Poliakoff and Associates wishes you a Happy New Year!

Please keep safe and remember those we have lost this year.

ThinkProgress had the Top Ten Travesties Justice.  See which one you believe is the biggest travesty.

Rick Shapiro listed the Top Ten Civil Justice Stories of 2013.

Number 8 was Nursing Home Failures.

8. Nursing Homes Fail Patients Across the Country

The demand for nursing homes is increasing every year, but it appears that many nursing homes are being run poorly, with too much attention to cost-cutting, and not enough on patient safety. More than 1.5 million Americans live in our nation’s nursing homes and, over the next decade, that number is expected to increase by 40 percent as baby boomers become long-term care consumers. Unfortunately, a new report published by Families for Better Care shows that 90% of nursing homes are deficient. To make matters worse, many families are being forced to give up their right to take their case to court even if their family member is severely injured or killed due to blatant neglect and malpractice. How? Through fine print in the nursing home placement papers that mandates “nursing home arbitration”. No right to a trial to a jury, instead a process that lacks many constitutional safeguards of the civil justice system put in place by the founding fathers of the United States.

What Did We Learn?

A congressional report found that 30 percent of nursing homes in the United States — 5,283 facilities — were cited for almost 9,000 instances of abuse over a two-year period. The most common problems included untreated bedsores, inadequate medical care, malnutrition, dehydration, preventable accidents, and inadequate sanitation and hygiene, the report said. To add insult to injury, more nursing home corporations are using mandatory arbitration clauses as a way to avoid transparency and accountability for their negligence. Inserted in the fine print of lengthy admission documents, many families are stunned and unaware they signed away their constitutional rights to trial by jury until something tragic happens, and then it’s too late.

Nursing homes receive more than $75 billion from government programs like Medicare and Medicaid. When residents in these programs are injured as a result of neglect or sub-standard medical care, and nursing homes ultimately pay for the harms and losses, Medicare and Medicaid end up covering any additional medical costs of the resulting treatments. Its a vicious cycle and that is why requiring accountability and attention to patient health and safety must be the paramount goal of the civil justice system vis-à-vis nursing home care. Perhaps the U.S. Supreme Court will address the inequities in not only nursing home “mandatory arbitration” admission agreements, but in mandatory arbitration clauses creeping into nearly every consumer credit card, banking, and other financial agreement.

 

SCNow had another editorial article about the horrendous odors emitted from Lee County Landfill.

Consequently, it’s easy to see the point of the plaintiffs in the Lee County Landfill lawsuit, which returned to court this week for a few necessary clarifications, prior to an appeal. The plaintiffs in question, three couples, purchased lands and built homes long before the giant dump off Interstate 20 began accepting waste in 1994. Time passed and a huge pile of trash – some locals refer to the man-made feature as “Mt. Lee” – arose from the plain outside of Bishopville. Then it got hot and the trash, as trash is wont to do, began to emit a powerful odor. Motorists who regularly ply the I-20 stretch between Florence and Columbia can commiserate. It’s more common than not to catch a whiff of freshly minted landfill fumes when passing by the Highway 15-501 exit.”

Part of the issue in Lee County is that the landfill far exceeds the needs of tiny Lee. Most of the trash that goes into the Lee County landfill is from outside the county, much of it from outside the state. Some of it is from far outside the state – New York City. There’s something that’s just a little galling about those Yankees using a part of our state as a trash can.”

The State newspaper also had an article which reported the following:

“Six neighbors of the Lee County landfill won a stunning $2.3 million court verdict last year, when a federal jury agreed that powerful odors from the dump had escaped the site and affected nearby residents.”

“The case is considered unusual because odor lawsuits don’t typically go to trial for a verdict, but instead are settled, attorneys said.”

“But Gary Poliakoff, an attorney for the landfill’s neighbors, called those arguments “ludicrous,’’ saying the 2012 court decision is a strong lesson to industries to control odors that might affect nearby residents.  During last year’s trial in U.S. District Court in Columbia, landfill neighbors said the smells were so strong and nauseating that they sometimes could not have outdoor cookouts or garden in their yards. In one instance, neighbors who went outside to view a colorful rainbow fled back into the house because of the landfill’s stench, according to testimony. One resident likened the landfill to a “monster’’ that haunted the neighborhood.”

“Poliakoff said if the $2.3 million court award is overturned, people would not be able to collect more than token damages from industries, no matter how strong the odors are.“The U.S. Chamber always wants to express concern when it thinks some huge corporation is going to be hurt,’’ Poliakoff said Monday. “But the effect of these landfills, especially the one in Lee County, is they kill local business. They kill property values for people who live around them. They create economic dead zones.’’

“Republic Services, one of the nation’s largest garbage corporations, is the parent company of a local firm that owns the Lee County landfill. The mega dump, along Interstate 20 near Bishopville east of Columbia, is permitted to take more waste than any other dump in the state, much of it from other states. It is a destination for trash from states as far away as New Jersey and New York, which ship rail cars of rotting garbage to the 140-foot tall disposal site.”

“Poliakoff and other critics of the Lee County landfill say it is symbolic of South Carolina’s long legacy of catering to the waste industry. As nuclear and radioactive dumps have scaled back operations, the household garbage industry still is keenly interested in expanding in South Carolina, he said. At the same time, officials in New Jersey have expressed interest in shipping lightly radioactive soil to the Lee County landfill for disposal.”

 

SCNow had an article discussing the well-known nuisance at Lee County Landfill owned by Republic Services headquartered in Arizona.  The South Carolina Supreme Court will hear arguments on a suit against the Lee County Landfill.  The jury found the landfill was operating as a nuisance and awarded punitive damages.   The residents are concerned about ridding “their property and their lives of the putrid smells emanating from the nearby landfill.”  Plaintiffs purchased property in Bishopville within a two-mile radius of the dump before it began accepting waste in 1994.

“Last March a federal jury awarded three Lee County couples a total of $2.3 million in damages after their attorney argued that the strong odors from the dump located off of Interstate 20 were lessening their quality of life, disrupting tranquility and damaging their property values.”

“During post-trial motions, the defense asked Federal Court Judge Joseph Anderson to throw out the award, arguing that nuisance law should not cover the $1.8 million of putative damages, only the actual damages that reflect decreased property value.”

However the plaintiffs’ attorney, Gary Poliakoff, said plenty of nuisance case law indicates the landfill is responsible for more than just damages to physical property, and that’s what he plans to tell the justices in oral arguments Tuesday.”

We rely on numerous nuisance cases from the state of South Carolina from the past century which talk about the types of damages that can be awarded for nuisance and those types of damages include loss of quality of life, annoyance, inconvenience and interference with mental tranquility,” Poliakoff said. “All of those are from South Carolina Supreme Court cases for decades. The defense wants to undo those prior cases and say that damages should be limited to loss rental value, which we believe would be an absurd outcome.”

“Poliakoff and his clients maintain the Lee County Landfill has been a “horrendous, notorious landfill with terrible odors emanating for miles out for years.””

Motorists driving the 70-mile stretch of I-20 between Florence and Columbia can certainly attest to that. Odors emanating from the area of the dump are noticeable almost every day.

Poliakoff said his clients hope the dump is closed outright by a court order, or alternatively, that the court will order the waste management company to comply with a list or regulations. Some of those controls on the landfill include an overall limit to the amount of waste accepted annually, limits on the types of waste accepted – such as human sewage sludge from more than 550 miles away that causes particularly strong odors – and additional gas wells and partial capping of some areas.

Meanwhile, the national waste industry lobbyists have filed amicus briefs attempting to influence the Supreme Court’s decision on a South Carolina issue. Waste360 reported that several waste and recycling associations filed a brief with the South Carolina Supreme Court attempting to overturn the federal jury verdict.  “Combining on the amicus brief filed in support of the Lee County Landfill was the South Carolina chapter of the National Solid Wastes Management Association (NSWMA), the Solid Waste Association of North America (SWANA), the Institute of Scrap Recycling Industries (ISRI) and the American Forest & Paper Association (AF&PA).”   See article at Waste & Recycling News

Fits News reported an interesting twist.  The article begins with an explanation how human sewage sludge waste leaves Staten Island, New York and weeks later ends up in the Lee County landfill home to a massive 150-foot tall landfill which receives all of this feces. “The waste has been rotting and stinking in the sun for two weeks by the time it gets to the landfill,” one of the facilities’ operators stated during a recent court case.”  Fits News goes on to explain legislation currently pending before the South Carolina Senate which would limit their ability to refuse such shipments. In fact the legislation – S. 203 – would enjoin municipalities from passing any ordinance which blocks the feces.

Former S.C. Lt. Governor Bob Peeler supports the legislation on behalf og the waste industry. One of the primary sponsors is Senate Majority Leader Harvey Peeler (R-Cherokee) – who is Bob Peeler’s brother.   In fact Peeler’s Medical Affairs Committee will determine whether the legislation makes its way to the floor of the S.C. Senate for a vote.

That’s our beef with this legislation. Stripping local governments of their right to object to these facilities – or at the very least limit the amount of toxic human waste they accept – strikes us as a crass usurpation of individual liberty and of home rule. Also, the fact the waste industry is using Bob Peeler’s family connection to shove this legislation through the Senate is downright shameful – and typical of the corruption we’ve come to expect from state government in South Carolina.”

 

 

The website Change of Address created a list of the Top 40 Nursing Home blogs for Families.  We are proud to announce that SCNursingHomeLaw.com was ranked #12.  Please check out the website.

Below is the list of the Top 40 nursing home blogs:

1. Illinois Nursing Home Abuse Blog
http://blog.levinperconti.com/
This is an incredibly informational blog and the information is not specific to Illinois. You can stay on top of lawsuits involving nursing home care and much more with this blog which is updated daily with very relevant and professional articles.

2. Nursing Home Administrator
http://nursinghomeguy.blogspot.com/
This is a really informal and interesting blog that sees nursing homes from the eyes of an administrator including some deep articles centered around dealing with the inevitability of dying.

3. Nursing Home Administrator
http://nursinghomeadministrator.wordpress.com/
This is a similar blog that was really active in 2008 and 2009, but contains some well written and good articles for families.

4. Nursing Home Talk
http://www.nursinghometalk.com/
This is a great blog for keeping track of what is happening in the industry from passing NHA exams to prescription drug cost assistance. This blogger is a licensed home nursing administrator.

5. Setting the Nursing Home on Fire
http://settingthenursinghomeonfire.blogspot.com/
Okay, don’t get the wrong idea… This blogger is trying to inspire future and current nursing home administrators to innovate inside their nursing homes (this has nothing to do with matches).

6. Nursing Homes Abuse Blog
http://www.nursinghomesabuseblog.com/
If you bookmark one blog from this list, make sure it is this one if you want to stay on top of all news surrounding nursing home abuse. This blog is always kept current and full of real world examples that drive the point home regarding the need for oversight in our nursing homes.

7. Legal Medicine
http://legalmedicine.blogspot.com/
The blog offers discussion on topics about medical malpractice and nursing home abuse cases in a legal, but easy to understand way. One recent article title was “Let’s Put the Elderly in Jail”, see what inspired that title when you get a chance.

8. Nursing Home and Hospital Surveyor
http://nursinghomesurveyor.com/
Here you can learn practical things like what you need to do before meeting with a lawyer about nursing home care issues or abuse.

9. The Happy Hospitalist
http://thehappyhospitalist.blogspot.com/
This is a very active medical blog that tackles nursing home related care issues from the hospital’s perspective (daily informative articles are available).

10. Hospice and Nursing Homes
http://hospiceandnursinghomes.blogspot.com/
This blog is managed by a writer and hospice volunteer. Most of her topics talk about news and insights related to elderly care, nursing homes, and other health and death-related matters which are covered in articles, videos and interesting images.

11. My Better Nursing Home
http://mybetternursinghome.blogspot.com/
This is a really interesting blog that tackles issues like substance abuse inside of nursing homes which is not something that people think about every day, but given the number of prescriptions it makes complete sense.

12. South Carolina Nursing Home Blog
https://www.scnursinghomelaw.com/
Another very useful and well written legal block focused on various type of cases involving abuse in nursing homes. Again, not specific to just South Carolina.

13. The Guardian Blog
http://www.theguardianblog.com/
This blog discusses the rise in the number of nursing home abuse cases and addresses concerns around needing to prepare for a much larger number of aging baby boomers.

14. Nursing Home Blog
http://nursing-home-blog.com/
So many sad stories, but all of them are important for people looking to avoid running into similar issues. It’s really important to learn from what has happened to others while living in nursing homes.

15. Pennsylvania Nursing Home Abuse Attorney Blog
http://www.pennsylvanianursinghomeabuseattorneyblog.com/
Here we have a legal blog that is written by a group of attorneys in Pennsylvania but covers cases of abuse from all over the country.

16. Elder Care at Home
http://alzheimerscareathome.com/
This blog focuses on Alzheimer’s disease as well as the efforts to take care of our elders at home and the daily challenges that families face when they embark on that journey.

17. Care Crunch
http://www.carecrunch.com/blog/
Wow! This blog is interesting because it talks about ways to keep the elderly active by exercising and other techniques depending upon the condition of the patients.

18. Aging Home Health Care
http://www.aginghomehealthcare.com/index.html
If you are committed to home health care but thinking about a nursing home you may find some assistance through the articles, news, and links on this blog.

19. Home Care Law Blog
http://www.homecarelawblog.com/
This is a blog discussing the legal and policy issues in the home health care, private duty, and hospice industries, from a well established law firm.

20. South Carolina Nursing Home Lawyer
http://www.southcarolinanursinghomelawyerblog.com/
This is a legal blog as well but they have articles that also focus on helping people choose the right nursing home for their loved one and more items like that which extend beyond legal analysis.

21. New York Nursing Home Abuse Lawyer Blog
http://www.newyorknursinghomeabuselawyerblog.com/
-know the latest legal nursing home issues inside the state of New York from this blog.

22. Kentucky Injury law Blog
http://www.kentuckyinjurylawblog.com/nursing_home_abuse/
This legal blog is not quite as current but it does have some interesting cases and insights that could be really helpful.

23. Legal Nurse Consultant Tom
http://legalnurseconsultanttom.com/?page_id=8
This is blog comes to us from a legal nurse’s perspective. I really like the way the writer approaches this blog as you really get a lot of good information on patient safety in nursing homes.

24. Nursing Homes Elderly
http://nursinghomeselderly.com/
This one is a bit older (where did our writer go?). However, it is still very useful for a look at what others have been through in pretty much every State (lots of articles on this blog).

25. GNCS Health Care
http://gncshealthcare.blogspot.com/
This blog covers various types of training that are available for elderly care be it at home, hospice, or in a nursing home.

26. Code Blog
http://www.codeblog.com/
This nurse is a great writer (plain, well written articles) and includes a lot of real world stories that really bring up great points regarding care for the elderly.

27. Medskul.com http://www.medskul.com/forum/showthread.php?t=174
Let’s branch out and recognize that nursing home care and elderly care is a World-wide issue. This is a blog from the Philippines that covers relevant current events in that country.

28. Advisor Med
http://www.advisormedblog.com/
This blog contains the latest buzz in healthcare including nursing homes and various illnesses. There are some really sad stories in there as well, but important to note.

29. Blog of the Nation
http://www.npr.org/blogs/talk/2009/03/building_a_better_nursing_home.html
This is an excellent article about building a better nursing home… Find out what the author is thinking.

30. Minnesota Nursing Home and Neglect Attorney
http://www.mnnursinghomeneglect.com/blog
This blog focuses on nursing home neglect as well as other nursing care related issues. Neglect in general though is very common so something that every family should be aware of.

31. Guide to Nursing Homes
http://www.guidetonursinghomes.com/index.html
This is a bit of a commercial site but it is really helpful for those that are trying to find a nursing home (they have a great database of nursing homes). However, they also have some great articles covering various aspects of nursing home selection criteria.

32. Elderly Work
http://www.elderlywork.com/2010/09/how-to-select-a-nursing-home-or-an-assisted-living-home/
This is a straight-forward article on how to choose the right nursing home for your loved one.

33. Hybrid Jungle
http://www.hybridjungle.net/2010/09/24/nursing-home-care/
This blog actually covers a wide array of topics but includes a quick writeup about nursing home care.

34. Senior Home Care Association
http://www.seniorhomecareinformation.com/
This blog covers all kinds of illness that are common to the elderly along with some different ways to deal with each of them whether your loved one is in a nursing home or assisted living facility or not.

35. LawMed.Com
http://www.lawmed.com/nursinghome/
There are some inspiring articles about patients living to be 103 as well as some truly frightening stories on this blog. It’s really well written and very active, I highly recommend this one!

36. California Nursing Home Abuse Lawyer Blog
http://www.nursinghomeabuselawyerblog.com/
Find out all of the latest court cases involving nursing cares in the State of California (and around the country). This is sponsored by another really dedicated law firm.

37. Hashemian Blog
http://www.hashemian.com/blog/2006/07/nursing-home-and-aging.htm
This article touches on some of the challenges of deciding when a person belongs in a nursing home or assisted living center.

38. Health is the greatest wealth
http://www.news-healthy.com/?p=320
This talks about how nursing homes SHOULD help extend the health and lives of our loved ones (a.k.a. elderly).

39. Hospice Blog
http://www.hospiceblog.org/2006/04/hospices-nursing-homes-and-risk.html
-This is an older but great article about risk management for hospices and nursing homes.

40. Chicago Nursing Home Abuse Lawyer
http://www.chicagonursinghomeabuselawyerblog.com/
Finally, we finish off with a very current and well-maintained legal blog from some attorneys in Chicago. Lots of videos and good information on nursing home related court cases and what to do if you find yourself in need of an attorney to address nursing home abuse or neglect
 

I am honored to be a speaker at the upcoming nursing home seminar for National Business Institute.  Here is a pamphlet explaining who will be speakers and what topics will be discussed. I personally know most of the speakers and look forward to hearing from them all.

I strongly encourage anyone who litigates or is thinking of litigating nursing home cases to register for the seminar and participate in this discussion.

The Nursing Home Complaint Center is pleased to add Poliakoff & Associates as its exclusive nursing home abuse law firm for South Carolina. According to the group,"Gary Poliakoff is an AV rate law firm in South Carolina specializing in nursing home abuse, and consumer protection. The intent of the Nursing Home Complaint Center is to educate the nation about nursing home abuse, neglect and even wrongful death." The Nursing Home Complaint Center says, "by having firms like Poliakoff & Associates, we can educate the country about nursing home abuses, and we can the direct family or loved ones to legal resources in their state, or metro area, who may be able to help protect innocent patients from abuse, & even potential wrongful death." Poliakoff & Associates web site is located at here.

The Nursing Home Complaint Center is announcing its endorsement of Poliakoff & Associates, as a go to legal resource for nursing home negligence, and abuse in South Carolina.  According to the Group, "in addition to educating our nation about important nursing home issues, we think it important to have capable law firms in each US State, or top 100 metro areas to assist nursing home abuse victims, and their families with a legal assessment of their rights. Gary Poliakoff, and his team at Poliakoff & Associates of South Carolina, will help us achieve this goal."

 

Gary Poliakoff is an AV rate law firm in South Carolina specializing in nursing home abuse, and consumer protection.  A little about Poliakoff & Associates of South Carolina: AV® rated by Martindale-Hubbell® as attorneys-awarded the highest ratings available in both competence and ethics. The law offices of Poliakoff & Associates are committed to working intensely and with integrity to fully represent clients personally injured or harmed by toxic exposure, defective products,nursing home abuse or neglect, or damaged by fraud and unfair or deceptive trade practices. They accept the toughest individual litigation and class action cases. Among the firm’s achievements are: Trial Advocacy, and is the recipient of the following professional awards:

Senior partner Gary W. Poliakoff is Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy, and is the recipient of the following professional awards:

Listed in The Best Lawyers in America
Listed in South Carolina Super Lawyers
Public Citizen Award (S.C. Trial Lawyers Assn.)
Victims Voice Award (S.C. Jury Trial Foundation)
Pro Bono Lawyer of the Year (S.C. Bar Assn.)
American Jurisprudence Award For Excellence in Constitutional Law
 

For more information victims, or family members of nursing home abuse, or neglect can call Poliakoff & Associates at 864-582-5472, or contact via their web site.
 

 

Trial Judge Denies Defendant’s Post-Trial Motions, Upholds Jury Verdict for Plaintiff in
Fall/Injury Case (Hawkins v. SSC Hendersonville Operating Company, LLC, d/b/a
The Brian Center Health and Rehabilitation)

On February 21, 2008 the trial Judge (the Honorable Judge Dennis Winner)  DENIED all of Defendant’s post-trial Motions in the fall/injury case, leaving intact the jury verdict of $800,000 ($200,000 in actual damages, $600,000 in punitive damages).

The case was tried in Superior Court in Hendersonville, North Carolina from November 6-16, 2007. Plaintiff proved that the Defendant failed to provide the reasonable and necessary care to prevent decedent, Neal Hawkins, from falling on three separate occasions in one day when it was documented he was a significant fall risk, and was suffering from a significant change in his condition.  Defendant failed to care plan or intervene for the known risk.

On February 11, 2006 Mr. Hawkins fell three times in a single day,  fracturing his hip on the last fall. The facility did not discovery the severe fracture for seven (7) more days. Mr. Hawkins underwent hip surgery. Five (5) weeks later he died of pneumonia. After nearly two (2) weeks of trial, the jury returned a verdict of $200,000 actual damages, plus $600,000 in punitive damages.

Defendant filed post-trial Motions on various alleged issues, seeking to eliminate the punitive damages award, challenging Plaintiff’s expert opinions regarding North Carolina’s "community standards" rule, and objecting to the Judge’s jury instructions. The trial Judge received Memoranda from both parties, heard oral arguments, and has entirely DENIED all of Defendant’s post-trial Motions. Defendant has indicated that they may appeal.

After a 2 week trial in Hendersonville, North Carolina, the jury awarded $800,000.00 to the Plaintiff. Plaintiff was represented by Poliakoff & Associates of Spartanburg, South Carolina. The jury award was $200,000.00 for personal injury suffered by the decedent while a resident at Brian Center – Hendersonville, and $600,000.00 in punitive damages. The Brian Center – Hendersonville is a nursing home owned by SSC Hendersonville Operating Company, LLC which is a subsidiary of  SavaSeniorCare. The Defendant denied all liability, and vigorously defended the entire suit.

 

The Plaintiff argued that the decedent, Neal Hawkins, Jr., was identified by the Brian Center as being high risk for falls, but that the facility did little to address this problem in the care plan for the resident, and failed to revise the care plan on occasions when changes in his condition compelled such. Further, on February 11, 2005, Mr. Hawkins fell 3 times in one day at the facility, apparently fracturing his hip on the 3rd fall. Plaintiff further argued that the nursing facility failed to properly assess the patient, failed to follow procedures, failed to follow doctor’s orders, and allowed Mr. Hawkins to remain in the facility in pain for 7 days following the fracture, until he was finally transferred to the hospital.

 

The Defendant denied that it was liable or responsible for the falls or any resulting injury, and argued that it followed appropriate procedures. On November 16, 2007, the jury awarded a total of $800,000.00 in actual and punitive damages.

 

Plaintiff’s experts were Dr. Jonathan Klein of Falls Church, Virginia; Janet White of Emporia, Virginia; and Katherine Johnson, of Orlando, Florida. The case was tried for the Plaintiff by lead counsel Gary W. Poliakoff, Raymond P. Mullman, Jr., and Lara Pettiss Harrill. Also participating were attorney Matt Yelverton and attorney Greg Newman, both of Hendersonville, North Carolina.

 

As of the time of writing of this entry, the Defendant has indicated a possibility of appeal.