David McGuffey is a great nursing home and elder law attorney from Tn.  He is kind enough to share with other nursing home attorney his summary of important cases and legal theories.  Recently he wrote an article about direct liability of parent corporations in the nursing home industry.  Below are excerpts:

In Forsythe v. Clark USA, Inc., 864 N.E.2d 227 (Ill. Sup Ct. February 16, 2007), the Illinois Supreme Court affirmed the court of appeals, finding that a parent corporation may be directly liable where it exerts budgetary control over its subsidiary. In Forsythe, the court said the parent “can be held liable if, for its own benefit, it directs or authorizes the manner in which its subsidiary’s budget is implemented, disregarding the discretion and interests of the subsidiary, and thereby creating dangerous conditions.”  Mere ownership alone by a parent corporation is insufficient, as is having individuals serving on boards of both the parent and the subsidiary. Setting budgetary goals is likely insufficient. However, where a parent corporation specifically disrespects the actions of its subsidiary, using its ownership interest to command, then direct liability may be imposed over a specific controlled transaction. Under this theory, a parent is held liable for its own actions against a third party through “the agency of subsidiaries.”

So how is Forsythe applied to nursing home cases? In Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560 (1st Dist. Tex. App. August 3, 2006), the court held that the evidence was legally insufficient to support a verdict against the nursing home’s parent corporation and reversed a $2.2 million verdict. In support of the verdict, Plaintiff argued that the employment paperwork the nursing home staff completed that had the parent corporation’s name (HHD) on it, or refers to HHD as the employer, demonstrates HHD’s employment of the nursing home staff and establishes HHD’s vicarious liability. Plaintiff pointed to employment-at-will statements, job description acceptance forms, substance abuse policy notices, Equal Opportunity Employment statements, acknowledgment of time clock procedures, no solicitation policy notices, ethics and conduct policies, disciplinary and termination forms, and receipt of employee handbook acknowledgments as evidence supporting a finding that HHD employed the nursing home staff. Plaintiff also observed that the nursing home used administrative manuals containing HHD’s policies and procedures, thus further indicating that HHD controlled the details of the work performed.” This, however, was insufficient because there was no evidence that HHD controlled “the details of the care.” The transaction specific inquiry found some elements of control (the first element), but none that related to the negligent care itself (the second element).

Where an injury results from insufficient staffing, if the parent assumes budgetary control which limits staffing, then the parent is controlling the details of care. There are now ample studies linking quality of care to appropriate staffing making dangers imposed by short staffing foreseeable. See, e.g., AHRQ, Nurse Staffing and Quality of Patient Care (March 2007) (See also Press Release describing study on how chain planning practices can hurt patient care). In light of a subsidiary’s contractual quality of care obligation to the Medicare and Medicaid programs, control that prevents the subsidiary from providing quality care under its provider agreements is likely eccentric.

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The U.S. Attorney’s Office and the Pennsylvania Department of Public Welfare filed a complaint Thursday against the Holland-Glen Nursing Facility in Hatboro, Pa..  See article here.

The complaint alleges the facility has been operating without a nursing facility license and its services "substantially depart from generally accepted professional standards of care, thereby exposing patients to significant risk and, in some cases, to actual harm."

Among the specific allegations in the complaint are that Holland-Glen fails to properly administer medications, provide proper general resident care, check the backgrounds of its employees, and has falsified both resident medical records and records of billings to governmental and other payors.

The complaint seeks an injunction to prevent Holland-Glen from continuing to provide unlicensed care.

Here is an article discussing the recent $54 million verdict in a nursing home neglect case in New Mexico.

Lori Keith was awarded the compensatory and punitive damages against ManorCare Inc., a nursing home corporation out of Toledo, Ohio, for neglecting her mother causing her death.  At the time of her death, Barbara Barber was due to leave the ManorCare Camino Vista facility within a week to stay with family, Keith said. So when a phone call came about Barber’s death, Keith said she knew something was wrong. 

The verdict reached yesterday in Albuquerque includes four million dollars in compensatory damages and 50 million in punitive damages over the 2004 death of 78-year-old Barbara Barber.

The doctor who did the autopsy said Barber died of internal bleeding. The family’s attorneys produced evidence that the bleeding had been going on for several days without response.

Tthe nursing home tried to cover up the death by taking away sheets and other items in the room.

The corporation was responsible for the death, jurors decided, and they said the corporation owed Barber’s family for it.   The company declined to comment on specific details of the litigation.

USA Today newspapaers are running a special article about elderly care.

The articles are especially interesting because they could help give us some insight into the situations that families must deal with on a daily basis. These articles say that right now 48% of baby boomers are providing some care for their aging parents, and 8% have parents who have moved in with them, and this trend is growing.

If you click on the various links in the articles, they will take you to more articles which contain many interesting statistics. The comments made by readers at the bottom of the articles are also interesting.

The percentage of people over 75 in nursing homes fell from 9.6% in 1985 to 6.4% in 2004, according to the AARP Public Policy Institute.
The average annual cost for a semiprivate room in a nursing home is nearly $67,000, reports the MetLife Mature Market Institute reports. In parts of the country, it’s much higher. Still, if a senior citizen exhausts all her assets, Medicaid will cover her nursing-home care.

Not so with other types of long-term care. Except in isolated instances, Medicaid doesn’t cover assisted living or home-based health care. That means families often have to pay those costs. The average cost for an assisted-living facility was $35,616 a year in 2006, according to the MetLife Mature Market Institute. The average cost for a home health aide is $19 an hour.

I saw this article written by a family member who failed to read the contract when admitting his mother to the nursing home.  When she was neglected and he wanted to remove her, the nursing home charged him extra money because the family did not provide one week’s notice!! Incredible.  Make sure you read every clause in the contract especially to see if there is an arbitration clause in the contract. If you see one, strike it out of the contract; you do not want to waive your right to a jury trial.  Below are excerpts from the article.

I sent my mother, Sarah, to ManorCare in Easton for physical therapy after she suffered a fractured right hip. On my interview to sign her contract, everything seemed in order. My mother did not receive the care I had hoped for and what ManorCare said would be performed. I informed the nursing home that I wanted to remove her.

They told me she needed a release from her doctor, which I obtained. As I was wheeling her out, an official from ManorCare stopped and told me I hadn’t given them a week’s notice and would be charged for an extra week, which was $1,757. They said it was stated in the contract.

Neither my wife nor I remember being told about the week’s notice at the time of signing the contract. We paid the bill but are not happy about it. My mother, who lives on a limited income, should get her money back.

 

Below is from the SC DHEC website. DHEC is the state agency that has the responsibility to oversee and supervise nursing homes in SC.  Typically, they do nothing.

Do you have a complaint to file?
We ask that you carefully read the following information before filing a complaint. If you have supporting documents, please submit a copy – do not send originals. Listed below is the information you will need in order to mail or phone in your complaint.

Investigation and resolution of complaints are a critical Division of Health Licensing responsibility. A complaint is defined as an allegation that relates to a condition, events relative to a licensed activity, or to an activity subject to licensure. The Department is required to investigate any written or verbal complaint which indicates that there may be a violation of the licensing standards.

Any individual making a complaint against a licensed activity or provider may do so anonymously. If a complainant reveals his/her identity and requests confidentiality, the Department will not disclose the complainant’s identity unless mandated by state or federal law.

Your complaint will be assigned to an inspector who will determine if the Department can assist you. Written acknowledgement of our receipt of your complaint will be sent to you. Because of record keeping requirements and the need for accuracy, we ask that your complaint be submitted in writing, however you may call us with your concerns.

To generate an investigation, the Department must receive a complaint from an individual regarding an expression of discontentment, concern, and/or distress which may involve the conduct of the staff, conditions of the activity, care of the clients, etc., in an activity licensed by the Department. These expressions of concern could also involve a potentially unlicensed activity which may be operating illegally. In all instances, there must be an identification of a possible violation of a licensing standard.

Once an investigation is completed, the inspector will send a written report to you. Please contact the Department if your complaint is resolved before you hear from us.

The Department cannot always resolve complaints to the satisfaction of all complainants; however, we will investigate the complaint based on the facts, the appropriate regulation(s), and advise you of our findings. Our complaint inspectors are knowledgeable about the regulations and have access to attorneys who provide legal guidance for the staff.

Complaints regarding concerns not under the jurisdiction of the Department may be referred to another state agency or local authorities as appropriate.

Complaints concerning abuse – physical, sexual or psychological, or financial exploitation, or neglect or abandonment of a resident, (whether the incident occurred inside or outside of the facility) will be referred to the Lieutenant Governor’s Office on Aging, (800) 868-9095.

Complaints concerning Medicare and Medicaid should be referred to the Department’s Certification Division.

It is preferable that you try to resolve your own complaint before contacting the Division of Health Licensing. However, if you have exhausted your efforts to resolve the problem without success, contact us for assistance.

The Department receives a large number of complaints which require varying lengths of time to resolve. Your patience is appreciated and we will contact you as soon as possible.

Jim Perrow, Customer Service
DHEC Health Licensing
2600 Bull Street
Columbia, SC 29201
(803) 545-4370
(803) 545-4212 (Fax)

I read an article this weekend about a resident who was physically and sexually assaulted by the groundskeeper for a nursing home facility.  The family of an Alzheimer’s resident who was sexually assaulted by former Bedminster supervisor Robert Holland has sued him and the woman’s nursing home for civil damages.

The late Helen Priester was 92 and in a wheelchair when Holland, a groundskeeper at Pine Run Community in Doylestown Township, was caught with her in her room.

“We want to collect fair compensation for the injuries and damages Helen Priester suffered, but we also want to make sure that this doesn’t happen again,” said attorney Edward Shensky.

Holland, a Bedminster supervisor for 15 years, was sentenced in March to two to four years in prison for aggravated indecent assault, institutional sexual assault and related charges. Though he pleaded guilty, Holland maintained that Priester initiated the sexual contact and consented to the acts.

The suit says Holland was discovered May 5, 2006, by a Pine Run employee who noticed Priester’s door was closed.   The employee opened the door and found Holland assaulting Priester. The worker yelled at Holland to stop and went to get security when he would not.

When they returned, the door was again shut and Holland was continuing the assault.
Holland, who used a service entrance to come into the nursing home, admitted to assaulting Priester for at least three years, the suit said.
Shensky said the nursing home should have done more to restrict access to vulnerable patients.

There is a great discussion on abuse in nursing homes that I found here.

Nursing Home Abuse is on the rise even though less people are entering nursing homes with debilitating conditions according to recent data. The true number is probably much higher but The National Center on Elder Abuse estimates at least one in 20 nursing home patients has been the victim of abuse. There are nearly 1.4 million Americans that are living in nursing homes right now.

Unfortunately, a nursing home is not always the place of respite and healing it should be. According to the National Center’s study, 57% of nurses’ aides working in long-term care facilities admitted to witness, and even participating in, acts of nursing home abuse. The report sites systemic problems within the nursing home industry, like inadequate pay for workers and chronic understaffing, as contributing to the epidemic of abuse.

Neglect is the most common form of abuse. Residents in soiled beds and clothes, or those suffering from bedsores and frozen joints are most likely victims of neglect. Indications that a patient is over or under medicated can also signal neglect.

About 2500 cases of physical abuse or rape are reported each year.

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 A lawsuit against a Fort Smith-based nursing home company can proceed as a class-action suit, the Arkansas Supreme Court ruled this week.

The court affirmed a decision to grant class-action certification to a suit alleging Batesville Nursing and Rehabilitation Center failed to live up to contractual and statutory obligations to take care of the basic daily needs of hundreds of residents.

The suit, filed in 2005 by Annette Thomas, names the nursing home and its parent company, which was known in 2005 as Beverly Enterprises, as defendants. Beverly changed its name to Golden Horizons last year following its purchase by Golden Gate National Senior Care.

The suit alleges between Sept. 13, 2000, and June 30, 2004, the nursing home failed to care properly for 489 residents by, among other things, failing to provide adequate staffing and failing to provide a clean, safe living environment.

Attorney Philip Bohrer of Baton Rouge, La., argued the case did not include personal injury claims, but rather claims involving issues such as understaffing which would have affected all residents of the facility. Granting class-action status was preferable to "having 400 individual trials on the same issue and the same evidence," he said.

Bohrer also said many of the plaintiffs are elderly and unaware of their rights and would not be able to file individual claims against the company.

In its decision Thursday, the Supreme Court said the plaintiffs showed the case met the criteria for class-action certification. The justices agreed with Harkey the defendants would benefit from class-action status.

"A class action is clearly a more efficient way of handling a case where there is a predominating, common issue to be resolved for all 489 class members. A class action is also fair to both sides in this case, as it is a vehicle for all class members to have their claims heard, and Beverly will not have to defend against the same assertion of liability in a multitude of different lawsuits," Justice Robert Brown wrote.

 Police are investigating claims that a 91-year-old woman was raped at a nursing home.

The director of The Life Care Center says once they learned of the allegations on June 4, they immediately called the Department of Social and Health Services, Federal Way Police and the woman’s guardian.

Police say the rape happened about a month ago.

The family of the woman has removed her from the facility. The alleged rapist has been placed on leave during the investigation.

I wonder if they did a criminal background check or if they asked the suspect to undergo a polgrapg examination.