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Articles Posted in Nursing Home Abuse & Neglect

All of us have been taught the importance of being personally responsible and accountable for our actions. This week, the U.S. House of Representatives will vote on Bills that will make it more difficult, if not impossible, for citizens harmed by the wrongdoing of others to seek justice in our nation’s courts. Congress is proposing legislation that will make lawsuits brought by injured patients, nursing home residents, and their families nearly impossible to pursue. This so-called “Protecting Access to Care Act of 2017” (Bill H.R. 1215) will rig the system against individuals and tip the scales in favor of doctors, hospitals, nursing homes and their insurance companies. These bills seek to prevent medical care providers who commit negligence from being held accountable for the injuries and damages they cause. Instead of protecting our most vulnerable citizens, such as nursing home residents, Congress is attempting to enact laws that will benefit only the corporations that run nursing homes and the companies that insure them.

Unfortunately, certain politicians, who are supported in large part by corporations and insurance companies, are proposing these laws that are designed to destroy your right to hold wrongdoers accountable for their negligent acts and omissions.  If passed, the Bills proposed will radically change existing laws and radically limit citizens’ access to courts.  The proposed Bills include the following:

  1. A law designed to protect doctors, hospitals, nursing homes, and medical device manufacturers by limiting compensation for injuries caused by their negligence to $250,000, regardless of how egregious their conduct was or how much the injury has devastated a victim’s life.

Our firm has been suing nursing homes since the 1990s.  In fact, Suthers Law Firm was one of the first firms in the United States to obtain a successful jury verdict against a nursing home for neglecting and abusing a resident.  When we first started accepting these cases in the 1990s, the two most common types of injuries that we saw recurring in nursing homes were pressure sores and fall-related injuries. Regrettably, 20 years later, these are still the two most common injuries we see in the nursing home setting.  Fall-related injuries significantly impact the lives of residents and their families.  Some of the more significant, life-altering injuries resulting from falls in nursing homes include hip fractures and subdural hematomas (brain bleeds).  When a resident falls in a nursing home and suffers a serious injury, it often causes, or contributes to the cause, of impairment, disability, and a decrease in enjoyment of life.

The Centers for Disease Control and Prevention (CDC) has studied the impact of falls on elderly individuals.  As many as 75% of elderly individuals who reside in nursing homes sustain at least one fall yearly.  That is twice as much as the number of falls among older individuals living at home or within the community at large.  According to the CDC, as many as 20% of the falls that occur in nursing homes result in a serious injury.

In examining why falls occur in nursing homes, one must look at the patients’ risk factors as well as environmental factors.  Often, residents of nursing homes have medical conditions, such as Parkinson’s disease, impairment from a prior stroke, diabetic neuropathy, and visual impairment, which can affect their balance and ability to walk.  Residents may also have conditions, such as dementia and Alzheimer’s disease, that can affect their judgment.  These conditions place the residents at an increased risk of falling.  It is the nursing home’s duty to recognize these risk factors and take steps to prevent falls or lessen the risk of falls and fall-related injuries.  Nursing homes also have a duty to address any environmental hazards, such as clutter in the hallways, inadequate lighting, slippery floor surfaces, and lack of adequate safety equipment in rooms and bathrooms, in an effort to prevent falls.

Life Care Centers of America (“LCCA”), and its owner Forrest Preston, have agreed to pay $145 million to settle a government lawsuit Life Care Centersalleging that LCCA violated the False Claims Act by knowingly causing their nursing homes to submit false claims for rehabilitation therapy services that were not reasonable or necessary. The Tennessee based company, owns and operates more than 200 nursing homes across the United States.  Forbes estimates that Forrest Preston, who is sole owner of the company, has a net worth of around $1.4 billion.

The lawsuit alleged that LCCA committed fraud by falsely billing Medicare and TRICARE for medical services that were provided to patients who were ineligible to receive them. Medicare reimburses nursing homes at a daily rate for the health care services that they provide to Medicare patients. This daily rate is based on the level of care that is provided to a patient, as well as the amount of time that a patient spends receiving that care.  Further, the Complaint contended that LCCA pressured their employees to provide the maximum level of care to their Medicare and TRICARE beneficiaries, despite the fact that many of these patients did not need these services, in an effort to increase the daily rate they billed to the government. The Department of Justice argued that this excessive level of medical attention, and increased length of stay, was harmful to these patients, and that LCCA’s financial interests were prioritized over the quality of care that was provided to their patients.  The settlement ends eight years of litigation in two consolidated False Claims Act lawsuits filed separately by a former nurse and a therapist employed at LCCA.

The False Claims Act allows private citizens to sue those that commit fraud against government programs.  Moreover, the False Claims Act contains qui tam, or whistleblower, provisions. Qui tam is a unique mechanism in the law that allows citizens with evidence of fraud against government contracts and programs to sue, on behalf of the government, in order to recover the stolen funds.  In compensation for the risk and effort of filing a qui tam case, the whistleblower or “relator” may be awarded a portion of the funds recovered, typically between 15 and 25 percent.

Recently, we reported on the new rule issued by the Centers for Medicare and Medicaid Services (CMS) that bars nursing homes from requiring residents to sign arbitration agreements as a condition of their admission to the nursing home.  These forced arbitration agreements prevented nursing home residents and their family members from filing a lawsuit against the nursing home when the resident was neglected and injured or killed.

Pre-dispute, forced arbitration agreements prevent the victims from enforcing their right to a jury trial and instead, require that their claims be decided by a single arbitrator.  By banning pre-dispute arbitration agreements, CMS effectively reinforced the right to a jury trial granted to all citizens by the Seventh Amendment to the United States Constitution.

Now, the nursing home industry has filed a lawsuit against CMS in a desperate attempt to overturn the new rule.  The lawsuit challenges CMS’ rule prohibiting nursing homes’ use of pre-dispute arbitration agreements, which are designed to avoid accountability when nursing homes abuse and neglect residents.  As attorneys who have represented victims of abuse and neglect in nursing homes and their family members since the 1990s, we can tell you that these cases are far too common.  Instead of working to provide better care to nursing home residents, the nursing home industry chose to file a lawsuit in a last-ditch attempt to be able to continue to use pre-dispute arbitration agreements.  It is ironic that the nursing home industry has filed a lawsuit that seeks to deprive residents and their family members of their right to file a lawsuit when a resident is injured or killed as a result of abuse or neglect in a nursing home.  That is the textbook definition of hypocrisy.

As we have written on this blog numerous time over the years, many nursing homes and other long-term care facilities use forced arbitration contracts to prevent their residents from bringing a legal action against the facilities in a court of law, and are instead forced into expensive, secretive arbitration proceedings.  As of this week, a federal government rule looks to put an end to the practice of pre-dispute forced arbitration.

A new Centers for Medicare and Medicaid Services “CMS” rule will bar nursing homes from compelling residents to settle disputes in arbitration as a condition of admission.  Residents and facilities will still be able to use arbitration on a voluntary basis after a conflict occurs, however, CMS says. In these cases, CMS requires that these arbitration agreements be clearly explained to residents, including the understanding that these agreements are voluntary, and that these agreements should not discourage or prevent residents and their loved ones from alerting authorities to concerns about quality of care.  Though again, all of this would occur after an incident or injury in the nursing home has taken place.

“Today’s rules are a major step forward to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs,” Andy Slavitt, said the acting administrator for CMS.  Along with the pre-dispute arbitration ban, the final rule also mandates nursing home operators provide “nourishing, palatable” dietary options that meet residents’ nutritional needs and preferences, create an infection prevention and control program and develop a comprehensive, person-centered care plan for each resident within 48 hours of admission. A nurse aide and a member of the dietary staff must contribute to that care plan, the rule reads.  The rule also includes new and updated regulations on elder abuse, staff competency and discharge planning.

The Centers for Medicare and Medicaid Services (CMS) released its latest quality ratings of nursing homes in the United States.  One out of every four Georgia nursing homes received the lowest rating, one star.  A one star rating means that the nursing home is “much below average.”  Four Savannah-area nursing homes were among those facilities in Georgia receiving one star ratings.  Those nursing homes were Signature Healthcare of Savannah, Thunderbolt Transitional Care and Rehabilitation, Abercorn Rehabilitation in Savannah, and Oceanside Health and Rehab. in Tybee Island.  A Bryan County nursing home, Bryan County Health & Rehab. Center in Richmond Hill, also received a one star rating.

CMS rates nursing homes on health inspections, staffing, and quality measures.  CMS looks at the star ratings for each of the three, above-referenced components and then derives an overall rating.  The ratings range from one star, which means “much below average,” to five stars, which means “much above average.”  With 27.6% of its nursing homes receiving a one star rating, the State of Georgia ranks second worst in the Southeast.  CMS created the rating system several years ago to provide consumers with more information about the performance of services and quality of care delivered at nursing homes throughout the United States.  Dr. Patrick Conway, the Deputy Administrator and Chief Medical Office of CMS, stated that the star ratings provide a “more accurate reflection of the services that nursing homes provide.”

Savannah attorney John Suthers was among the first lawyers in the United States to successfully sue and hold a nursing home accountable for abusing and neglecting a resident.  Suthers said, “I applaud the transparency of the star rating system.  When folks are faced with the important decision of placing a loved one in a nursing home, this rating system gives them an easier way to determine which nursing home is the best fit.”  However, Suthers cautions that the rating system is just one way of looking for a nursing home.  Families should still go to the nursing home to see how it appears, ask the right questions, and determine whether it will meet the needs of their loved one.  For tips on how to select a nursing home, questions to ask and how to recognize signs of abuse or neglect, go to the Nursing Home Resource Center page at www.sutherslaw.com.   For a searchable list of nursing homes and their ratings, go to the Nursing Home Compare page on the CMS website.

After an alarming report by the website ProPublica, the Centers for Medicare and Medicaid Services has announced plans to crack down on nursing home employees who take demeaning photographs and videos of residents and post them on social media websites.  The report documented 44 known incidents across the country since 2012 in which nursing home woSocial Mediarkers posted photos or videos of nursing home residents on social media websites such as Facebook, Instagram and Snapchat.   Among the incidents documented by the report was a certified nurse assistant sharing pictures of a resident lying naked in bed covered in feces. Additionally, earlier this year, a 21-year-old nursing home CNA in Wisconsin recorded a video of a partially nude, 93-year-old Alzheimer’s patient playing tug-of-war with her clothes. At the time, the CNA “thought it was funny” according to her post on social media.  She is now facing criminal charges for the post.

As a result of the ProPublica report, the Centers for Medicare and Medicaid Services (CMS) sent out a memo to state regulators laying out guidelines that forbid employees from taking demeaning or humiliating photos and videos of residents.  The memo sets uniform standards for how such abuse should be written up by inspectors and the severity of sanctions that should be levied. In the past, there was great variability.

“Nursing homes must establish an environment that is as homelike as possible and includes a culture and environment that treats each resident with respect and dignity,” said the memo signed by David Wright, director of the CMS survey and certification group. “Treating a nursing home resident in any manner that does not uphold a resident’s sense of self-worth and individuality dehumanizes the resident and creates an environment that perpetuates a disrespectful and/or potentially abusive attitude towards the resident(s).”

As part of an ongoing campaign by trial lawyers across America to end the abusive use of forced arbitration, the American Association for Justice (AAJ) has released a new report outlining how arbitration clauses stack the deck against American citizens.  The report entitled “FORCED ARBITRATION: HOW CORPORATIONS USE THE FINE PRINT TO BULLY AMERICANS” provides an in depth analysis of how corporations use arbitration clauses to deprive consumers, workers, students, and patients of their 7th Amendment right to trial by jury when they have been injured by a corporate wrongdoer.

Buried in credit card agreements, employment contracts, nursing home admission papers, or in click through agreements that come with online purchases, are arbitration clauses designed to prevent you from utilizing your constitutional right to a trial by jury.  Forced arbitration eliminates the right to hold corporations accountable in court when they injure someone or break the law.  Instead, these claims are funneled into a system designed by the same wrongdoers against whom the claim is being made.

Unlike lawsuits, where the parties are given the opportunity to conduct meaningful discovery, take depositions, and have disputes over issues decided by judges, forced arbitration is different.  There is no right to go to court, no right to a trial by jury, no right or a very limited right to conduct discovery, and no right to a judicial review.  In forced arbitration, usually one individual, the arbitrator, acts as the judge and jury without the traditional checks and balances that are afforded to the parties in a lawsuit.

Federal and state laws require that nursing homes maintain or attain the highest practicable mental, physical, and psychosocial well-being for their patients.  These laws provide that nursing homes must ensure that their patients’ nutrition and hydration needs are met, as proper nutrition and hydration are two critical components for nursing home residents to maintain their overall health and well-being inside the facility.

The elderly are particularly at risk for both malnutrition and dehydration.  Due to decreased body reserves and other diminished capacities, the elderly are much more susceptible to malnourishment than younger adults. Moreover, many aging patients have dental problems or experience loss of appetite caused by health problems or medications. Thus, they need to be monitored by nursing home staff carefully for any signs of malnutrition. Often times this is not done.

Another reason patients become malnourished while residing in nursing homes is that many cannot feed themselves without assistance, and are not properly fed by nursing home staff. Each year thousands of nursing homes across the country receive citations for inappropriate feeding tube insertions or improper feeding methods.

A great injustice is taking place in this country:  the use of pre-dispute binding arbitration clauses in nursing home admissions contracts by the nursing home industry.  These clauses provide that victims of abuse and neglect in nursing homes give up their right to a jury trial. This directly undermines the spirit and intent of the Nursing Home Reform Act of 1987:  to improve the quality of care and clinical outcomes for our most vulnerable citizens.

Elderly nursing home residents and their spouses are being pressured or mislead into signing arbitration clauses, frequently when they lack the mental capacity, authority or true willingness to do so.  If arbitration was a level playing field and fair to both sides without any negative repercussions to the resident or family, does anyone really believe that the nursing home industry would feel the need to so aggressively enforce them and seek to bury these provisions within 50 pages of admissions materials?

Arbitration provisions lead to protracted litigation, not faster results or less expensive resolution of cases.  The nursing home industry uses them to stall cases, take appeals and delay justice.  An elderly surviving spouse may not live long enough to see justice when nursing home corporations take this approach.