinic for any help. All my doctors are out of town. I came to America from Norway in ’47 and grew up in New York. I’ve always been a rabble-rouser. This testifying falsely at this trial was not like me, so it stands out. It’s not how I do stuff.

I also told the truth about my lie because I have been helping some of these plaintiffs’ lawyers with their cases. It seems that the courtroom is not the arena for adjudication of medical right or wrong. I shared my story to give an explicit example of why you can’t always rely on physician testimony in court. I think that’s the big reason. There’s got to be a different way to help people who have been medically harmed. Looking to the legal system is like mixing oil and water.

Do you feel like it’s your fault the patient lost the case?

I haven’t touched on that question. It would make it painful for me. I would be moved to tears if that whole case revolved around just my testimony. I was on the stand so briefly. But cumulatively between what I said and the other testimony — it was never a level playing field for the plaintiff. People don’t recognize it. How the judges don’t recognize it and the system doesn’t recognize it is beyond me. It’s something I’m coming to grips with.

Have you thought about talking to the patient’s family?

The attorney said something about meeting the patient’s widow in his office, or something like that. I worry about whether my testimony weighed on the final verdict or not. It’s something that you just have to face up to. It’s too late to deflect it.

Do you feel any better or worse now that you’ve gone public with your moral failure?

I’m not altruistic. I’m not a crusader. I got into writing this column accidentally, so I just kind of find myself in this position. I get a great satisfaction out of defining what I see and writing about it. I hope nobody’s going to come back at me and accuse me of bad conduct. Although that’s what it was. I felt bad about it.

North Carolina Lawyers Weekly had an article on a recent Sanctions Order issued by a South Carolina trial judge against a North Carolina lawyer and his client for engaging in abusive discovery tactics during a wrongful death case.  Discovery abuse including obstruction and delay are rampant in nursing home litigation.  The Court found order that a senior living and healthcare facility operator, Five Star Quality Care Trust Inc., and its Charlotte-based attorney, Gerald Stein II of Hedrick Gardner, turned the discovery process into a game of Go Fish.  She wrote that “defense counsel makes opposing counsel ‘go fish’ until they happen to stumble upon crucial witnesses and critical documents.” She specifically found that Stein and Five Star failed to produce appropriate witnesses, ran afoul of the rules of alternative dispute resolution and withheld a key document.

This court recognizes it bears responsibility for protecting our civil justice system from abuse,” she added, “yet it finds no pleasure in admonishing fellow attorneys.”“Issuing an order of sanctions is a somber task for circuit judges,” Richland County Circuit Judge Tanya Gee wrote in a Jan. 27 order denying reconsideration of her sanctions award.

Gee ordered Stein and Five Star to pay $34,955 to the plaintiff’s attorneys. They represent Patricia Greenburg in a wrongful death suit against Five Star, which operates the The Haven in the Summit senior facility in Columbia, where Greenburg’s mother, Constance Chandler, fell several times causing her death in 2010.

It strains credulity to believe that the Five Star defendants were surprised to learn that the plaintiff sought information pertaining to the timeframe identified in the complaint as the time during which Ms. Chandler had numerous falls and died,” she wrote in her order.

She also scolded Five Star and Stein for failing to hand over during discovery a mock survey that included information that was responsive to at least six of the production requests from Rikard’s firm.  The survey came to light during a deposition. She testified that the survey was prepared the same month that Chandler died and described the document as a “good audit tool of how the community is doing.” The survey included details about the facility’s policies and procedures, staff training, incident reports and fall prevention programs.

Stein argued at the sanctions hearing that he first learned about the survey at the deposition. But before the hearing, he had argued in a memo opposing the motion for sanctions that the survey was not responsive to the discovery requests.

While honest mistakes happen during document production,” Gee wrote, “defense counsel’s written assertion that he had no obligation to produce the mock survey suggests counsel purposely withheld the document, not – as defense counsel later argued – that the document had never been revealed until the deposition.”

It’s rare in South Carolina to have this kind of sanctions order from a state court. But it is necessary and much needed,” he said. “I hope this is an order that will signal what will happen in the future when people play games with the discovery rules.”


Quality Assurance and Performance Improvement Program reports are not privileged or protected from discovery according to a West Virginia court.  The court said HCR ManorCare LLC must provide nurse consultant reports, also called Center Visit Summaries, as part of a wrongful death lawsuit brought by a resident’s family member against Heartland of Charleston. ManorCare claimed the reports were meant solely for the company’s Quality Assurance and Performance Improvement Program, and were excluded from discovery.  Plaintiffs’ attorneys wanted the consultant reports to argue against a defense claim that it didn’t operate or manage any nursing homes.


Westfair Online reported a nursing home will pay $2.2 million to the state and federal governments to settle claims of Medicaid fraud.  Ralex Services Inc., which operates the Glen Island Center for Nursing and Rehabilitation on Pelham Road in New Rochelle, and its owner, Leah Friedman, will return the $2.2 million garnered from allegedly submitting more than 62,000 false claims to the joint state and federal program between 2002 and 2006.

“Safeguarding public health care dollars is of critical concern, and my office will investigate — and prosecute — all allegations of impropriety by health care providers who obtain Medicaid funds to which they have no right,” state Attorney General Eric T. Schneiderman said in a press release announcing the settlement. “We must care for our most vulnerable New Yorkers and at the same time protect our taxpayer dollars. Today we are saying: There is one set of rules for all nursing home providers — and my office is here to make sure those rules are followed.”

According to allegations made by the state and federal governments, the nursing home’s claims used Medicaid reimbursement rates based, in part, on up-coded Patient Review Instruments, which falsely represented the degree of care required by many Glen Island residents during the mandatory quarterly assessment periods covered by these submissions. The defendants exaggerated residents’ diagnoses, conditions and required treatments in the reports, according to the press release, and routinely stated that residents were receiving treatments, including for oxygen and suctioning, when such treatments were neither required nor given.

According to the Attorney General’s press release, the defendants attempted to cover up their fraudulent submissions and false claims by making false entries and forgeries into Glen Island residents’ medical records. These falsified records were later turned over to the attorney general’s Medicaid Fraud Control Unit. Two former Glen Island nurses, who participated in “tampering parties” at which records were falsified, were also convicted by the attorney general’s office.


Steven Littlehale is a gerontological clinical nurse specialist, and EVP and chief clinical officer at PointRight Inc.  He wrote the below article for McKnight’s.

You’ve heard the adage: “If it wasn’t documented it wasn’t done”, but does anyone actually think that’s realistic or meaningful?  Yet sadly, millions of dollars have been paid by nursing homes who unsuccessfully defended themselves against incomplete or absent documentation. There are not as many legal guidelines regarding medical records maintenance as you might think; however, there are essential legal aspects of charting to keep in mind. Poor legibility, lack of dating, timing, and signing entries, improper labeling, spelling/grammar errors, inconsistent data entries, use of unauthorized abbreviations, mistaken/erroneous entries, and delays and gaps in charting, are the most common findings under scrutiny during a records review process.

During the initial phases of discovery, the medical record is regarded as a repository of information. The contents and quality of the record speak volumes about the standard of care and any potential deviation. Therefore maintaining, organizing and storing medical records should be regarded with a high level of importance.

Most nursing homes have policies and procedures for responding to requests for medical records by an outside party such as a plaintiff attorney or family member. If your facility does not, immediately consult with counsel and establish one. This is not a corner to cut.

Does your policy instruct that MDS assessments should be included? Typically these assessments are not included as part of record requests. However, the MDS could provide details of a resident’s care over time; changes in medical condition, physical and cognitive functioning, medications, diagnoses and treatments. The MDS describes what the resident is at risk for and what you’re doing to prevent a negative outcome or worsening of a condition. The MDS can significantly influence the interpretation of care.

Set yourself up for success! These five tips will improve any record you produce.

•Instill within your organization awareness of the importance of handling, organizing, maintaining, and storing the medical records.

•Systematically and consistently conduct chart audits to determine potential problems and erratic trends in charting.

•Invest in an MDS data accuracy program to ensure that incongruent MDS data entries are identified early on before final submissions to CMS or third party providers.

•Incorporate analysis of the MDS assessment forms during the initial phases of the records review process; use the MDS assessment to guide the review focus.

Know that the medical record is always pulled for review, regardless of the type of claim or allegation. By establishing good policies, providers can save themselves many headaches.


National Health Investors, Inc. (NYSE:NHI) announced it has completed the sale of 3 skilled nursing facilities in Texas to Fundamental Long Term Care Holdings, LLC ("Fundamental") for $18,491,000.  Fundamental owns and operates over a 130 long term care facilities in more than 17 states.  Fundamental is owned and controlled by Murray Forman and Leonard Grunstein.

The facilities, totaling 484 beds, have an average age of 41 years. Cash rent to NHI for 2013 for the 3 facilities sold was approximately $2,138,000, after allocations under the amended master lease. NHI continues to lease 4 skilled nursing facilities to Fundamental.


Documentation has been a growing problem in the healthcare industry especially short-staffed nursing homes.  In an article from Medscape, issues with charting are looked at and explored for potential problems. A nurse posed a question about charting. She detailed how the electronic charting system at her hospital was so cumbersome that many nurses had to stay over their shifts, which necessitates overtime, or they were clocking out and entering notes on their own time so that the charts would be up to date. The problem, she said, is that by the time the notes are entered, the patient’s condition could have drastically changed. Since the system records the time of the notes, this could lead to issues of charting integrity and in some cases, HIPAA violations.

The documentation standard is for charts to be updated within an hour of the assessment or treatment, unless more frequent updates are required, such as for a patient who requires more frequent nurse assessments. Untimely documentation leads to issues of the credibility of those notes. If a patient dies at 8:00 and the nurse enters her notes that he is healthy and well at 8:15, there’s obviously an issue of integrity. 

Electronic charting systems, like all newly implemented computer systems, will require some work to become familiar with the program. Maybe the nurses are going through a learning period, and as they work with the program it will be easier to use and easier to timely enter chart notes. If the system is too difficult to work with, nurses are probably not the only ones having problems. If doctors and nurses are both frustrated with the system, then a meeting should be set up with the administration. In either case the situation is going to require time. For right now, it seems inevitable that charting integrity will continue to be a source of concern for many hospitals.

 ProPublica released unredacted write-ups of problems found during nursing home inspections around the country.   For several months now, ProPublica has made redacted versions of this same information available in an easily searchable format in our Nursing Home Inspect tool. These versions, which reside on the U.S. Centers for Medicare and Medicaid Services website, Nursing Home Compare, sometimes blank out patients’ ages, medical conditions, dates and prescribed medications.


The agency has said the redactions are intended to balance patient privacy concerns with the need to inform consumers about the quality of care. ProPublica requested the unredacted reports because they are public records and because the added information can make them more useful.

For example, prescription information in the unredacted write-ups can help identify cases in which patients received medications such as antipsychotics that are dangerous for those with dementia.

Nursing Home Inspect allows patients and their families to quickly find nursing homes in their states and identify those with serious deficiencies and penalties in the last three years. The entire national collection of reports — listing more than 267,000 deficiencies — is searchable by keyword.

At this point, Nursing Home Inspect continues to link to only the redacted inspection reports. To search through the unredacted versions, you’ll have to download them and use a program like Microsoft Excel or a text editor that enables you to hunt for keywords or phrases.

The unredacted reports are grouped by CMS region and can be downloaded here. A list of states in each of the 10 regions is here.