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Articles Posted in Nursing Home Abuse & Neglect

NBC News reported this week on the number of nursing home patients who are transferred to hospitals and subsequently die from sepsis, a potentially life-threatening complication of an infection.  Sepsis often occurs when an infection is untreated or treated inadequately.  Sepsis occurs when chemicals released into the bloodstream to fight the infection cause inflammation throughout the entire body instead.  Severe cases of sepsis can lead to septic shock, which is characterized by very low blood pressure, and is a medical emergency.

A private healthcare data firm, Definitive Healthcare, conducted a special analysis of data related to nursing home patients who were transferred to hospitals and later died.  The analysis revealed that approximately 25,000 patients a year had developed sepsis while in nursing homes across the U.S.  Definitive Healthcare looked at Medicare billings from 2012 through 2016, and concluded that the treatment of this life-threatening condition costs Medicare more than $2 Billion a year.   These numbers show that sepsis is a huge public health problem in the U.S.

Sometimes, a nursing home patient can develop a pressure sore on the hip or tailbone.  If that patient is incontinent, there is an increased risk that the pressure sore will become infected.  The longer the infected pressure sore goes untreated, or inadequately treated, the greater the risk of the patient developing sepsis.  If the sepsis is not treated promptly and aggressively, the patient can go into septic shock, and die.  Nursing home patients, who often have other comorbidities and conditions, have an increasingly difficult time surviving sepsis.  It is not just pressure sores that can lead to sepsis in nursing home patients.  Sepsis can develop in bedridden patients who are suffering from pneumonia, urinary tract infections, or other infections.  What can start out as a relatively small, isolated infection can quickly become a big infection and cause the death of a nursing home patient.

The Beaufort County South Carolina Sheriff’s Office has reported that a resident of a nursing home on Hilton Head Island was sexually assaulted by an employee of the nursing facility.  The assault took place at Life Care Center of Hilton Head, located at 120 Lamotte Drive.

Beaufort County Investigators were called to Life Care Center of Hilton Head on the afternoon of Wednesday May 2, 2018, in reference to an assault that had taken place the previous night.  According to the Sheriff’s report, a nurse said she went to a patient’s room around 1:15 p.m. Wednesday and found her “upset and crying.”  When she asked what was wrong, the patient told the nurse that she had been sexually assaulted.

Beaufort County Sheriff’s Office spokesperson Capt. Bob Bromage said a suspect in the assault had been identified as a nursing home employee, and that person is now on suspension from his position at Life Care Center of Hilton Head.  Because the investigation is ongoing, very few details have been released to the public about the assault that took place inside Life Care Center of Hilton Head.

Nursing-Home-Evacuation-300x169As anyone who lives in the coastal area of the southern United States knows, we have dealt with several major hurricane evacuations over the last couple of years that have forced residents out of their homes.  While these evacuations can be an ordeal for anyone, it is especially challenging to evacuate those vulnerable citizens who are residents of nursing homes and other assisted living facilities.  Though with proper planning, nursing homes can and should have a plan that protects their residents in the event of a mandatory hurricane evacuation.

Sadly, we saw a lack of preparation by nursing homes time and time again during the coverage of the major hurricanes of 2017.  For instance, ten elderly nursing home residents in Hollywood, Florida died after being kept inside a facility that essentially turned into an oven when Hurricane Irma knocked out the facility’s air conditioning for three days.  These residents were left inside the building, despite the fact there was a hospital with working electricity just across the street.

There were also horrifying images out of Texas during Hurricane Harvey that showed nursing home residents sitting in several feet of unsanitary flood water.  Luckily in the Texas case, the residents ultimately had a (somewhat) happy ending, as all 18 of those affected by the flood water were airlifted from the flooded La Vita Bella assisted living facility in Dickinson, Texas, and subsequently relocated to other facilities across the state.  However, these residents should have never had to go through such a traumatic experience.

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).”