The Naplenews had a frightening article about a recent lawsuit that chronicles severe neglect of a resident. 
Sophie Arvigo moved into Lakeside Pavilion Nursing Home in Naples.  After several years there, her care and treatment took a dramatic turn for the worse.

There was neglect that led to painful and humiliating medical problems, and traumatic injuries that resulted from physical mishandling by staff.   The family contends nursing home staff dropped Arvigo from a Hoyer lift, a sling-like device to move immobile individuals, and wasn’t taken for X-rays until two days later despite outcries of pain.  She suffered an impacted hip fracture that was not recognized by the staff despite numerous signs and symptoms of a broken bone.

She was injured a second time while being wheeled in her wheelchair and a third time while being moved again in a Hoyer lift.   The complaint said the nursing home staff and administrators were negligent by failing to protect Arvigo against injuries and for failure to properly hire, retain and supervise nurses who were qualified and capable of treating her as expected in the nursing profession.

The nursing staff failed to address Arvigo’s numerous bouts of dehydration and severe weight loss, numerous urinary tract infections, respiratory infections, bed sores and odorous drainage from her left ear, among other medical conditions.

The complaint also says the nursing home failed to notify a doctor about the significant changes in Arvigo’s condition and failed to follow doctor’s orders for her treatment, including monitoring her changes.

The Chicago Tribune has a story about the suspicious deaths possibly caused by morphine overdose at a nursing home.  McHenry County prosecutors acknowledge the suspicious deaths at the Woodstock Residence nursing home in Woodstock have been difficult to pursue.  Three bodies were exhumed last year, and tissue samples were sent to a Pennsylvania lab for analysis.

The bodies of three others whose deaths investigators consider suspicious could not be examined because they were cremated.  Alissa Nataupsky, administrator of the Woodstock Residence, has denied any wrongdoing at the home and has said the investigation was triggered by a former employee.

When Cole, 78, died in September 2006, the cause of death was listed as pneumonia. Cole had been living at the Woodstock Residence for two months.

If lab results do not conclusively show that morphine overdoses caused the deaths of the three former residents whose bodies were exhumed, a grand jury might be used to further investigate the case, a law enforcement source said. 

The West Virginia Supreme court recently discussed how pre-suit notice and expert affidavit creates absurd results. This is very important since South Carolina passed similar legislation 2 years ago.  The article was written by Justin D. Anderson for Daily Mail Capitol Reporter.

Supreme Court Justice Larry Starcher wrote  "I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform) in its entirety," in a dissenting opinion last week. 

The lower court found – and the Supreme Court agreed – that the lawsuit should have complied with the requirements of the Medical Professional Liability Act of 1986 because it stems from the administration of health care.  Under the act, plaintiffs have to file pre-lawsuit notices to the defendants and an affidaivt from a qualified expert.

Also, under the act, the plaintiffs’ non-economic damages will be capped at $250,000 and $500,000 for other damages.

Starcher called the pre-lawsuit requirements "pointless procedural hoops" because a jury could determine whether or not the sutures were safe.  "To the contrary, application of the (Medical Professional Liability Act) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles," Starcher wrote.

He continued, "The only impact the (act) might have is to deprive injured plaintiffs of their rightful damages, by capping the damages that can be recovered at an arbitrary amount that has no relationship to the evidence." 

Chief Justice Robin Jean Davis, in a footnote to the original opinion in this case, declared that the pre-lawsuit requirements violated the state constitution, which says the Supreme Court makes such rules, not the Legislature. The constitution also guarantees access to the courts for all people and justice administered without "sale, denial or delay."

Starcher called the act "cookie-cutter" legislation that has created "absurd conundrums." He said the courts are more responsible and adept at making meaningful changes than the Legislature.

"But the Legislature, when changing the common law, often makes drastic statutory changes in response to real or perceived crises, and often without a clear understanding of the impact those changes might have on individual cases."

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.

 

Here is an interesting article about a pro tort reform doctor who has had a change of heart after experiencing first hand the law of unintended consequences as a result of tort reform.  Here is an excerpt from that article.

Dave Stewart’s mother went to the hospital for surgery in April. Four days later, she was dead.
To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as "10 on a scale of 1 to 10," according to her medical records.

The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. Stewart and his two sisters wanted to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn’t worth the money.

In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state. The law limited the amount of money for "pain and suffering" — usually the physical and emotional stress caused from an injury — to $250,000.  Proponents say it discourages "frivolous" lawsuits.   The cap on pain and suffering has never been raised nor tied to inflation.

Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.

Some malpractice victims and their families say the benefits of the law have swung too far in favor of doctors. Without accountability, some ask, what will keep physicians from making careless mistakes?

On average, California juries (which are rarely informed of the cap during trials) awarded $800,000 in malpractice death cases from 1995 to 1999, but the amounts were later reduced to $250,000 under the law. This suggests that medical malpractice victims and their families could be reaping much larger payouts than the law allows.

Recent malpractice premium increases may have had more to do with insurers’ business models and financial investments — including documented losses in their investment portfolios in recent years — than with their core businesses.

Stewart, of San Diego, said he had long been a MICRA advocate, believing it was in the best interest of doctors and patients. Not anymore.

After he and his family got over the initial shock of losing their mother, they wanted justice. Most attorneys turned them down over the phone, although three agreed to meet in person. Last summer, the entire family and their 80-year-old father made the trip to San Francisco and Oakland for meetings.

One lawyer said he would take the case only if the family paid the expected $50,000 in trial costs upfront.

San Francisco lawyer Brad Corsiglia at first seemed interested but later sent a letter dated July 11, 2007, that read: "As you can understand, with a cap of $250,000, we are limited in the type of case we can take on a contingency fee basis to only those cases that involve catastrophic economic losses."

"In 1975 you could buy a house for that money, and today what does it get you?" asked Stewart, whose parents would have celebrated their 54th anniversary last month. "Every year MICRA stays the same is another year that people who have been wronged will be denied the same justice."

Some state courts have struck down malpractice caps that didn’t rise over time. Last month, an Illinois circuit court judge ruled unconstitutional a 2005 state law that caps noneconomic damages in medical liability cases.

In 2006, a Louisiana appeals court ruled that its state malpractice cap, established in 1975, did not adequately compensate patients and needed to be raised to $1.6 million. The ruling was overturned this year by the state’s Supreme Court.

Some families who succeed at trial in California are often surprised at how little money they see in the end.

Becky Dessenberger’s 2-year-old son, Jacob, died at Children’s Hospital in Oakland in 2004 after surgery to repair a foot. Her son, who was suffering from bronchitis, was given a high dose of pain medication though the drug is known to cause slower breathing. He died the next day.

In 2006 the family settled with the hospital, which acknowledged no wrongdoing, for just under the $250,000 cap. After deducting for trial costs and lawyer fees, Dessenberger, 36, of Suisun City, said the family received "a little over" $100,000.

Dessenberger said no money would help ease her grief, but the small amount felt to her and her family like a slap in the face.

"Because he was a baby, this is all he was worth," she said. "I think it is horrible. I don’t think it’s fair."

I realize that this post might be a bit off topic but it shows the arrogance of insurance companies and their contempt and disdain for the rule of law.  Nursing home attorneys routinely see this when the insurance companies refuse to provide nursing home records or when they state an elderly resident’s life is not worth much because "they were already going to die" or when they blame neglect on resident complaince.

Allstate Insurance Co. told a judge that they refuse to produce key records to the Court no matter how much the Court fines them.  Judge Michael Manners has already fined them $25,000 a day since mid September — a total of $2.4 million and growing.

Last month the Missouri Supreme Court ordered the documents produced. At issue are the so-called McKinsey documents which show how Allstate set up a claims scheme in the 1990s that shortchanges clients while earning the insurance company huge profits.

Allstate still refuses to disclose the damaging documents.

The case stems from a car wreck seven years ago on Interstate 70. Allstate client Paul Aldridge of Hawaii ran into the back of a truck and severely injured the driver. He is suing Allstate for bad faith for refusing to pay the claim for years.

The Columbia Tribune of Missouri has an article about a new study that shows nursing home admission paperwork to be confusing and takes away a resident’s fundamanetal rights without explanation to the residents.

Nursing home admission agreements are confusing, can run 10 pages or more with unfamiliar language, are often signed in moments of distress, and force residents to sign away fundamental rights.

"It’s a situation where they’re worried about health, they’re worried about their family, and often they’ll just sign anything," said Richard Royer, CEO of Primaris, a Medicare quality improvement organization.

A study released today by the not-for-profit National Senior Citizens Law Center evaluated 175 legal agreements signed by residents who entered Missouri nursing homes. The study found many agreements allow facilities to evict residents for almost any reason, limit their rights to be visited by family members and require family or friends to assume personal financial liability for care. All such provisions are in violation of the federal Nursing Home Reform Act of 1987.

The study found that 17 percent of surveyed nursing homes reserved the right to evict someone for any reason even though federal law lists only six valid reasons for eviction. Consequently, patients with Alzheimer’s disease and dementia or residents who complain about the care received are being evicted for being "difficult."

The survey also found that 19 percent of nursing homes required a guarantee asking a family member or sponsor to take financial responsibility for the cost of care. The study argues it’s illegal to require fiscal responsibility and that Medicaid is required to cover expenses when a resident is unable to pay.

The study found 5 percent of agreements instituted visiting hours for residents, also in violation of the federal law.

One of the things not mentioned in the study but is very disconcerting to many residents is the inclusion of an arbitration clause hidden in the admissions paperwork that waives the resident’s right to a jury trial if the resident gets abused or neglected.

The study and a consumer guide outlining the rights of residents are available online at nsclc.org.

The L.A. Times has an incredible story that is far too common in today’s nursing home industry.  

 Rita Kittower buried her husband last month.  She had bade a tearful goodbye to her mate of 49 years, who had passed away in an exclusive assisted living facility in Calabasas. "He just stopped breathing," Kittower said she was told by a staff member.

Then came the anonymous phone call the day after the funeral. A female employee of the nursing home told Rita that her 80-year-old husband’s death had been anything but peaceful. She said Elmore Kittower had been beaten to death by someone on the staff. 

Detectives from the Los Angeles County Sheriff’s Department asked if they could exhume her husband’s body to determine what actually happened.

Mr. Kittower had a stroke which necessitated a stay at a nursing home for rehabilitation. Through a recommendation, Mrs. kittower found a place called Silverado Senior Living in Calabasas. The place specialized in taking care of residents like Mr. Kittower.  The price for such service wasn’t cheap. Rita said she paid nearly $75,000 a year for her husband to share a room with another patient.

On Sunday, Oct. 28, the Kittower family gathered at Silverado to celebrate Elmore’s 80th birthday. The following Sunday, Rita and Elise came back for another visit.  It was the last time they would see Elmore alive.

Two days later, a sheriff’s deputy told her that her husband had died at 8:30 that morning. When Rita called the nursing home she was told that Elmore had "just stopped breathing."

On Nov. 10, the day after her husband was buried, Rita received the mysterious call from a woman who identified herself only as Maria. The woman said she hadn’t slept in three days.

The woman said a staff member had punched Elmore in the eye and wrapped a towel around his head in an apparent attempt to suffocate him.

She hung up the phone, but not before getting the woman’s number. Rita asked her son to call the woman back. He elicited more details from the caller. When Rita asked about it, he said, "You don’t want to know."

Rita asked her nephew, Paul Zwerdling, to call the Sheriff’s Department.   As it turned out, sheriff’s officials already had their suspicions about Elmore Kittower’s death. The woman who called Rita Kittower also made an anonymous call to the Lost Hills sheriff’s station and mailed an anonymous letter to a nearby fire station.

Lt. Al Grotefend said detectives gathered sufficient evidence to warrant an exhumation.  After consulting with family members, she agreed to the exhumation in order to "find out the truth" and protect any other potential victims. 

Sources confirm some trauma to Kittower’s remains that was consistent with an assault.

Grotefend said detectives developed a prime suspect in the case — a caregiver who no longer works at the facility.  The suspect was arrested shortly after Kittower’s death on suspicion of elder abuse, but the case was rejected by the district attorney’s office.

Grotefend said that the arrest was made before the exhumation and that detectives have since gathered additional information and plan to resubmit the case to prosecutors.

Not surprisingly, Mark Mostow, a paid spokesman for Silverado Senior Living, said the company had completed its own "investigation" and "found nothing to substantiate any wrongdoing."   However,  Mostow admitted that the employee accused of assaulting Kittower had been terminated for violating an undisclosed policy.

There is a great article at Tennessean.com about dozens of deficient Tennessee nursing homes that have been closed or fined as a result of neglect including drug dealers visiting The Cornelia House nursing home to sell crack to employees and residents; at Mitchell Manor, patients went without necessary pain medication for a week because the facility was out; and at McKendree Village, staffing shortages caused multiple problems, such as one patient lying in his own feces for 3½ hours, despite pushing the call light five times.

"Things aren’t right here," one Cornelia House resident told a state inspector. "Residents are buying drugs almost every night. … Staff are aware but don’t do anything. The patients are left wet and not taken care of." 

The 159-bed Cornelia House and the 42-bed Mitchell Manor have closed since losing tax payer funding. The 300-bed McKendree is still open to private-pay residents, but 200 of its residents dependent on federal funding must find a new place to live by Dec. 29.   However, plenty of nursing homes in Tennessee have been identified as having serious violations without losing funding. 

While lots of facilities have been cited with these serious violations, the facilities that lost their funding were unable to fix the problems within the reasonable time given or were unable to stay in compliance.

"These facilities were afforded the same number of days as others across the country to develop and implement a plan to correct the violations, maintaining an appropriate standard of care for residents," said Christy Allen, assistant commissioner of the Tennessee Department of Health, Bureau of Health Licensure and Regulation.

Read More →

Residents at a nursing home in Idaho are alleging the facility is neglecting its residents and has failed to provide hot water for nine days.

A new water pump was ordered Thursday when hot water went out at the home.  Hot water was  available in the home’s kitchen and laundry room. The hot water was temporarily restored Thursday, failed again Friday and was not repaired until Sunday because the replacement pump was damaged in transit.  Relatives of some patients deny hot water was available.

"My mom hasn’t had a bath since she’s been here," said Butch Malone, whose mother arrived at the care center Dec. 10.

The families also say the center’s staff is unresponsive when patients call for help. For example, Randy Speaks’ 40-year-old daughter said it has taken staff as long as an hour to respond when his daughter is in need.

During the facility’s last inspection in September, state inspectors said the home was deficient in failing to properly treat or prevent bed sores, according to reports posted on the national Medicare Web site.

The inspection also found the home "failed to prepare food that is nutritional, appetizing, tasty, attractive, well-cooked and at the right temperature."

See full article here.