Articles Posted in Nursing Home Negligence

Floods_Kentucky_Medical_RecordsNursing home staffs have a duty to care for their vulnerable patients, and cases of negligence are a breach of that duty. Families who find themselves in this position must move swiftly because the law imposes strict deadlines for action. The law may, however, delay these deadlines if the patient’s family neither knew nor should have known about the misconduct, which was a key factor in a patient’s family’s recent victory before the Louisiana Court of Appeal.

Delvin Hume’s family placed him in the Ferncrest Manor Living Center in 2009 for a one-month stay while his wife underwent and recovered from eye surgery. Within less than a week, the patient allegedly fell from his bed and missed his diabetes medication because the nursing home staff erroneously refused to administer it.

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Cargo_VanWhen you’ve been injured by the negligent actions, or inaction, of others, you likely have a lot of things on your mind. If your injuries are the result of negligence committed by a health care provider, it is very important to understand exactly what requirements the law imposes on you in order to sue that provider. In some cases, you may have to appear before a review panel before you can sue in court. Failing to follow this step can lead to the dismissal of your case, as happened to one Lafayette-area woman, whose unfavorable ruling was recently affirmed by the Louisiana Court of Appeal.

In this recent case, Veronica Thomas, a woman confined to a wheelchair, was being transported from a hospital to a nursing home in Lafayette. An employee of the nursing home drove the van that carried the patient. According to Thomas, she was injured during that trip when she fell backwards.

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doctor-chartA nursing home’s negligent handling of a patient’s feeding needs contributed to the man’s death and also led a jury to issue a monetary award to the family of the deceased patient. The family’s recovery was not as large as it might have been, however. The Louisiana Court of Appeals determined that the jury in the case never made an express finding that the facility violated the Nursing Home Residents’ Bill of Rights, so the family was not entitled to recover their court costs and attorneys’ fees.

The appeal arose from a jury trial and verdict in the nursing home negligence death of Jesse Harvey, Sr. Harvey was a long-term resident at Acadian Rehabilitation and Nursing Center. During a brief hospital stay, doctors performed a test called a pharynogram, which showed the man had an inability to swallow. The doctors ordered that the man receive nutrition through a feeding tube and nothing by mouth.

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Peanut-Butter-Jelly-SandwichIn Louisiana, all medical malpractice cases must first go before a medical review panel before proceeding to court. Despite arguments to the contrary by a nursing home patient’s family, a case involving the choking death of a patient was one of medical malpractice and not just simple negligence. The Louisiana Court of Appeal ruled that the case would require medical expert evidence in order to resolve it, so the matter was not one of simple negligence and would need to go before the panel before proceeding to trial.

The case pertained to the choking death of Jerry Don Campbell, who was a patient at Claiborne Healthcare Center after having suffered a stroke. In addition to the stroke, the patient had dementia and difficulty swallowing. On one day in June last year, Campbell retrieved a peanut butter sandwich from a sandwich cart and sat down to eat it. Some time later, nurses found him unresponsive. The staff transferred him to a local hospital, but he did not survive.

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Nursing_home_corridor (1).JPGNursing homes are tasked with a great responsibility: the care and treatment of those who can least care for themselves, usually the disabled or the elderly. While most facilities undertake this task with the utmost care, some fall short of providing even a basic level of care. That is what two juries, one in Florida and one in West Virginia, concluded as they handed down massive damages awards against nursing homes whose negligent care hastened the deaths of a pair of patients.

In Charleston, West Virginia, Dorothy Douglas stayed at the Heartland of Charleston nursing home for three weeks in 2009. By the time Douglas’s son moved her to another nursing home, she had lost 15 pounds and was near death from dehydration. She passed away shortly thereafter.

Lawyers for Douglas’s son argued at trial that the facility prioritized maximizing patient numbers while minimizing the number of staff, which led to the negligent level of care that ultimately killed Dorothy. A Kanawha County jury agreed, and handed down a $91.5 million judgment. Of that amount, $80 million constituted punitive damages. Earlier this year, a Kanawha County judge rejected the nursing home’s request for a new trial.

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It is common for nursing homes to take steps to shield themselves from litigation involving the care of their residents. There are currently heated arguments concerning the courts’ willingness to honor “arbitration clauses” in residents’ contracts. “Arbitration clauses” are often included in the living agreements signed when someone becomes a resident of a nursing home. They basically state that claims against the home will not be solved through the courts, but will instead be handled by an outside, professional arbitrator that the nursing home hires. The US Supreme Court recently decided not to hear an appeal concerning an elder abuse case wherein a lower court ordered a home to pay damages to the residents, despite the fact that the resident signed a contract with an “arbitration clause”.945156_wheelchair.jpg

While “arbitration clauses” are generally taken into consideration, they can be treated with suspicion, due to the fact that an arbitrator may be biased towards the institution (in this case, the nursing home) that hires him and may want to hire him again in the future. In Beverly Enterprises, Inc. vs. Ping, there may have been negligence so severe that it resulted in a resident’s death. The resident’s estate would potentially have the right to file a “wrongful death” suit against the nursing home, citing egregious actions or abuse that led to the patient’s death
Another case the US Supreme Court chose not to review, concerning the wrongful death of a patient, ended in a lower court ruling against the Illinois nursing home it was brought against. Though an “arbitration clause” stated that controversies meeting or exceeding $200,000 would be settled in arbitration, not the courts, the clause was signed by the daughter of the deceased, as a representative of the deceased. She did not represent the deceased’s entire family, who the Illinois Supreme Court ruled had a valid claim in the wrongful death suit.

Negligence and abuse can be an unfortunate reality and it is making national news. Organizations based out of Indiana, Health & Hospital Corporation and American Senior Communities, LLC, have had a tragic wrongful death lawsuit brought against them. In the case of Betty Riley, it is being argued that her death was a result of medical complications relating to blunt force trauma. It is alleged that she suffered this condition during a physical altercation with another patient of the nursing home, and that the nursing home itself is responsible for negligence in allowing such a situation to arise. If Betty Riley’s family wins their case against the nursing home, their compensation would not exceed $300,000. The state patient fund would cover just under half of the settlement, with the nursing home having to pay the remainder.

The National Center on Elder Abuse recently included in a report the number of reported citations against nursing homes. The NCEA reports that from 1999-2001, 1 in 3 nursing homes were cited for violations that directly did lead, or potentially could have led, to harm. 1 in 10 were cited for violations that “caused residents harm, serious injury or placed them in jeopardy of death.”

There are several reasons a nursing home may have judgments levied against them, in Louisiana and elsewhere in the nation. Aside from physical abuse from employees, failure to intervene in altercations between residents can also result in money owed to complainants. Psychological abuse; negligence regarding patient care, building issues and hiring practices; failure to properly train staff – these are all offenses that can result in a nursing home having to pay damages or other forms of compensation.

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According to the National Center of Health Statistics there are over 1.5 million people in nursing homes in the United States. The estimate of understaffed nursing homes is approximately 90% according to the U.S. Department of Health and Human Services. There are over 20,000 complaints of abuse, gross neglect and exploitation.

In September 2011, a man was admitted to a local nursing home and was experiencing medical conditions that were potentially life threatening. The nursing home held itself out as a properly staffed, skilled, qualified nursing home and a Medicare/Medicaid Provider.
Then the family’s nightmare began.

In October, 2011, the man’s daughter sent a letter to Louisiana’s Department of Health and Hospitals stating a complaint that the nursing home was not providing appropriate care for her father. Two months later, a request for medical records and a HIPAA (Health Insurance Portability and Accountability Act) authorization were sent to the nursing home. A HIPPA authorization may be used to obtain health records the patient, or legal representative, is entitled to by law. According to federal law, Medicare/Medicaid Providers like this healthcare provider are required to follow certain federal regulations and statutes meant to ensure proper conduct by the provider.

One month later, in January 2012, we at the Cardone Law Firm, as counsel for the patient and his daughter, sent a request for the patient’s records to an officer of the facility accompanied by a Power of Attorney. Days later a followup call was made to the nursing home. Over the next several days, the staff repeatedly dodged any phone inquiry and insisted they would call back. We subsequently contacted the Louisiana Department of Health and Hospitals regarding the numerous attempts.

One of the defendants, an officer for the nursing home, contacted us claiming that the documents needed to be given to the CEO of the facility. Only his phone number was given. The CEO of the nursing home and a defendant Larry S, repeatedly refused to answer calls until we were told the documents needed to be personally delivered to the home of Larry S. We attempted delivery and defendant claimed that no records would be released unless the patient was declared legally incompetent. This claim was not based on any actual law or statute. In March 2011, a final attempt for the records were made on the facility and after no response followed up the request with a statement advising facility of their federal violations.

Senator Mary Landrieu’s office contacted the patient’s daughter to inform her that the Senator’s office had advised nursing home that the requests made were valid requests for medical records.

The Nursing Home ultimately had to pay over $6,000 for failing to provide the medical records is a timely manner.

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