John Nichols wrote a great article for The South Carolina Lawyer Bulletin for Spring 2008 discussing the admissibility of expert’s opinions pursuant to Rule 702, and the lack of necessity for South Carolina to adopt the federal standard described as Daubert for the infamous 1993 decision Daubert v. Merrill Dow Pharmaceuticals, Inc., 526 U.S. 579 (1993).  Daubert was intended to make expert testimony more admissible but Defendants and sympathetic Courts have made it more difficult and more costly to admit qualified expert opinions.  Mr. Nichols explains why the change is unnecessary and uncovers the disingenous arguments for adopting the change.  Below are excerpts from the article.

And what of Copernicus and Bruno?

“How do you know what you know?” That question was posed by Circuit Judge Roger Young in a November 2003 article he authored that was published in the South Carolina Bar’s magazine, The South Carolina Lawyer. Judge Young’s article has become somewhat of a centerpiece for the current efforts by the South Carolina Chamber of Commerce’s front group, the misnamed “Civil Justice Coalition,” in its efforts to have our General Assembly enter into the role of rule-maker by adopting a statute that would conflict with Rules 701 through 703 of the South Carolina Rules of Evidence. Of course, the role of making rules governing procedure and evidence in our judicial system is traditionally, and generally constitutionally, delegated to the Supreme Court. But the current effort, known as Senate Bill 687, attempts to usurp that authority in favor of a statutory revision of these rules of evidence.

In his article, Judge Young summed up his view of one means of determining reliability for scientific expert testimony by asking the expert the simple question: “How do you know what you know?” Judge Young pointed out that to assist the judges in interpreting the expert’s response to that question, the state and federal Supreme Courts have provided broad starting points, founded in evidence Rule 702. South Carolina’s version, which was adopted in 1995, was identical to the federal version until Congress amended the federal rule in 2000, which Judge Young points out was altered “to reflect the changes brought about by Daubert, although it does not enumerate the Daubert factors in the amendment.”

There’s the first rub: The United States Congress felt that Daubert and its progeny, particularly Kumho Tire, somehow strayed from the plain language of Rule 702, so much so that Congress felt the need to amend the Rule “to reflect the changes” in the Rule brought about by the United States Supreme Court in interpreting Rule 702 of the Federal Rules of Evidence. The Advisory Committee Notes to the 2000 Amendments say as much.

Turning to the current effort by the Chamber, in a hearing before a Senate subcommittee considering S. 687, advocates for the proposal claimed the current rules regarding admissibility of expert witness evidence in South Carolina resulted in a “lack of predictability” in our judicial system and that such unpredictability caused businesses to turn elsewhere when looking to locate. Advocates presented nothing other than their apocryphal stories, and the reason is clear: Businesses are simply not avoiding South Carolina because there is some perception that because South Carolina is not a “Daubert state,” our court system is unpredictable when it comes to the admission of expert evidence.

For example, on February 20, 2008, which ironically was the same day as a hearing before the Senate subcommittee, The State newspaper ran a front page article entitled “Massive trade center planned,” with the subtitle “Company could invest $100 million in first phase of I-26 project.” The article indicated an investment group known as World Trade City Orangeburg, LLC, which has ties to China and the United States, plans to purchase 1,200 acres of farmland near Bowman, South Carolina, for an international trade center that could employ more than 1,000 people. The group intends to eventually buy 5,000 acres, and its trade center will be near a 1,300-acre warehouse complex planned by a Dubai company, Jafza International, which bought land along I-95 near Santee for a project that could lead to construction of over $700 million in buildings and employment of 5,500 people by 2015. These international companies are investing significant sums into the Orangeburg economy.

Interestingly, on its website the South Carolina Commerce Department makes the following claim: “South Carolina is one of the most business-friendly states in the nation and continues to be the destination for companies to locate and expand.” The Department provides a “2006 Activity Report,” which brags about how “business friendly” South Carolina is; claims 14,420 new jobs were created in 2006; and lists “Top Ten Job Creations” during the year, all of which were investments in the State by out-of-state businesses.

In 2006, the “Small Business & Entrepreneurship Council” ranked South Carolina 11th among entrepreneur-friendly states, ahead of neighboring states Tennessee (13th), Georgia (25th) and North Carolina (40th). So the claims that there is no predictability in our rules of evidence and that this lack of predictability is scaring off business is completely untrue and as such cannot serve as a factual basis for just changing the established and familiar rules of evidence in a way deliberately designed to hurt the citizens, consumers, and small business people in favor of large out-of-state corporations.

Advocates for the rules changes in S. 687 often claim that “33 States have adopted Daubert,” but this is not true—even basic legal research belies this claim.  In fact, however, only 10 states currently adopt Daubert and Kumho Tire in their entirety, and a majority of States addressing the issue either limit its application or reject it outright like South Carolina’s current evidentiary rules.

The proponents of changing the rules also claim that other states have adopted legislation similar to S. 687, and thus South Carolina needs the statute in order to compete for business opportunities and create jobs. The truth is that only one other state has adopted anything like S. 687, and that legislation has not withstood a challenge on its constitutionality yet. Two other States have incorporated Daubert into their law by statute, but these are far from the broad reaching measures pushed by the Chamber of Commerce in South Carolina.

It is telling that the only proponent of S. 687 is the South Carolina Chamber of Commerce and its front group, “Coalition for Justice.” Groups that have testified and spoken openly in opposition to changing rules of evidence by statute include the South Carolina Attorney General, the South Carolina solicitors, consumer groups, small business groups and the courts. The Chamber simply has not made the case for change. Moreover, the General Assembly should consider the enormous financial impact on small business, consumers, and our increasingly burdened court system these changes would impose. The judges in our court system, who ironically we ask to rule on matters of life and death, are now being accused by the Chamber of Commerce of not knowing how to adequately deal with expert witness evidence in South Carolina after doing so for hundreds of years; those judges should be asked what they think of this ill-advised power grab by big business, and the rules changes’ costs and consequences.

Senate Bill 687 is a bad idea being promoted by the self-serving interests of large corporations intent on making access to justice and fairness under the law hollow promises. It is our hope that the facts will emerge through the fog of hyperbole and misinformation driving this effort to favor out-of-state corporations over the people of this state.

Addendum:  We would like to thank John nichols for allowing us to use his article. Nobody knows more about South Carolina law, or writes better than John Nichols.

The Salt Lake Tribune had an article about response times to call lights.  This is a major problem in many nursing homes leading to falls or loss of dignitiy.  Typically, a resident who needs assistance to go to the bathroom hits the call light.  No response.  The resident then has two choices: 1.  Attempt to get up without assistance and risk falling, or 2. Relieve themselves and sit in their own urine and feces.

Call lights are little red buttons next to every bed and bathroom in every nursing home. When pushed, an alarm should sound at the nurse’s desk and a light flashes over the bedroom door.
These call lights are how the frail and elderly summon for urgent help. But all too often, caretakers are slow to respond, if they respond at all. This is a common complaint from most if not all of our clients.

A Salt Lake Tribune examination shows that state inspectors have cited nearly one-third of Utah’s nursing homes for a call light violation in the past two years. 

At the Hurricane Rehabilitation Center, the call lights didn’t work in 10 rooms.

At the Bear River Valley Care Center, a man confined to a wheelchair waited 25 minutes for help getting into bed. "Sometimes it takes half a day," he told regulators. 

At the Willow Wood Care Center, a woman pushed her call light to get pain medication. She received her pills three hours later.

A slow response to a call light not only can impact a person’s medical care, but also steal their dignity. In a number of cases, people waited so long for help that they ended up soiling themselves.

Utah inspectors receive more complaints about call lights than anything else, said Greg Bateman, who heads the state certification team.  Often, call light problems are a symptom of inadequate staffing.

Because caretakers usually respond faster when they know inspectors are watching, Bateman said he often relies on resident complaints to identify a problem. There is no hard and fast guideline for responding to a call light, but state regulators want to see someone at least assess the person’s needs within the first five minutes.

Advocates for the Disability Law Center keep track of this problem. 
Eileen Maloney, who is a member of the center’s abuse and neglect team, said she visits some homes where call lights are constantly ringing and staff members ignore them.
The industry is teaming with state inspectors to create a new incentive program next year that will encourage nursing homes to replace their old call light system with the latest technology. 
The system would allow homes to document response times, providing proof that either resident complaints are valid or not.

Mother Jones had an interesting article about Ken Connor, the conservative Christian Republican who testified in support of a bill that would ban the use of mandatory binding arbitration clauses in nursing home contracts. Most nursing homes today, as a condition of admission, force vulnerable elderly people to waive their right to a jury trial. Instead, they must take any complaints about neglect or abuse to a private arbitrator, chosen and paid by the nursing home, in secret proceedings where awards are much lower. The arbitration agreements are often buried in a stack of complicated paperwork, where in some cases, they have been signed by blind people and those suffering from Alzheimer’s.

The nursing home arbitration bill should pass overwhelmingly. That’s why Republicans really, really don’t want to vote for the nursing home bill, and one reason Connor’s advocacy is making them squirm.   Connor sues nursing homes for a living. Just last month, Connor won a $2 million verdict against Sunrise Senior Living in California for failing to prevent and care for an elderly woman’s fatal bedsores. . As such, Republicans would love to dismiss Connor as just another greedy trial lawyer. But Connor’s religious-right bona fides simply make that impossible.

For three years, Connor served as the president of the Family Research Council, a leading social conservative outfit, and became a rock star among the GOP’s evangelical wing when he went to work in 2004 for then-Governor Jeb Bush to defend a Florida law that would have prevented doctors from removing Terri Schiavo’s feeding tube. For Republican legislators, Connor has moral authority. He also gives money to many of them, so Republicans have to tolerate him, even as he forces them into a corner where they have to chose between devotion to industry and devotion to God and life.

While the GOP views trial lawyers as its mortal enemies, Connor doesn’t see any contradiction between his profession and role as family values crusader. Instead, he sees his lawsuits against nursing homes as an extension of the work he did in the Schiavo case. "Removing the feeding tube, letting Teri Schiavo starve to death," he said in an interview, "I see this all the time with the elderly." Connor believes that the frail elderly are second only to the unborn in their suffering due to what he sees as a prevailing "quality of life" mindset, as opposed to one focused on the sanctity of life. He says he’s witnessed bioethicists in Florida argue that if an elderly person suffers from dementia, there would be nothing wrong with hastening his or her demise. "If you call yourself a Christian, you have an obligation to fight for social justice," he says, noting that, "It’s much easier to make the case for the elderly than for the unborn." 

He testified about some of his experiences with nursing homes: "All too often, the story is the same: avoidable pressure ulcers (bed sores) penetrating to the bone; wounds with dirty bandages that are infected and foul smelling; patients languishing in urine and feces for hours on end; hollow-eyed residents suffering from avoidable malnutrition, unable to ask for help because their tongues are parched and swollen from preventable dehydration; dirty catheters clogged with crystalline sediment and yellow-green urine in the bag."

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The Birmingham Mail had an interesting article about a nursing home administrator defending the care provided to residents despite the fact that 27 of her resdients died in one year!  The former manager of a Birmingham nursing home has hit back at allegations she didn’t look after residents properly.

Kathleen Smith, who ran the Maypole Nursing Home, in Kings Heath, until it was shut down by inspectors told a Nursing and Midwifery Council hearing yesterday that she adequately managed residents’ incontinence.

Defending herself, Smith, described it as not "unusual" to see residents seated with incontinence pads showing above their trousers.  But, she said: "It’s different to say you’re leaving them walk around with a pad out – that’s undignified."

Smith also dismissed claims she allowed a resident with chest problems to be inappropriately restrained in a bucket chair.  "It’s rubbish," she said, "I totally, totally disagree with that. The chair didn’t tilt back, it was a semi-recumbent chair."

Smith also refuted accusations she had allowed a resident’s nails to grow curled and yellow. "It’s absolutely ludicrous," she added.

The misconduct probe into Smith, who said she currently worked as a community psychiatric nurse, is also looking into allegations against her former Maypole nurse colleagues Carol Estelle Bushell and Mary Kathleen Casey.

Bushell, 48, of West Heath, and Casey, 70, of Harborne, have already admitted allowing drugs to be given to the wrong patients.

The Almanac News had an article about a nursing home appealing a fine after a resident’s death caused by their inattentiveness and lack of supervision.

During her 10-month stay at Atherton Healthcare nursing home in Menlo Park last year, 51-year-old resident Debra Nickel fell 14 times, including a fall where she suffered a traumatic brain injury. She died several days later.  State investigators have determined that the nursing home staff is at fault for Ms. Nickel’s death.  The facility was fined $100,000 for the neglect which is the most severe citation possible.

The Department of Public Health concluded that Atherton Healthcare staff was inattentive in caring for Ms. Nickel, who was known to be at risk for falls. The facility was hit with an "AA" citation the most severe citation under state standards.  "The facility failed to identify and continuously assess, evaluate and update the resident’s needs and plan of care to prevent further falls and injuries," according to the report.

Nana Cocachvili, executive director of Atherton Healthcare, located at 1275 Crane St., said the nursing home is appealing the decision, and that Ms. Nickel’s falls were "unavoidable."

Ms. Nickel died Dec. 1, a week after staff member noticed a "deep lacerated wound" on the patient’s head most probably from an "unwitnessed fall," according to the report. The staff member informed a nursing home physician, who stated that Ms. Nickel "does not need to be sent out for stitches because scalp wounds heal easily," the report says.  The staff member notified a second physician, who recommended Ms. Nickel be taken to the emergency room, where she was admitted three hours later with high blood pressure and a heart rate of 128 beats per minute, the report says.

The San Mateo County Coroner’s Office confirmed Ms. Nickel died Dec. 1 of swelling of the brain and brain hemorrhages caused by blunt trauma.

The citation linked to Ms. Nickel’s death isn’t the only Department of Public Health claim Atherton Healthcare is currently fighting.   In April, the state fined the nursing home $20,000 following an investigation into the Oct. 28 death of a 79-year-old man who fell backwards off a wheelchair lift.

The patient, Menlo Park resident Charles Ladeau, suffered major head trauma when he fell while being lifted into a van, and died shortly after the fall.  The incident exposed the fact that Atherton Healthcare was outsourcing the driving of patients to off-site appointments through a private company without a formal contract, and without "written standards how transportation services should be provided," according to the reports.

Ms. Cocachvili said Atherton Healthcare has appealed that decision too, and she argued the blame should lie on the transportation provider whose employee was supervising the patient when he fell, not the nursing home.   however, the nursing home cannot delegate care to a third party.  The nursing home is the health care provider who is ultimately responsible for the care provided to their residents.

In 2005, the facility changed ownership and was known as Canaan Healthcare. The current owners took over in early 2007 and the name switched to Atherton Healthcare.

Politico’s Samuel Loewenberg wrote an article about how high priced lobbyists are attempting to get rid of necessary reforms for nursing home care to improve.

The profitable nursing home industry is mobilizing Washington’s most well-connected lobbyists to fight needed reforms,  Recently state and federal investigators and outside experts have agreed to certain reforms as a gaggle of industry lobbyists plotted strategy.

Among the lobbysts was The Carlyle Group, the politically connected and powerful private equity firm that recently bought Manor Care, one of the nation’s largest nursing home chain, for $6.3 billion.  

“In spite of existing oversight mechanisms, we continue to see examples of horrific treatment of nursing home residents,” testified Lewis Morris, general counsel for the Department of Health and Human Services’ Office of the Inspector General.

The lobbyists are carefully watching the Senate, where legislation could increase the oversight and enforcement of the industry.  It is well documented how deficient the oversight and enforcement of the industry is as evidenced by the recent GAO Report.  The senators are expected to try to attach the legislation to the upcoming Medicare payments package.

The industry lobbyists are fighting provisions to fully disclose ownership of nursing homes.  Why? No one knows. Clearly, families of residents should be able to understand who owns and operates the facility where they place loved ones. 

Additionally, penalties would be increased to as much as $100,000 if a patient is harmed or dies due to poor care. The penalties, which have not been changed in two decades, are now capped at $10,000.

To gird for the increased regulation, the industry is using a half-dozen of Washington’s most politically potent lobbying firms on both sides of the aisle.  “It is going to be pretty much battening down the hatches, because we’re not going to have a fair shake with a Democratic majority,” said a nursing home industry lobbyist who spoke on the condition of anonymity.

Since Carlyle took over Manor Care, some homes have reported significant patient care problems, said SEIU spokeswoman Julie Eisenhardt.   Meanwhile lobbyists for The Carlyle Group are stating that there is no evidence that private equity ownership negatively impacts care.   Both the Government Accountability Office and the Senate Finance Committee are still investigating the negative effect of private equity ownership on nursing home quality.

The issue is at the heart of one of the most controversial parts of the Grassley-Kohl legislation: a requirement that the sometimes-twisted ownership structures of nursing homes be made more transparent.   Congressional staff, experts, and advocates for the elderly say that private equity firms often establish layers in ownership structure as a way to dodge responsibility and legal liability.

And GAO reported how federal government regulators often miss signs of abuse and care deficiencies, ranging from failure to ensure “proper nutrition and hydration and [prevent] pressure sores” to serious deficiencies that could lead to “actual harm and immediate jeopardy.”

CBS affiliate KDKA in Pittsburgh had an article about another sexual assault at a nursing home facility.  Do they even bother to do background checks or supervise their employees?

A nursing home employee is facing charges after he allegedly sexually assauted a patient who uses a motorized wheelchair.  Allegheny County Police have charged Marc Lane, 37, of Kittaning, with involuntary deviate sexual intercourse, two counts of indecent assault, indecent exposure and criminal attempt.

The 65-year-old male victim who suffers from Parkinsons Disease said in a police report that Lane came into his room at the Consulate Health Care facility on Saxonburg Boulevard in Indiana Township between April 11 and April 25 and drew the curtain for privacy.

Lane allegedly told the patient he would treat a skin condition, but that in fact led to a sex act. The victim is refered to as "John Doe" in the affidavit.

"Lane then asked Doe if he had ever been with a man," according to the affidavit. The resident told police he resisted the advances but that led to another sex act until a nurse walked into the room.

After a mini mental status exam, the victim scored 28 out of 30. Police determined the victim is of sound mind.

KPTV.com has a video and story showing a nursing home worker stealing from the residents.   A worker at an assisted living center was arrested and charged with theft after she was caught on camera stealing from patients, police said.

Deputies arrested the woman at the Regency Park Assisted Living Center.   The Washington County Sheriff’s Office received multiple reports of thefts going on at the center, so they set up a hidden camera to try and catch the thief.  Police set up a hidden camera and plant a purse with money in it in order to catch the thief.   Three days after setting up the camera, Quanecka Thompson, 23, was caught on camera going through the purse, pulling out the wallet, taking money, putting it in her pocket and leaving the room, police said.

Detectives said they set up the purse a second time, and again, Thompson was witnessed stealing money from it.   Deputies arrested Thompson last week.

I wonder if they did a background check on this nurse?

WNBC.com had a story about how a nursing home lied to a resident’s family regarding her death at the facility.  This typeof cover up oftens happens in nursing homes. The staff is typically the only ones who really know what happened to a resident.   The staff are worried about their job or are instructed by their corporate masters to mislead or cover up the neglect and abuse.

Olive Chase was 94 when she died at Sunrise at Fleetwood, an expensive assisted-living home in Mount Vernon, in February 2007.  The nursing home told Chase’s son that she had died in her sleep. The nursing home created an elaborate story that his mother had breakfast, was left alone at one point, and the aide returned to find she had died peacefully in her sleep.  The staff said Chase was sleeping at 7:30 a.m., but was "unresponsive" four hours later. Days after Chase was cremated, however, her family got a tip from someone with second hand knowledge of her death that the woman did not die peacefully.

Bob Chase, son of the woman who died, spoke with some of the staff and to the source who was the first nurse on the scene after his mother’s death.   The nurse saw Olive’s head caught between the bars of her hospital bed with her feet hanging off the side. The nurse said it appeared as if she struggled and then died of strangulation.

"Her tongue was protruding. It was purple," the nurse said.

The nurse said one of the maintenance workers then lifted Olive’s legs while she held onto one of her shoulders.

"We brought her up, laid her flat on her bed," said the nurse. "I brushed her hair. This nursing coordinator told us, ‘Don’t say anything.’"

The nurse said the last person to treat Olive for a bedsore raised the bed for the treatment but did not lower it after, despite instructions to do so. Olive was known to wander, the nurse said.

"We had a sign on the top of the bed, readily visible, stating to lower the bed at its lowest level when finishing care," the nurse said.

An anonymous call to the state Department of Health days after Olive’s death reported that the woman appeared to have died of asphyxiation after her head was caught in the bars, which triggered an investigation. The department concluded the caller’s complaint was valid. The department found that Olive’s body had been rearranged after her death, but it was not reported that way in Sunrise’s records.

San Mateo Daily Journal had an article about a settlement three years after a mentally disabled woman was scalded nearly to death in a Redwood City nursing home.  The resolution came May 13, one day after the county was set to square off in court with Res-Care and employees, including Oretha Ocansey who was criminally convicted for her role in the severe burning of Theresa Rodriguez in May 2004.

The county, which is Rodriguez’s legal guardian, sought both punitive and actual damages for Rodriguez who was left so badly injured her hospital care costs $3,000 a day.  The lawsuit was filed after Ocansey was sentenced for placing the woman in the boiling hot stream of water but the defendants argued the entire company was not responsible for the actions of the single employee.

On May 4, 2004, Rodriguez was seated in the shower at Res-Care, located on McGarvey Avenue, when 145-degree water poured onto her lap. Rodriguez, who is unable to speak or walk, suffered third-degree burns over 60 percent of her body. Nurse’s aide Oretha Ocansey placed a diaper on Rodriguez and did not alert a supervisor for two hours. An hour after the supervisor learned of the situation, Rodriguez was airlifted to a Santa Clara County hospital and spent more than two hours on life support.

During the investigation in Ocansey’s role, prosecutors learned that Res-Care forbid workers from calling 911 until they first contacted a supervisor. Prosecutors still considered Ocansey culpable, however, for waiting two hours before even contacting her boss.  In August 2004, Ocansey pleaded no contest to felony elder abuse in return for an immediate sentence of the 34 days she had already served plus probation and a ban from working at health-care facilities. The plea bargain spared her trial and up to four years in prison if convicted by a jury.

The county went after the nursing home and its corporate owners the following January, claiming the facility knew of the water temperature problem for six days before Ocansey placed her in the shower.