On April 27, 2007, Gary W. Poliakoff spoke at an annual conference hosted by the National Business Institute, entitled, "Nursing Home Malpractice: Evaluating and Addressing Accountability." Mr. Poliakoff also was a speaker at the same conference in 2006, also regarding nursing home malpractice litigation. Mr. Poliakoff’s topic this year was, "Issues Involved in Taking the Case to Trial." Included in his presentation, Mr. Poliakoff discussed opening arguments, special litigation techniques, tips for making a persuasive argument, sending the right message during closing arguments, how to determine damages, and examples of litigation in nursing home cases. The attendees consisted of attorneys and paralegals representing both plaintiffs and defendants in nursing home litigation. In his presentation Mr. Poliakoff also provided significant case law regarding nursing home litigation, as well as significant orders issued by courts in nursing home cases.

While Mr. Poliakoff’s firm represents only plaintiffs (patients and their families) in nursing home abuse and neglect cases, he presented case law, exhibits, and legal points applicable to the nursing home litigation as a whole.

There is no need for "tort reform" when 100,000 patients die each year as a result of medical malpractice and juries tend to side with the doctors anyway!

Juries in medical malpractice cases sympathize with the doctors being sued rather than the patients who are suing them, a law professor at the University of Missouri at Columbia has concluded after analyzing three decades of research on the subject.

There is no evidence to support the propoganda that the tort system amounts to a lottery for injured plaintiffs. If anything, the system is biased against them.

For several years the Bush administration has pushed to reform the tort system, decrying an "epidemic" of frivolous malpractice cases and "runaway" jury verdicts that officials maintained were forcing doctors out of practice and leaving patients without needed medical care.

"The studies reveal that juries treat physicians very favorably, perhaps unfairly so," Peters writes, "and are more likely to defer to the judgment of a physician defendant than other physicians are."

Doctors, he found, win about half of the cases that independent experts who review them believe should result in a plaintiff’s victory. That juries rule in favor of doctors more often than independent medical reviewers do is particularly surprising, Peter says, "given the documented reluctance of physicians to label another physician’s care as negligent."

Overall, injured patients win only about 27 percent of all cases that go to trial — the lowest rate of any category of tort litigation, researchers have found.

There are several reasons for the bias in favor of physician defendants, Peters notes. Among them are the defendants’ superior economic resources and social standing; jurors’ willingness to give a doctor the benefit of the doubt in cases in which the evidence is confusing or complicated; and cultural prohibitions against seeming to profit from injury.

A jury’s lack of medical expertise, Peters says, tends to favor the doctor, not the patient.

"Critics assume that the ‘battle of experts’ frees juries to award unjustified recoveries," he writes. "The data suggest that it is more likely to shelter negligent physicians."

 A wrongful death lawsuit was filed against a Menomonee Falls nursing home, contending that a resident died from complications caused by broken bones in both legs that she suffered during a fall that was not reported.

Dorismae Burgardt was dropped by a nursing assistant at Menomonee Falls Health Care Center using an improper technique. The incident was not reported to a registered nurse or the woman’s physician. The first mention that something was amiss came the next day, when it was noted on her chart that Burgardt had "bruises" on both knees caused by being "lowered to the floor".

Three weeks later, Burgardt was dead. She was 81.

"This lawsuit is about dignity and safety," said attorney Jay Urban, who filed the lawsuit on behalf of Burgardt’s estate and her husband, Allan Burgardt of Germantown. 

See full article

Read More →

A federal jury awarded $1.75 million to a woman who said her sister lost her dignity in the last days of her life because of unhygienic conditions and improper care at a Charleston nursing home.

Tammy Rectenwald, 44, lived at Meadowbrook Acres on Greenbrier Street from March 1999 until October 2003.

On Oct. 8, 2003, she had chest congestion and other signs of pneumonia, but nursing home staff did not call her family or an ambulance.  When the nursing home called Taylor 12 hours later, she insisted that Rectenwald be sent to the hospital.

Rectenwald died a week later at Saint Francis Hospital, where doctors found evidence that she had been neglected, such as an infected catheter site and dirty nails and skin. 

Taylor sued Harrell Memorial Nursing Home Inc., which owns the nursing home, and Nursing Care Management of America Inc., which manages it. Both companies are based in Ohio. The jury found on April 20 the company failed to provide adequate care for Rectenwald.

The award is West Virginia’s second-highest nursing home verdict. “The only way to punish a facility and make them clean up their act is financially,” he said.

I ran across a sad but interesting article discussing the difficulties in choosing the right nursing home for a loved one.

The author was looking for the right place for his wife who suffered from Alzheimer’s Disease. He used the federal database (the Nursing Home Compare Database) that is supposed to help in choosing a nursing home for our loved one. This can be found at: www.medicare.gov/NHCompare.

He visited dozen facilities, making a careful inspection of each, before finally deciding on one that seemed just right.  Afterwards he realized, after reading an editorial in the Boston Globe, that he could easily have made a really bad choice.

The Boston Globe April 27 piece entitled, “Enforce Quality Care for Elders,” the Globe points out that the Department of Health and Human Services (DHHS) is failing in its duty to make sure that nursing homes correct their shortcomings and then continue to meet quality standards. That is the conclusion of an April 23 report Congress mandated from the Government Accountability Office (GAO). Here’s a quote from that report, referring to the Centers for Medicare and Medicaid Services (CMS):

In general, the effectiveness of CMS’s management of nursing home enforcement is hampered by the overall complexity of its immediate sanctions policy, intended to deter repeated noncompliance, and by its fragmented data systems and incomplete national reporting capabilities.”

You’ll find this report at: www.gao.gov/htext/d07241.html.

According to the Globe, the U.S. has more than 16,000 nursing homes, caring on an average day for about 1.5 million patients. Another report that Congress mandated dated Feb. 21, 2002 — more than five years ago — begins: “HHS Nursing Home Compare Website Has Major Flaws.”

This report said: “The report finds that ‘Nursing Home Compare’ has major flaws that can mislead families seeking to find a safe nursing home.”

Here’s what they’re hiding from consumers: the data on ‘Nursing Home Compare’ does not include tens of thousands of recent violations of federal health standards, including nearly 60 percent of the violations involving death or serious injury. 

Tthe Nursing Home Compare Web site is being used by millions of familiest. The Web site receives approximately 100,000 visits a month and is one of the most popular destinations for individuals who view the Medicare homepage. HHS says, “the most important information on this site is the searchable database that allows the public to determine the compliance status of virtually any nursing home in the United States.”

Despite this talk of compliance, the report shows that the HHS Web site in fact excludes information on many documented health violations in these nursing homes. Information is missing because Nursing Home Compare does not include the results of complaint investigations conducted by state inspectors.

You can read the whole thing. Just search on: “Nursing Home Compare Website Has Major Flaws.”

The former owner of several nursing homes has been sentenced to 42 months of imprisonment after being convicted of health care fraud and money laundering.  Rocky Lemon pled guilty on both charges.

In addition to the prison term the owner must serve three years of supervised release after completing his imprisonment and pay more than $4 million in restitution to Medicare and Medicaid. 

From 1997 to April 2001, Lemon owned and operated more than 50 nursing homes through TLC Healthcare Inc.

Lemon admitted that he executed a scheme to defraud the Medicare Program and the Texas Medicaid Program by diverting Medicare and Medicaid money to his own personal use and benefit.

Lemon used some of that Medicare and Medicaid money to finance his purchase of nursing homes, then sold some of the nursing homes for profit and funneled a portion of the net proceeds into his personal bank and brokerage accounts.

See article here

Oklahoma Governor Brad Henry has vetoed a tort reform bill that would have changed the way medical malpractice cases were litigated in the state.  Governor Henry said he found the bill unconstitutional and restrictive of citizen’s rights. 

One example he cited was a $300,000 cap on non-economic damages such as pain and suffering.  The bill would also restrict punitive damages in several circumstances.  Governor Henry says he will work with lawmakers to address some of his issues with the bill.

Read the article at :  http://www.insurancejournal.com/news/southcentral/2007/04/30/79077.htm

 U.S. Medicare Monday proposed a $690 million increase in payments to nursing homes. The 3.3-percent increase would go to nursing facilities that provide skilled nursing and rehabilitation care to Medicare beneficiaries, according to the Centers for Medicare & Medicaid Services.

Under the new payment schedule, called the skilled nursing facility prospective payment system, the daily rate for room, board, medical care and other expenses would be increased. Current payments are based on a 1997 market basket, but the proposal would update rates using a 2004 market basket.

Hopefully, this increase will lead to more staff who are better trained.

It is horrible how the U.S government treats war veterans.  This article discuss how a Phoenix, Az nursing home for veterans was cited for negligence because of mismanagement and understaffing.

State review blames staffing shortage for nursing home troubles.  A state government-run nursing home for veterans suffered from staffing shortages, poor morale and mismanagement.

The Governor’s Arizona State Veteran Home Review Team report said the Phoenix nursing home had problems with nursing shortages, high personnel turnover, poor organization and lack of direction from state administrators.   The vets home has been fined by federal regulators for poor care and some cases of patient negligence.

When two residents at a nursing home in Santa Cruz got eviction notices last March, they decided to fight them. They called Linda Robinson of Advocacy Inc., a Santa Cruz nonprofit, to help them file appeals with the state Department of Health Services. A little more than a year later, the issue is being resolved according to an April 11 memo signed by Kathleen Billingsley, deputy director of the state health department.

The April 11 memo affects nearly 900 nursing home patients in Santa Cruz County as well as 1,400 nursing homes statewide with more than 133,000 beds.

"In a year, dozens, maybe hundreds, of [eviction] notices are sent," Connors said. "They get issued way too often in my experience. Patients have the right to be protected from arbitrary transfers"

Billingsley’s April 11 memo to district managers covered policy and procedures for appealing eviction notices. It also said staff must receive training to make sure policy and procedures are followed.

Last year, a lawsuit was filed, complaining about a backlog of nursing-home complaints. This month, a state auditor, reporting on 17,000 complaints filed over two years, said the department had not completed about 60 percent of its investigations in a timely fashion.

See article here.