WISH TV reported the family of a nursing home resident has filed a wrongful death lawsuit against the nursing home after the home failed to show any remorse for the neglect sufered by their loved one.  The lawsuit alleges that Health & Hospital Corporation (HHC) of Marion County and American Senior Communities, LLC (ASC) were negligent in causing the death of Betty Riley.

Riley died from an assault that caused subdural and subarachnoid hematomas.  During the assault, Riley fell causing blunt force trauma to her head.  Family members said they’ve tried to talk to the nursing home to find out from administrators what happened, but leaders there refused to talk with them.

“No sympathy whatsoever towards the family or anything,” said Riley. “That’s what really grabbed us as being pretty difficult to handle. They didn’t want to act like they did anything, but yet, they didn’t want to say sorry or anything.”

“If they would have offered to pay the bills, like [my lawyer] said, she had about $30,000 in hospital bills,” Mark Riley, Betty’s son, said Tuesday. “If they would have shown some kind of consideration towards what happened to my mother that would have made everything a lot better.”

 

 

The National Consumer Voice for Quality Long Term Care wrote a great article on pre-dispute mandatory arbitration agreements in nursing home admission paperwork.

“Arbitration is a legal process in which a dispute is settled by one or more arbitrators who decide the outcome instead of a jury made up of members of the community. “Pre-dispute” arbitration means that the consumer must agree to arbitration before any dispute arises.  Pre-dispute arbitration agreements are increasingly included in nursing home and other long-term care facility admission contracts that consumers or their families must sign in order for the consumer to be admitted as a resident. Once signed, these agreements bar consumers from seeking legal action in court should they suffer harm or injury while residing in the facility.”

Pre-dispute arbitration agreements:
              Place consumers at a disadvantage during the admissions process
— Nursing home admissions are usually unplanned and often happen when individuals and their families are under pressure to enter into facility care as quickly as possible. Pre-dispute arbitration agreements are generally offered on a „take it or leave it‟ basis by facilities. Consumers may be forced into signing an arbitration agreement because “leaving it” and trying to find another place right then and there is not an option.
— Arbitration agreements can often be buried within the fine print of admission contracts and may go unnoticed by many consumers given the huge amount of paperwork that must be signed during the admissions process

Strip consumers of their constitutional right to a trial by jury
— When consumers sign an arbitration agreement, they sign away forever their constitutional
right to a trial by jury. Such a decision should be given careful consideration. However,
individuals and their families are pressured into signing blanket arbitration agreements in
advance, without having any idea what they might be arbitrating and with only the
information the facility chooses to give them about what arbitration is about. No one can
make an informed decision under such circumstances!
Deny consumers the benefits of a court of law
— Unlike judges, arbitrators are private individuals who may be chosen by the nursing home –
not publicly elected or appointed officials.
o In arbitration, residents and families not only have to hire a lawyer, they generally have to pay
a part of the arbitrator‟s fee. This is like paying the judge – which consumers don‟t have to do
in court.
— Arbitration can be very costly and is usually far more expensive than court. As a result,
arbitration may not be possible for many residents and families – leaving them with no legal
recourse.
— The amount awarded to residents and families through arbitration is likely to be less than it
would be in court.
— Consumers typically cannot appeal the arbitrator‟s decision as they can in the court system.

 

I am pleased to copy below Marty Kardon’s Letter to the Editor of the Philadelphia Legal Intelligencer.  I thought it appropriate for the Fourth of July to remember the constitutional right to a jury trial.

Letter: Mandatory Arbitration in Nursing Home Contracts

To the Legal:

I have read Joel Fishbein’s article regarding mandatory arbitration in nursing home contracts appearing in the June 22 edition of The Legal Intelligencer (“Appropriate Jury Trial Limitations Found in Nursing Home Contracts”). The majority of my practice of the past 15 years has been representing families whose loved ones have been harmed while living in long-term care facilities. I feel a few points need to be touched upon in response to his article.

1. Irrespective of the assistance of hospital administrators, Internet resources and visits made in advance, signing a mother, father or spouse into a nursing home is invariably an emotional, stressful and frightening undertaking. In reality there is not even the slightest resemblance between leaving your mother at a nursing home and a “commercial” transaction to obtain a credit card or new car.

2. If it is true that there are many positive aspects to resolving disputes through a mandatory arbitration then there is no reason why such an agreement cannot be made through the advice of counsel once a claim is presented. The contracts at issue here are pre-dispute and always signed without the benefit of legal advice. Anyone who questions an admission director (the one who obtains the signatures to an arbitration agreement) will realize they are not positioned to explain the implications of the agreement.

3. The argument that juries are “guided solely by emotion” is a recurring one often carted out in these discussions. There is, however, a small matter of the Seventh Amendment to the Constitution, which guarantees the right to trial by jury. Wherever the legality of pre-dispute arbitrations may fall to argue that it is inappropriate for a jury to hear a case of nursing home neglect contravenes one of the cornerstones of our country’s jurisprudence. If that’s the core policy argument for these mandatory arbitration “agreements,” then they should be consigned to the dustbin of history.

The best way for a nursing home to protect its bottom line is to provide care consistent with accepted standards of practice. There are many facilities in our state that are nurturing and skilled in caring for the elderly and infirm. For those that do not follow the rules and cause harm there is no better remedy than justice meted out by the members of the community. Mandatory arbitration locks the doors to the courthouse and benefits wrongdoers, not those wronged.

 

Several media outlets have discussed the recent decision of an arbitrator in Massachusetts to dismiss the wrongful death case against Brandon Woods Nursing Home.  Elizabeth W. Barrow was strangled to death in 2009 while a patient there.  Her family filed a wrongful death suit claiming the nursing home and staff didn’t do enough to protect Barrow.  In the hours leading up to his mother’s death, Barrow’s unstable and violent roommate had several violent episodes. The staff here left her in the room with his mother and never disclosed there was a problem. 

For some unknown reason, the arbitrator decided there was no negligence on behalf of the nursing home.  The state’s medical examiner’s office declared the death to be a homicide by manual strangulation, following an autopsy. A nursing assistant found Barrow dead in her bed with a plastic bag over her head.

This case is a great example of why the nursing home industry pushes mandatory arbitration in their admission paperwork.  They do not want a jury of their peers deciding these issues when some biased arbitrator can throw the case out without any recourse or appeal.

Where is the justice?

Kansas City’s KCTV5 reported the lawsuit filed about the alleged crime and cover-up at Brandon Woods at Alvamar.  Predictably, Defendants say there is no merit to the lawsuit, but the allegations in a 32-page court document are detailed and disturbing.  The suit was filed by the family of Jean Allen who was living at Brandon Woods at Alvamar in hospice care with dementia and almost entirely immobile.

The report of a possible sexual assault by a nursing aide was upsetting to the family, but the outrage stems from how the facility responsible for Allen’s care handled that report.

"The lawsuit against the owners and staff says the daughter of Allen’s roommate called the head of nursing on Oct. 21, 2010.  "The telephone message starts out, ‘Something awful may have happened,’" said Skepnek.  Skepnek says the head of nursing, Sharon Mulqueen, did not contact Allen’s family, did not suspend the nursing aide, did not call police and did not send Allen to the hospital. The next day, he says, Mulqueen suspended the aide and sent Allen to Lawrence Memorial Hospital – not for a sexual assault exam, but for a routine Medicare exam."

The nursing home staff refused to file a police report until hospital staff threatened to do so themselves.  In the interim, the nursing home staff had bathed Allen and washed her clothes, destroying whatever DNA evidence might have been available.  As for Allen’s exam, the suit says a specialized sexual assault nurse reported cuts and scrapes that left her with "no doubt" that Allen had been sexually abused.

 

Des Moines Register had an article on a resident to resident assault at Pomeroy Care Center after an 8-year old girl witnessed a female resident in her 90s being sexually assaulted, allegedly by a registered sex offender. The registered offender was ordered to live in Pomeroy Care Center.

The nursing home was well aware of the threat, and should have done something to prevent it and keep the residents safe.  The suspect, William Cubbage, and his roommate have both been convicted of several sex offenses over the years.  Further, State records say that Cubbage had a history of harassing other residents and attempting to go into their rooms uninvited.   After the incident on August 21 the administrator told workers to write the victim’s injuries on notebook paper rather than her medical chart because she questioned whether the assault had taken place. She was quoted as saying "Cubbage likes little girls, not old ladies."

  "Both of the men have a history of pedophilia according to the sex offender registry and court records.  But according to state nursing home inspection reports, the men were allowed to interact with first-graders who visited the Pomeroy Care Center as part of a regular program."  The school district knew of the sex offenders and asked if the men could be confined to their rooms when the children were there but the facility informed them that confinement would violate their rights.  Are you kidding me?

Several employees reported incidents were the children did interact with the men and expressed frustration at not being allowed to say anything.  

The Register identified 27 sex offenders living in 15 of Iowa’s 188 residential care facilities.  Unfortunately, this case is not an uncommon incident and nursing homes must be better trained and staffed to avoid this kind of incident. 

WREG.com out of Memphis, Tn reported  that police are investigating the death of Willie Mayfield, an 89-year-old nursing home resident after a fight with his new roommate death is under investigation.  Mayfield’s daughter, Mary Charm, was called to the Spring Gate Nursing Home around 5 a.m.  Her father had been a patient there for three months, and had just gotten his new roommate over the weekend.   Nursing home workers refused to share details on how the assaut started or why they did not stop it.  Staff were ordered to checking on the two every ten minutes.

Altercations among roommates at nursing homes is a well known problem especially among residents confused with dementia.  Proper training and staffing prevents altercations from growing into assaults that lead to death.

See another article about the assault at The Commercial Appeal.

 

 

Nursing home employee Amanda Tibble pleaded guilty to abusing her patients in Washington County, TN Criminal Court. Tibble pleaded guilty to four counts of willful abuse or neglect of an adult at John M. Reed Nursing Home.  She only admitted guilt to the mental abuse. She took best interest guilty pleas for the two counts of physical abuse of two male patients.  Prosecutors accused Tibble of twisting one man’s hand and bending back another man’s hand.

Meanwhile, lobbyists for the nursing home industry are attempting to manipulate the judicial system in Tennessee to benefit nursing homes guilty of abuse and neglect.  Tennessee is moving toward lighter regulation of nursing homes, fewer state investigations and laws that make it more difficult to bring potentially costly lawsuits against operators.  The legislature placed strict new limits on the rights of nursing home patients and their families to sue nursing homes for poor care. That law also caps the amount a jury can award.  Many nursing homes in Tennessee require patients or their families to sign arbitration agreements waiving their rights to a trial before admission. 

The legislature in 2009 reduced oversight of the 325 nursing homes in the state by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. Also eliminated were requirements that the state investigate those incidents.

The tort reform bill sets a $750,000 cap on pain and suffering claims against a nursing home. A higher $1 million cap applies to limited types of cases. Caps do not apply if intentional misconduct is found. Nor is there any cap on economic damages, such as doctor and hospital bills or lost wages.

Data compiled by the federal Centers for Medicare & Medicaid Services show Tennessee ranks fourth out of 50 from the bottom in the number of hours per patient per day provided by certified nurse assistants. It ranks seventh from the bottom in registered nurse hours per patient per day, according to the CMS data.

According to state health officials, current law and regulations require licensed nursing personnel to provide only 0.4 hours of direct care per patient each day. Professor John F. Schnelle of the Vanderbilt Center for Quality Aging said studies have shown that increasing the hours of nursing care provided to patients can improve quality. Several published studies, including a report from the Institute of Medicine and one co-authored by Schnelle, have found links between staffing levels and the quality of care provided in licensed nursing homes.

Despite protests from advocates for the elderly, the nursing home provisions in the tort reform bill included a key provision that brings all claims against nursing homes under the strict limits of the medical malpractice law, eliminating separate claims for negligence and requiring plaintiffs to provide certification that the care provided did not meet local standards. Punitive damages also are limited to $500,000 or two times the pain and suffering claims. Claims under a protection from abuse also will be blocked. The sponsors of these bills were all recipients of large campaign contributions from nursing home political action committees.  Follow the money.

Tennessee does poorly compared with other states in some key quality measures of nursing homes.  Federal officials have said the state has failed in its regulation of such homes. A report issued this year by the U.S. Government Accountability Office gave the state Health Department failing scores for its performance in investigating serious complaints against nursing homes. It said there was a backlog of cases that had gone uninvestigated, and it cited a staff shortage as a factor.

 

 

See article at The Tennessean

 

Melissa Trenway writes articles for http://bsntomsn.org/, a website dedicated to providing students with the information and tools needed in order to pursue their BSN to MSN.  She wanted us to share her latest article she posted called A Complete Guide to Transferring Your Nursing License to Another State.

 

"Those with a nursing license who wish to move to another state have options available to them. While states differ on what is required of nurses, those who have graduated from an accredited nursing program can find that transferring a license is not as difficult as getting one."

The Mountain Press had an article about the Tennessee Court of Appeals affirming the right to a jury trial for residents and disallowing nursing homes to force residents to arbitrate complaints. 

The appellate court affirmed Judge Rex Ogle’s ruling that Pigeon Forge Care and Rehab couldn’t rely on what the judge called an “unconscionable” process, in which the son signed papers on his mother’s behalf while she was competent. 

Lois Pierce died May 7, 2008, after staying about 20 days at Pigeon Forge Care and Rehab.   After 20 days, she was removed from the facility and taken to an emergency room for treatment of “massive infected Stage IV pressure sores.   On May 7, 2008, she died when her organs failed as a result of the infections.

When her son, David Blackmon, filed a compliant in Sevier County Circuit Court against Pigeon Forge Care and Rehab, the facility filed a motion to compel arbitration based on forms Blackmon signed while his mother was at the nursing home.

Ogle overruled that motion, noting Pierce checked herself into the facility and was competent to sign the papers herself, that power of attorney she signed for Blackmon in 1991 had lapsed and didn’t apply in this case, and that officials there acted in a “shoddy” manner in obtaining signatures from Blackmon and keeping records. For one thing, Ogle noted, the center failed to provide Blackmon copies of the forms he signed.

“The execution of the agreement, the way it was handled, it was very shoddy. And I think that quite candidly is unconscionable, that it does shock the conscience of this court by how this entire agreement was handled. … They should not be enforced.”

Some of the papers were signed by Pigeon Forge Care and Rehab officials days after the conference with Blackmon, calling into question where they had authority to execute the agreement at that time. Blackmon signed the forms by marking an “x” where signatures were required; he testified he was told he needed to sign the forms to have his mother placed on Medicare to pay for the stay and that he did not read them.