A West Virginia nursing home may soon be changing hands. Heartland of Charleston is in the process of being sold from HCR Manorcare to Stonerise Healthcare, backed by Chesterfield Company LLC. Stonerise is privately owned and controls four nursing and rehabilitation centers in West Virginia already.

The sale of the home comes at the end of a lengthy legal battle, wherein a wrongful death suit for Dorothy Douglas resulted in a $90 million ruling against the home. Another suit for Carolyn J. Geouge has been settled under confidential terms. Douglas died of dehydration complications as a result of the home’s negligence, and Geouge’s family accused the home of failure to prevent pressure sores and infections, and failure to assess changes in her physical and mental status. $80 million of the ruling comes from punitive damages, or damages designed to change the home’s behavior.
See articles at West Virginia Record and The State Journal.

The Miami Herald also had an article on the new tort reform measures in Florida.  “Despite the emotional testimony from the families of nursing home patients who suffered abuses, the bill cleared its last stop on Monday — with a 12-3 vote by the Senate Rules Committee — and is headed to the Senate floor.”
Ken Thurston and his sister, Sandra Banning, who have been speaking out against this legislation, told committee members their mother, Virginia, was raped in 2002 at a Jacksonville nursing home by another resident with a history of sexual assaults. The siblings never collected a $750,000 verdict from the owner of the Glenwood Nursing Center (then called Southwood), which was later shut down.  Thurston asked the panel: “Who benefits from this legislation? To put it another way, whose rights are being subordinated and whose are being protected by this bill?”

AARP Florida advocacy manager Jack McRay calls the bill “unnecessary and unconscionable.”
“It’s already exceedingly difficult to get punitive damages in a case,” he said.. Making it even harder to sue for punitive damages “eliminates the deterrent factor for future behavior.”
Since 2001, the state has required that half the funds from punitive damage cases against nursing homes be placed in a trust fund — and that has yet to happen, according to the Agency for Health Care Administration.

The Tampa Tribune reported on the new Florida tort reform measures that protect corporate owners and operators of nursing homes for neglect and abuse.  It requires the victims to show "conclusive evidence" of abuse before proceeding with a claim for punitive damages, raising the legal requirement that traditionally exists. Under current law, parties seeking punitive damages must make a “reasonable showing” of the evidence supporting their claim before being allowed to proceed. The bill accelerates the process for parties seeking punitive damages by forcing them to provide “clear and convincing” evidence before being allowed to pursue a claim for punitive damages.

The bill would make it more difficult for families to get their full measure of justice when abuse occurs.  Families also would face a higher standard before proceeding with a punitive claim.  Under the bill being proposed, only nursing home owners found to have “actively and knowingly participated in intentional misconduct” would be liable for punitive damages. That would reward an owner’s ignorance of their own operations. 

"Unlike compensatory damages, which calculate the loss and expense suffered by victims, punitive damages are meant to punish reprehensible conduct and to deter its reoccurrence."

"When the elderly are abused, and families seek compensatory damages from those responsible, the judgments can be limited by the victim’s incapacitation. Punitive damages are the clear and imminent threat that gets the attention of the nursing home operators and owners."

 

 

The West Virginia Gazette reported the Court has denied a new trial in an elderly neglect case that resulted in a $91.5 million jury verdict against Heartland of Charleston nursing home’s billion-dollar parent company.  The Court found that the damage award was appropriately scaled to punish Heartland’s corporate owner, HCR Manor Care, for what the judge called a history of intentionally short-staffing nursing homes to maximize profit.  The Court found that short staffing issues arose as the company sought to keep margins high by hiring as few nurses’ aides as possible. Tax forms presented at trial listed more than $4 billion in revenue in 2009, including $75 million in outright profit.

One nursing care staffer, Tara Boweles, testified during the trial that conditions in the home were “horrible,” saying: “I wouldn’t put my dog there.” She said patients sometimes would lay in their own urine and feces for hours. Staff supervisor Beverly Crawford testified that employees feared getting fired for reporting patient neglect.

Tom Douglas sued Heartland because his 87-year-old mother died of dehydration complications that stemmed from her 19-day stay at the facility in 2009.  The elderly woman suffered head trauma from several falls and was eventually confined to a wheelchair. Experts said during the trial that staffers at the nursing home also failed to provide the woman with basic needs, like food and water, which had been a contributing factor in her death.  She formed sores in her mouth that generated dead tissue that doctors had to scrape away with a scalpel.

It is our hope that this will set an example,” Douglas’ lawyer, Mike Fuller, said of the $90 million verdict. “The community of West Virginia will not accept nursing home residents having to die from dehydration because of a corporation’s failure to provide even a cup of water.”

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The Tennessee Supreme Court reinstated a jury verdict for compensatory damages against Americare Systems, Inc., the management company of Celebration Way, an assisted living facility in Shelbyville. The Supreme Court remanded the jury verdict for punitive damages to the Court of Appeals for further review. A jury returned a verdict against various defendants, including Americare, totaling $300,000 in compensatory damages, and $5,015,000 in punitive damages, in favor of the daughters of Mable Farrar. Farrar died as a result of the failure of Celebration Way’s nursing staff to give Farrar her prescribed medicine and the negligent administration of an enema that caused her colon to rupture.

In 2003, Farrar, age 83 and in good health other than occasional constipation, resided at Celebration Way. The nursing staff was under doctor’s orders to give Farrar one dose of MiraLAX, an over-the-counter laxative, each morning, but frequently failed to give her the medicine over a number of months. After Celebration Way’s failure to give her any prescribed MiraLAX in March 2004, and only five doses in April, Farrar became seriously constipated. Her doctor prescribed enemas, which the facility’s staff failed to administer as directed. On May 29, 2004, the nursing staff gave Farrar an enema without first checking her abdomen. The enema caused Ferrar’s colon to rupture and she died shortly thereafter.

Farrar’s daughters sued, alleging that Americare’s failure to adequately staff Celebration Way caused or contributed to her death. The jury agreed and returned a verdict in the plaintiffs’ favor. The Court of Appeals reversed the judgment against Americare, ruling that there was no evidence that understaffing caused Farrar’s death. The Tennessee Supreme Court, in a unanimous opinion authored by Justice Sharon G. Lee, ruled that the plaintiffs presented material evidence supporting the jury’s finding that Celebration Way was understaffed, that Americare knew it and failed to remedy it, and that the lack of sufficient staff was a substantial factor causing Farrar’s death. The Supreme Court reinstated the jury verdict against Americare for compensatory damages but remanded the case to the Court of Appeals to review the punitive damages award.

Joe Chapman posted a great article from Scott Cooper in the Legal Examiner about recent tort reform attempts in Pennsylvania.

“In Pennsylvania there is a move to cut punitive damages in cases where abused residents try to fight back against the greed of nursing home companies. An article appeared in the Pittsburgh Post Gazette, and here is the Answer from Schmidt Kramer’s own Scott Cooper, who is serving as the President of the Pennsylvania Association for Justice (Pa. Trial Lawyers).

 

Letter to the Editor of the Pittsburgh Post Gazette Damage limits worrisome
In the article “Nursing Homes’ Bid for Law to Limit Punitive Damages Stalls in Harrisburg,” July 3, representatives of the nursing home industry seriously misstate the facts about lawsuits filed against them in an effort to lessen legal protections for the seniors and vulnerable entrusted to their care.

Although they are rarely awarded under current law, it is the threat of punitive damages that helps increase safety in every industry, including in nursing homes and long-term care facilities. Making the legislation worse, the Pennsylvania House stripped from the bill a provision that would have at least allowed punitive damages if there were evidence of illegality — including inadequate staffing, training and oversight.

As it is, too many for-profit nursing homes place their profits ahead of safety. Passage of limits on punitive damages would give them virtual immunity from being held responsible for that decision.

 

NBC’s TMJ4 reported the jury verdict for a woman who choked to death at a nursing home.  This preventable neglect occurs more often than it should because of understaffing, poor supervision and poor training.  The jury compensated the family $1.5 million for the 56 year old’s death.  The verdict included compensation for medical bills and funeral expenses, pain and suffering, loss of society and companionship and $775,000 in punitive damages, totaling $1.5 million.

She had a history of difficulty in swallowing.  Evidence showed that bad weather in February of 2009 had prevented all but one caregiver from arriving at work. The caregiver on that day did not puree Vicky’s food and she choked, suffering brain damage and passed away a week later.

 

 

An uninsured skilled nursing home operator was found liable yesterday of abusing an elderly resident. After the jury returned a verdict that would have led to a $1.5 million liability and an expected punitive damage verdict in the range of $20 million soon to follow, Erwin Cablayan, shareholder of San Marino Manor, Inc., cavalierly advised the trial court that San Marino Manor had filed bankruptcy.

Cablayan and his legal defense team of lawyers attempted to stave off litigation by informing the Plaintiff that the nursing home operated without insurance.  Most nursing home do not carry insurance or it is a wasting policy that goes to defend the owners but not to pay verdicts for abuse and neglect. 

"We have been tracking for about three to four months how they began transferring assets to a shell corporation, which put Erwin Cablayan’s son Kevin Cablayan ostensibly in charge,"  attorney Garcia said. "As if they had not already abused Mrs. Angelo enough, now they are going to try to defraud their way out of responsibility for abusing elders."

Garcia continues, "I’ve known since Day One that the Cablayans, as shareholders of Coordinated Care, would refuse to pay any verdict. They seemed to believe that this would cause us to dismiss the case and allow them to go on their merry way. They were wrong. The jury very clearly confirmed the abuse of our client Mrs. Angelo. And, quite candidly, we will not rest until justice is obtained for Mrs. Angelo and abusive corporations, such as San Marino Manor, with indifferent shareholders, such as the Cablayans, are put out of business."

Reyes C. Angelo vs. Coordinated Care Center, Inc. dba San Marino Manor and DOES 1 through 250, inclusive (Case No. 6C038713) was heard in Superior Court of the State of California, Northeast Division.

Angelo’s death on March 16, 2006, was referred by an investigator to the Los Angeles County Coroner’s office as a suspicious death. The coroner found her death to be caused by infection of accumulated pressure sores.  Laboratory results indicating malnutrition and dehydration were also never revealed to the family.
After admission, Angelo had developed more than 10 pressure sores on her toes, hips, lower buttocks, inner thighs, inner buttocks, and coccyx, with more than half of them Stage IV pressure sores. Many of the sores became black and necrotic, and later were found to be infected with MRSA.  The pressure sores were in places easily hidden from the family by bandages and clothing. It was not until Jan. 20, 2006, when Angelo’s daughter found Angelo sitting in a wheelchair over a puddle of urine and in a urine-soaked diaper with fecal matter with her bandages saturated, that the family realized Angelo’s medical condition.

At the family’s insistence, Angelo was transferred on Jan. 21, 2006 to the hospital. A staff person rode with Angelo, bringing her medical records with her. Upon returning to San Marino Manor, Angelo’s medical records were rewritten and adapted to cover the lack of care Angelo had received.  For example, the records that went to the hospital demonstrated that Angelo did not receive numerous doses of diabetic insulin she was prescribed. In the nursing home’s copy of medical records, all of the doses were filled in.

The admitting doctor at the hospital noted Angelo’s condition, including extensive pressure sores, many of which were infected and black and necrotic, and that they indicated that she had been left to lie on her side for long periods of time. He also noted that Angelo was suffering from diarrhea, vomiting, and malnutrition.

Coordinated Care Company, Inc., the parent company of San Marino Manor, is headquartered in San Diego, Calif. It is owned by Erwin Cablayan, who also owns the Bradley Gardens in San Jacinto in Riverside; Senior Day Centre of Hemet Valley and Cherry Valley Healthcare Management Center in San Marcos; Bradley Court Convalescent Center in El Cajon; and Tri Care Center, Inc., headquartered in San Diego. In Colorado, Erwin Cablayan also owns Aspen Siesta, also known as Coordinated Health Center.

For more information, contact Stephen Garcia at www.lawgarcia.com or at (800) 281-8515.

 

See article from PR Newswire.

A West Virginia jury has awarded $91.5 million to the family of Dorothy Douglas who died as a result of nursing home neglect at a HCR ManorCare nursing home called  Heartland of Charleston.  Douglas died as a result of malnutrition and dehydration that was preventable. Just a couple of weeks after admission, she suffered kidney failure due to dehydration and malnutrition, caused by neglect and understaffing. 

Nursing home dehydration and malnutrition occur when facilities fail to provide sufficient food and fluid or monitor the intake of residents. Failure of staff to keep adequate records, assess a residents dietary needs or understand that nutritional needs of residents can lead to severe and life-threatening nursing home injuries.

Following trial, the jury deliberated just two hours before finding the facility and its corporate owners guilty of negligence, and awarded Douglas $11.5 million in compensatory damages and $80 million in punitive damages.

There are more than 500 HCR ManorCare Inc. (Manor Care) nursing homes owned by parent company The Carlyle Group in 32 states throughout the country. nursing home subsidiary,

Mike Fuller, a partner in McHugh Fuller, whose lawyers tried the case, said they won a $1.5 million verdict for compensatory damages in a similar HCR lawsuit last year targeting the same Charleston facility. The case settled for a confidential amount before the jury decided how much to award, if anything, in punitive damages.

 See articles at Bloomberg News and AboutLawsuits.com.

Moultrie News published a letter from attorney A. Elliot Barrow about the misinformation and outright lies used to pass "tort reform" in South Carolina.  See article below.

Recently two of our state legislators published a public letter. Of interest was a lengthy discussion of so-called lawsuit abuse and how such alleged abuse injures existing businesses and prevents new businesses from coming to South Carolina.  Even more recently our Governor
has publicly stated that so-called tort reform, which is intended to limit the rights of wronged citizens to recover punitive damages, is high on her legislative agenda. She maintains that her
agenda is necessary to lure businesses to South Carolina.

Unfortunately, data do not support these fear mongering scare tactics employed by lobbyists who badger our elected officials into enacting legislation that hurts our citizens. Businesses from far and wide come to our state, and have been coming to our state for years; these companies aren’t masochistic, they don’t come here to face off against lawsuit abuse.

Lawsuit abuse is a complete fiction.  Let’s look the last twelve months for proof. 

Mankiewicz Coatings, a German industrial firm, just cut the ribbon on a $2 million relocation to the Charleston area; Michelin just broke ground on a $200 million expansion of an existing facility in Lexington that will add at least 270 jobs; SPAWAR recently broke ground on a $9.5 million tech lab in the Charleston area; Verizon is in the process of adding 500 jobs to its call center in Elgin; an
auto transmission plant which will employ at least 900 people recently broke ground in Laurens County; a South Carolina company recently joined hands with another group to purchase 7390 acres near the coast for development; an out of state company recently opened a grain handling
operation at the Wando terminal; an out of state solar company is planning to invest more than $300 million in a midlands manufacturing plant that will hire 1000 people over the next
few years; a Chinese candy maker is building a $6 million factory in Sumter which will employ at least 120; a New Orleans based defense contractor and information tech company is planning to open a facility in North Charleston, a $2 million investment that will generate at least 100 jobs;
a North Carolina company plans to open a sock packaging facility in North Charleston which will employ over 20 workers; a Washington based distribution company recently purchased a 351,000 square foot industrial building on Clements Ferry Road and will employ 30-50 people; Amazon
is opening a distribution center in Lexington County which will bring at least 1000 jobs to the area; Bosch plans to invest $125 million in its equipment and will add an additional 300 employees over the next few years; a North Charleston chemical business is expanding its business, investing $2 million, and will add additional jobs; a new $50 million wood waste burning plant which will produce biomass fuel is slated for construction in Dorchester County and will
bring at least 20 new jobs; AFLAC is building its insurance business in the Columbia area, investing $100 million and adding at least 100 local jobs; a California plastics firm is investing $2
million in the upstate, adding at least 39 new jobs to its production facility; a Korean company has indicated it will spend $21 million to begin assembling electric cars in the upstate, bringing at
least 400 new jobs; a major player in trucking along the south Atlantic has opened a Mount Pleasant office, adding 50 trucks, bringing new ancillary businesses with it; and the list goes
on and on and on.

Even conservative Senator Jim DeMint told Fortune magazine that “South Carolina is one of the best places in the world to do business, and that’s why so many international companies are moving jobs into our state.”

Lawsuit abuse? Total baloney. A need to limit damages for wronged citizens? More baloney.

So, politicians, if you’re going to pass laws that limit the rights of our citizens, that make it difficult if not impossible to get justice, at least tell the truth about why you’re doing so.

Don’t fabricate fictions. Don’t falsely claim lawsuit abuse. Don’t blame trial lawyers and create a false dichotomy of “business v. lawyers.”  Don’t make it sound as if legal fees defending cases are paid by businesses themselves; everybody knows the truth, the legal fees are paid by the insurance companies, the financial giants that hire lobbyists by the thousands to pressure elected officials into enacting laws that benefit them and injure our citizens.

Just tell the truth. Is that too much to ask?

A. Elliott Barrow, Jr.