WGNtv.com reported that a certified nursing assistant said a patient was accidentally hurt on her watch, and then, she was told to lie about it.   On March 14, a patient from The Villa at South Holland nursing home was rushed to the emergency room after a fall. She suffered a gash to the back of the head so big it required nine staples. The CNA said she was asked to help move this patient by an RN when that patient fell out of a wheelchair. The CNA said the nurses on her floor were upset because the patient was supposed to be moved using a device known as a “hoyer lift,” which elevates and moves immobile patients.

“I accidentally stepped on the blanket and the resident slid from the wheelchair and I told the nurse ‘stop,’ but it was already too late and the resident had hit her head,” she said. “There was blood on the floor.”  This CNA, who asked that WGN conceal her identity, said she decided to come forward to protect other patients and in the hopes of shedding some light on behavior she calls shameful and illegal. The CNA said she was told by her superiors to lie about how the patient was moved.

“The paramedics arrived and they asked what had happened. ‘How did she hurt herself?’ I began to say how it happened, and the nurse from the third floor, who had not witnessed the fall said it did not matter how it happened, just that she hurt herself and is now bleeding,” the CNA said, explaining that the nurse cut her off.  “In fact, she told me to say this was a hoyer lift accident,” she said. “She knows for a fact this resident was not supposed to be moved unless it was with a hoyer lift. And the family knows that. And the family is calling their lawyer now. That’s exactly what the nurse had told me.”

The Illinois Department of Public Health sent investigators to look into the incident. Despite preparing a three-page statement giving her account, the CNA said her managers “typed up a four-sentence paragraph of what had happened.” She was told to give that statement to the health department.

The CNA said she resigned from her job with The Villa but not before telling state investigators her side of the story.  “I showed her my letter versus their paragraph,” she said. “I told her exactly how I felt. That this was being pushed under the rug.”

This CNA is a real hero.  I hope other CNAs find the same courage and conviction to do the right thing.


One of the goals in the nursing home industry is to reduce the misuse and abuse of antipsychotic medications in nursing homes, especially as a chemical restraint for residents with dementia who have behavioral problems.  People with dementia sometimes have behavioral problems that stem from an inability to communicate what is wrong. Rather than administering antipsychotic drugs, experts advocate the use of non-pharmaceutical alternatives first.  Studies have proven that other methods, such as providing more and varied activities and higher staffing ratios, will help manage behavior without the use of these drugs, which often have a sedating effect.

For instance, some experts believe sensory programs, such as familiar and pleasing music can help engage and distract residents with dementia. Often, if nursing staff notice a resident getting agitated at the same time of day, they might try playing music half an hour beforehand to minimize the agitation when it comes. Or they can provide another activity — drawing, working with clay, potting a plant — that the resident finds pleasing and distracting.

Sufficient staffing levels and reducing turnover also are important factors, said the Center for Medicare Advocacy, which is an advocacy group. Nursing homes should consistently assign staff members to the same resident to allow them to become more familiar with the resident’s behavior, recognize changes and perhaps have a better understanding of whether the behavior is an attempt to communicate problems, the center said.

In 2011, the U.S. Department of Health’s inspector general reported that not only were 14 percent of nursing home residents prescribed antipsychotic drugs, 88 percent of the time the drugs were prescribed to people with dementia even though the Food and Drug Administration warned those patients have a higher risk of death than those who didn’t take the drugs.  Studies showed the causes of death included heart failure, sudden death, pneumonia and infectious-related diseases, the FDA said. In addition, one-in-five residents were prescribed doses that were too high, placed on the drugs for too long or in other ways that violated the government’s standards, the inspector general said.

From that report and other advocacy calls for change, officials sought to lower antipsychotic drug use by 15 percent nationally, a goal that was reached by the end of 2013. The National Partnership to Improve Dementia Care, a public-private coalition led by the federal Centers for Medicare and Medicaid Services, said it now wants to reduce the prevalence by 25 percent by the end of this year and 30 percent by end of next year.


The New York Times had an interesting article on a new study regarding an experimental drug for Alzheimer’s disease which sharply slowed the decline in mental function in a small clinical trial, researchers reported, reviving hopes for an approach to therapy that until now has experienced repeated failures.  Experts say that there are no really good drugs now to treat Alzheimer’s.

The drug, called aducanumab, met and in some cases greatly exceeded expectations in terms of how much the highest dose slowed cognitive decline. Aducanumab, which until now has been called BIIB037, is designed to get rid of amyloid plaque in the brain, which is widely believed to be a cause of the dementia in Alzheimer’s disease.  However, there was a high incidence of a particular side effect that might make it difficult to use the highest dose. A major side effect was a localized swelling in the brain, known as A.R.I.A.-E. This has been seen with other drugs in this class, though the rate for aducanumab seems higher.

 Alzheimer’s experts were impressed, but they cautioned that it was difficult to read much from a small early-stage, or Phase 1, trial that was designed to look at safety, not the effect on cognition. Some analysts said they would have been impressed if the drug had slowed the rate of cognitive decline by 20 or 30 percent. But the actual reduction for the high dose was above 70 percent. They said the drug’s effect was stronger than that of Lilly’s drug.  Also, other Alzheimer’s drugs that had looked promising in early studies ended up not working in larger trials.

The results were presented in Nice, France, at the International Conference on Alzheimer’s and Parkinson’s Diseases and Related Neurological Disorders.

The Louisiana Record reported that Ronald Eugene Rudolph filed suit against Maison De’Ville Nursing Home of Harvey LLC because the facility did not provide adequate safety interventions to prevent him from falling from his bed causing a hip fracture.  Rudolph claims that after suffering a stroke over a decade ago he has been paralyzed on one side of his body and was a known fall risk.  On Oct. 30, 2012, Rudolph contends he fell out of his bed at Maison De’Ville because his guardrails were not up.

The plaintiff suffered a fractured hip that had to be corrected through surgery. The defendant is accused of failing to properly review all records regarding the plaintiff’s previous falls, failing to conduct fall risk assessment, failing to have bed rails in a raised position and failing to properly keep records regarding the fall.


Lung Disease News had an interesting article on the quality of air in institutional settings.  Elderly Europeans living in nursing homes with poor air quality are at a greater risk for poor lung health. Five indoor air pollutants that occur from a variety of sources including cleaning products and furniture can lead elderly individuals to develop symptoms of breathlessness and coughing and possibly even chronic obstructive pulmonary disorder (COPD). Nursing homes are thus advised to take steps to ensure high quality of the air their residents breathe in order to help prevent the development of lung disease.

“The majority of lung diseases are preventable therefore we must focus on strategies that target the risk factors linked to these diseases,” said Dan Smyth, Chair of the European Lung Foundation, in a news release from the foundation.

Smyth’s comments follow the publication of a new article in European Respiratory Journal entitled “Indoor Air Quality, Ventilation and Respiratory Health in Elderly Residents Living in Nursing Homes in Europe.” The study was conducted at 50 nursing homes in seven countries, with a total of 600 elderly individuals evaluated for lung health. The study was a part of the European Union-funded GERIE research project, which aims to improve the health of elderly individuals living in nursing homes.

“Our findings have shown an independent effect of several indoor air pollutants on the lung health of the elderly living in nursing homes,” said Dr. Isabella Annesi-Maesano, who is from Medical School St. Antoine in Paris and was the principal investigator for the study. “This is a worrying problem since the body’s ability to cope with harmful air pollutants decreases as we age. Nursing homes should do more to prevent indoor air pollution by limiting its sources and by improving ventilation in their buildings. The respiratory health of residents should also be checked on a regular basis.”

Regardless, the researchers found that only 18% of residents had an adequate ventilation system installed within their nursing home. This may have contributed to a high association between exposure to carbon dioxide (CO2) and breathlessness, coughing, and COPD. Higher levels of PM10 and NO2 also contributed to breathlessness and coughing, high levels of PM0.1 were associated with wheezing, and high levels of formaldehyde were associated with COPD.

“These findings add to a body of evidence confirming that indoor air pollution is one of these risk factors,” said Smyth. “We must raise awareness of this, through campaigns such as Healthy Lungs for Life, to ensure that the public, patients, healthcare professionals and policymakers understand the importance of breathing clean air to help prevent disease.”

CBS News had an interesting article about the Iowa case involving marital relations when spouse is incompetent.  Henry and Donna Lou Rayhons are married but last year, Donna was moved into a nursing home, suffering from dementia and Alzheimer’s. According to Henry’s family, this was decided by her daughters from a previous marriage. Conflict developed over how to care for Donna Lou Rayhons, culminating in a meeting in which staff told Henry Rayhons that his wife was no longer mentally capable of legally consenting to have sex.

State prosecutors said Henry Rayhons – a long-serving state lawmaker – ignored that message. He stood trial for sexually assaulting his wife, who died last August. The charges were filed days after she died.  Rayhons was charged with sexual abuse in the third degree and could have served up to 10 years in prison if convicted.  Experts could not think of another rape case that happened because a previously consenting spouse could no longer legally acquiesce.

The crux of the case was the question of Donna Lou Rayhons’ ability to consent. Iowa law defines an act as sexual abuse in the third degree if the two parties are not living together as husband and wife and if one person “is suffering from a mental defect or incapacity which precludes giving consent.”

The jury acquitted Rayhons after about 13 hours of deliberation over three days, jurors on Wednesday found Henry Rayhons, 78, not guilty of third-degree sexual abuse of his wife, Donna Lou Rayhons. Henry Rayhons testified in his own defense that on the night in question the couple held hands, prayed and kissed, but had no sexual contact.

“The truth finally came out,” Rayhons said after the verdict, noting that he believed his wife was “with him” throughout the trial.

 Jurors weighed testimony from family members, doctors and investigators throughout the trial in Hancock County Court. Rayhons’ defense attorney said a guilty verdict could raise fears that any interaction between spouses could be interpreted as sexual abuse. Prosecutors said a not guilty verdict would put others with dementia at risk of being harmed.

During the trial, nursing home staffers testified that Donna Lou Rayhons’ roommate talked about the couple having sex behind a curtain, but in testimony the roommate said she was unsure whether the noises she heard that day were sexual in nature.

Prosecutors said investigators found DNA evidence on sheets and a quilt in his wife’s room. They also played a recorded interview with an investigator that showed that Rayhons initially said he and his wife never had sex at the nursing home, but later said they had a few times, and possibly briefly on the day in question.

The Chicago Sun Times reported that the death of ALF resident Dorothy Byrd has been ruled a homicide. The Cook County medical examiner’s office announced that Byrd’s Feb. 4 death was a homicide. Byrd died during an “inappropriate administration of medication by medical personnel” at the facility, according to a death certificate.   Testing revealed Byrd died of morphine and hydrocodone toxicity and heart disease.

Byrd was one of six residents there who became ill on the morning of Feb. 3, according to the South Holland Fire Department.  One of the other patients, Leon Krynicki died at Providence Hospice in Tinley Park on March 9, according to the medical examiner’s office. An autopsy the next day was inconclusive. A third patient,Robert Rundin, died at Saint Margaret’s Hospital in Dyer, Indiana, on March 7, according to the Lake County coroner’s office. His manner of death is pending further tests, according to the coroner’s office. Full autopsy results are not expected for four months.


Infamous nursing-home owner Michael Morton met with lobbyist Gilbert Baker a second time to discuss (unethical? illegal?) judicial campaign contributions, including those to since-ousted Circuit Judge Michael Maggio (who admitted to being bribed by Morton).  In January, Maggio, 53, pleaded guilty to a felony bribery charge in a case that resulted from his handling of a negligence lawsuit filed against Morton’s Greenbrier nursing home in the 2008 death of patient Martha Bull.  In his plea agreement, Maggio admitted accepting campaign contributions, at least in part, in return for being “influenced and induced” to lower the Faulkner County jury’s $5.2 million negligence lawsuit judgment in the Bull case to $1 million on July 10, 2013.  That ruling came two days after Morton wrote $24,000 in checks to eight political action committees, seven of which later helped finance Maggio’s campaign. Morton has said he mailed the checks to Baker’s home and has produced a FedEx receipt showing a delivery from his office to Baker’s house on July 9, 2013.  Neither Morton nor Baker have been charged with a crime yet.

Baker, a former state senator and fundraiser for Maggio’s now-halted campaign for the Arkansas Court of Appeals, did not return a phone message seeking comment. Former U.S. Attorney Bud Cummins, who represents Baker in a federal criminal investigation relating to those contributions, declined to comment.

Until now, there has not been any public mention of a second meeting between Morton and Baker about the Maggio campaign. Baker, a Conway Republican, has never publicly acknowledged the first meeting that Morton has said took place at Brave New Restaurant with Baker and Baker’s associate Linda Leigh Flanagin.  In an email to the Arkansas Democrat-Gazette, Morton spokesman Matt DeCample wrote, “When Baker first mentioned donating to Maggio’s campaign to Morton, it was at an event both attended at Brave New Restaurant. … However, that was just a brief mention in passing at an event.

Asked when and where the second Morton-Baker meeting took place, DeCample said Tuesday that he would have to check to see whether that information was considered part of the investigation and did not know how much detail he could provide. He later replied in an email saying in part, “I can’t get into other details beyond that which aren’t yet in the public record (court records, ethics commission report, etc.) while the federal investigation remains open.”

When Morton testified before the staff of the Arkansas Ethics Commission in May 2014, he said, however, that he ran into Baker and Flanagin at the restaurant, was asked if he’d support Maggio and replied, “yes,” according to a commission-released summary of the testimony.  In June 2014, Baker appeared before the commission staff and testified that he did not remember specifically asking Morton for contributions but said he would not deny that he did because he asked Morton to donate money all the time.

Michael Morton, who owns about 15 percent of all nursing homes in Arkansas, is pushing forward with plans to expand his empire. He has donated more than $1.3 million over the past 16 years to various political campaigns. Morton expects to start construction on his first assisted-living center this year in Hot Springs, and in January he launched a pharmacy business to “serve” his nursing homes, another revenue stream.

In November, he bought three nursing homes in central Arkansas in transactions totaling $11.4 million, bringing his total currently operating to 27. And he has two new 120-bed homes under construction, one in Little Rock that’s expected to open in August or September and a Clarksville location that will replace his nursing home in Johnson County in August.

The nursing homes he operated in the fiscal year that ended in June 2013 generated $148.65 million in revenue and $14.3 million in profit, according to the most recent figures available from the Arkansas Department of Human Services. (Four of his nursing homes were among the 10 most profitable facilities in the state that year.)  On the advice of his attorneys at Hardin Jesson & Terry PLC of Fort Smith, Morton has also adopted a scheme to divide the corporate structure for each of his facilities. One company operates the nursing home while a leasing company, also controlled by Morton, owns the building. In addition, Morton’s Central Arkansas Nursing Centers Inc. contracts to provide “administrative services” to each nursing home in which Morton is a stockholder.  He also added within the last few years mandatory arbitration clauses to the admission papers, so if a dispute does arise it will be settled outside of the courtroom.

David Couch, a plaintiff’s attorney, told Arkansas Business that Morton’s legal strategy is working — “if the goal is not to be held accountable when you hurt someone.”

See articles at Arkansas Online and Arkansas Business.

The Pound Civil Justice Institute — a legal, educational “think tank” that works to strengthen the civil justice system — has just announced the release of its latest publication, Forced Arbitration and the Fate of the 7th Amendment:  The Core of America’s Legal System at Stake? This 172-page publication reports on Pound’s 22nd annual Forum for State Appellate Court Judges, attended by 144 state appellate judges from 36 states, held on July 26, 2014 in Baltimore.  The report contains the two academic papers prepared for the Forum (“The Demise of Deterrence: Mandatory Arbitration and the ‘Litigation Reform’ Movement” by Prof. Myriam Gilles of Cardozo Law School, and “State Court Authority Regarding Forced Arbitration After Concepcion” by Prof. Richard Frankel of Drexel University School of Law), commentary by panels of legal experts, and frank discussion among the attending judges.  Also included is a report by Prof. Jeff Sovern of St. John’s University School of Law on his empirical study on consumer understanding of arbitration provisions in contracts.   2014PoundReport

The Forum report shows a real awakening among state court judges on the issue of forced arbitration, as relayed in the many pages of comments from judges during their small-group discussions.  Judges’ comments were obtained under the promise of anonymity, which encouraged frank and open dialogue.  For example:


·         “I’ve been a big proponent of arbitration throughout my career, and I’m beginning to think that may have been wrong-headed. You listen to the discussions these days about whether we are going to lose the right to trial by jury because we won’t try jury cases anymore. That’s of some concern.”

·         “Before I became a judge, I was put on a committee with judges and lawyers.  We actually pushed arbitration, mandatory arbitration, or mediation in all forms as available to litigants.  We actually pushed this.  Now I have a completely different point of view about what might have been behind that push.  If you read the decisions, you can’t help but see the thin premises about why the Federal Arbitration Act would apply.”


·         “The courts are supposed to be the place where we get it right, where we see that all of the cards get played. I don’t think that is happening anymore. I don’t buy it for a second that arbitration is there to protect any consumer. It is not. It is there to protect the business model.”


·         “There was this push by the people who were afraid of lawsuits . . . First, they tried to change the law. Then they tried to change the courts. Then they pushed for arbitration. Yes, my view is that it is directly part of the whole scenario by big business and big money to change the whole system. I think we are losing. And I think trial judges are losing.”


You may download the report for free via Pound’s website at http://poundinstitute.org.  You may also purchase hard copies at the website.  If there are judges or policy-makers whom you feel should receive the report, please contact Pound’s Executive Director, Mary Collishaw, at 202-944-2841 or mary.collishaw@poundinstitute.org. The Pound Institute is a membership organization.  If you are interested in becoming a Pound Fellow and advancing the Institute’s work, please contact Ms. Collishaw, or visit Pound’s website to learn more about its activities.  The Pound Institute welcomes your membership, as well as direct donations for its Judges Forums and other programs.  All Pound Fellows and Forum donors are listed in the materials distributed to judges attending the Forums.​

The Boston Globe had an article claiming that safety alarms on beds and wheelchairs may not be as effective as nursing homes wish. Typically, care facilities attach alarms to beds and wheelchairs of patients considered at risk of falling. The pressure-sensitive devices have been used since physical restraints were outlawed in the 1990s.  Removing alarms is part of an effort by Hebrew SeniorLife and other innovative caregivers to change the culture of nursing homes. Nationwide, it has been spearheaded by the Pioneer Network, a consortium of geriatric professionals that since 1997 has promoted greater autonomy and more personalized care for seniors.

But do alarms really keep residents safer? Are they worth the price of leaving them in fear of making the slightest move, interrupting their sleep and that of their roommates, and driving nurses and nursing aides to distraction every time one goes off?

Hebrew Rehab has virtually eliminated alarms from its rehabilitative and long-term care facilities in Roslindale and at NewBridge on the Charles in Dedham. Previously, 30 percent to 40 percent of the 600 patients had bed alarms, chair alarms, or both.  Since fully implementing the program a year ago, Hebrew Rehab has not seen an increase in falls or serious injuries, said Tammy Retalic, chief nursing officer at Hebrew Rehab. And as residents free themselves from the tyranny of alarms, more are walking, eating, and dressing without help.

“This is a movement away from arbitrarily restricting people,” said John N. Morris,director of social and health policy research at HSL’s Institute for Aging Research, an affiliate of Harvard Medical School. “It’s about giving them dignity and independence in terms of functions in their life.”

Genriyetta M. Sitnikova is among those freed from alarms. Sitnikova, who had been very independent, wouldn’t get up at night to use the bathroom, worried that the alarm would wake her roommate, said her daughter, Sofia Verbitsky of Stoughton. During the day, she feared making a move in her wheelchair.

If somebody has a very high risk of falling, we monitor them very often.’ said Bozhena Kogan, nurse, Hebrew Rehabilitation Center.  Instead of just poking their heads in a room to make sure patients were OK, nurses and nursing assistants would pose a series of questions: “Would you like to go to the bathroom? Would you like a drink? Do you feel comfortable? Do you have any pain?”  Unless a staff member is nearby, the patient is on the floor by the time help arrives, with or without an alarm.  “If anything, the alarms gave staff a false sense of security,” said Lynda Crandall, executive director of the Pioneer Network and a gerontological nurse practitioner in Oregon.

The nursing staff must be proactive, addressing patients’ needs before they would try to get up on their own. The staff found that even patients with serious dementia displayed patterns of behavior that could be anticipated.  Based on their observations, the nursing staff refined care plans. “If somebody has a very high risk of falling, we monitor them very often,” said Kogan.

At shift changes, nurses and aides would meet briefly to discuss changes in patients’ emotional and physical health. After the pilot program proved itself over five months, Hebrew Rehab phased in purposeful rounding throughout its facilities. It all comes down to adequate staffing based on the needs of the residents.