Abuse at Understaffed and Underperforming Nursing Homes

Nursing home or long-term care facility negligence or abuse can often amount to a significant award of damages to a plaintiff. Such damages awards will often include nominal damages for the actual liability based on negligence or intentional abuse, as well as punitive damages that can punish the facility and make a statement as to how severe the abuse was against the plaintiff. A recent jury decision in Colorado demonstrates this where a plaintiff and his family were awarded $3.3 million in damages, comprising of $300,000 for the actual negligence, and $3 million in punitive damages against the facility. This case was the second in approximately one year that families suing the facility won an award of damages.

The Case Details
In 2013, the family of an 82 year old patient resident of a Colorado nursing home sued the facility alleging that over the course of his three years there, he suffered from many bed sores, skin tears and abrasions, infections (including from E. Coli as well as a urinary tract infection), and he was dehydrated and malnourished. He also significantly lost weight and at one point lost the ability to use his arms and legs. The complaint alleged that this was a result of the facility staff’s failure to give the level of care that the patient needed, particularly given a medical status that heightened his needs. The plaintiff suffered from mild retardation as well as dementia, among other problems. The staff failures to pay him enough attention and to do the very things they were hired to do to keep the plaintiff comfortable and as healthy as possible under the circumstances. The family also alleged violations of the Colorado Consumer Protection Act by the facility because it advertised itself as a top rate nursing home when it allegedly knew full well that it could not give the proper care and treatment to patients to keep them healthy and well.

New Scams Targeting the Elderly

California Seniors and Fraudulent Telephone Calls

Older adults are becoming especially susceptible to elder financial abuse, and a recent article in the San Mateo Daily Journal suggests that police have noticed a “rise in fraudulent telephone scams that target seniors.”  Elder abuse can take many different forms, and scammers often prey upon older adults who aren’t familiar with new financial technologies and have money saved.  And this form of abuse can occur anywhere—at the home of a caregiver or at a nursing home.  For example, we recently wrote about a financial abuse scheme at a Palo Alto care community for the elderly.

Old Lady

What have some of the recent scams looked like?  According to the San Francisco police, there’s a new telephone scam in California in which an older adult receives a phone call from a person who claims to be a paralegal who is calling from the Attorney general’s office.  The caller then tells the elderly victim that there’s “a warrant for her arrest” and that she’ll need to “pay a fee by using a Vanilla prepaid cash card, or risk being sent to jail.”  When the scam first was reported by a woman in South San Francisco, the victim described the caller as having a “Russian accident.”

Seniors in California should be on the lookout for scammers running schemes to defraud people over the phone, and they should also be sure to report any potentially fraudulent telephone calls.  According to the police, many victims of these scams aren’t willing to come forward because they’re “often confused, fearful, or embarrassed by the crime.”  As a result, financial fraud has become “the fastest growing form of elder abuse.”

What can older adults and their loved ones do?  First, always report a situation that might fall within the boundaries of financial abuse—authorities can’t combat the problem if they don’t know it’s happening.  Second, have a clear understanding of the types of scams often run on the elderly.  According to the article in the San Mateo Daily Journal, common scams can include the following:

  •      Telephone calls informing the elderly that they’ve won a sweepstakes or the lottery;
  •      Telephone calls offering home repairs or utility repairs;
  •      Requests for seniors to verify their credit card information;
  •      Calls or emails from an alleged “bank examiner”; or
  •      Contact from an alleged “IRS agent.”

While many of these scams are run over the telephone, scammers also target older adults through email.  As a result, it’s important to monitor electronic communication for potential fraud.

How Can Seniors Avoid Scams?

According to the National Council on Aging (NCOA), scams that target older adults tend to fall into the following categories: health insurance fraud scams, Medicare scams, telemarketing scams, and home repair fraud.  The NCOA provides some of the following tips for seniors to steer clear of being swindled:

  •      Don’t sign insurance forms or contracts until you’ve looked over them completely and understand the terms;
  •      Only give insurance information or financial information to people who have specifically provided you with care;
  •      Protect your health insurance information and Medicare number as if it were a credit card number or bank account number;
  •      Always review your bills, line-by-line, to ensure that you’ve only been charged for services or care you’ve received;
  •      Never buy products from a company you’re not familiar with; and
  •      When you receive a call that you suspect may be a scam, ask for the caller’s name, business name, address, telephone number, and licensure information.

Most importantly, if you suspect that a loved one has been the victim of fraud, contact an experienced San Diego elder abuse lawyer today to discuss your claim.

Photo Credit: Nicolas Alejandro Street Photography via Compfight cc

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Keeping Nursing Homes in Check with Video Cameras

According to a recent report, a local Chicago news team examined the issue of placing cameras inside nursing homes to document what goes on. According to an article from the news investigation, it is not against the law for a family to place a camera inside a relative’s nursing home to record what goes on in that room. In light of an age of surveillance not just by government but by citizens of their own private homes, Illinois nursing homes comprise some locations where such cameras generally do not exist. There is no law or regulation mandating their usage, although other states are entertaining the idea of legislating such video documentation. Some families indicated a fear of retaliation for using cameras and thus avoid it altogether, and the nursing homes reserve the right to remove the cameras or discharge the patient because of use of the cameras. Thus there are risks in doing so that might chill any motivation to record how one’s family member is treated and cared for.

Nursing Home Camera Use Across the Country
In Oklahoma City, a family that used a video camera in their elderly mother’s room discovered heinous abuse against her by staffers, including shoving latex gloves into her mouth and taunting her, hitting her on the head and mocking her while also throwing her around the room and pressing hard on her chest in the form of chest compressions. She died relatively soon after the abuse and the staffer even went to jail. Oklahoma subsequently passed a bill to allow surveillance cameras in the rooms of long term care facilities on a voluntary basis. While you can count other states with similar laws on one hand, Illinois is not one of them. Texas, for example, a camera inside a patient resident’s room recorded abuse of the patient at the hands of two staffers, who were subsequently fired and charged criminally. Sadly, the patient soon died. (Even more sickening, the camera belonged to the aides who proactively filmed the abuse to share with friends.) Texas, along with Oklahoma and New Mexico, by law permit residents to use cameras in their own rooms, while other states consider the possibility. With such laws, the nursing homes that discover the cameras then cannot remove the cameras without breaking the law.

An Overview of the Regulation and Monitoring of Illinois Nursing Homes

In the state of Illinois, nursing homes are “licensed, regulated, inspected and/or certified” largely by the Illinois Department of Public Health (IDPH) in enforcing the state’s Nursing Home Care Act. The U.S. Department of Health and Human Services (HHS) also has certain federal regulatory functions over nursing homes, specifically through the Centers for Medicare and Medicaid Services (CMS). Federal oversight kicks in where nursing homes accept money from Medicare and/or Medicaid, which are federally funded programs. By accepting federal funds, the nursing homes open themselves to federal jurisdiction under HHS. While federal and state jurisdiction and administration of laws and regulations differ, they do also overlap, and nursing homes can be subject to charges and sanctions by both governments. The IDPH also has a deal with the Centers for Medicare and Medicaid Services whereby the state agency also enforces federal rules and regulations for state nursing homes that accept Medicare or Medicaid dollars from the federal government.

Illinois Department of Public Health

The IDPH obviously enforces state laws and regulations regarding nursing homes. According to its website, IDPH makes about 1,300 license inspections each year, and deals with around 6,000 nursing home complaints on an annual basis. The Department conducts as many as 10,000 surveys of nursing homes statewide (including the aforementioned inspections). Inspection of a nursing home occurs at least once every 6-15 months, and typically occurs on average once per year (12 months), sometimes as a scheduled inspection and sometimes in response to a filed complaint. In either event, the nursing home is never aware of when the inspection is coming, which ideally keeps them honest so they don’t try to mask any problems for the one day that IDPH officials show up. Inspectors also mix up the schedule each year so nursing homes can’t easily predict when they can expect another visit. Also, nursing homes with more complaints or consistently poor surveys will naturally be subject to more frequent inspection visits.

Major Jury Awards Around the Country for Alleged Nursing Home Resident Abuses

Just in the last week, it was reported that a New Jersey jury awarded $13.2 million to the family of a former patient resident of a Jersey City nursing home. Victim Mary Dwyer was admitted to a Jersey City nursing home for what was only supposed to be short term rehabilitation after she dislocated her shoulder at home during a fall. She was admitted to the nursing home after only 3 days in the hospital, and was expected to have a short stay.

Cases Across the Country
However, according to the article Ms. Dwyer went through treatments were 9 wound debridements (which is the removal of dead or dying tissue from wounded areas to give healthy tissue a chance to heal the wound), 2 bone shavings, and a colostomy, and further suffered serious ulcers and lost 20 pounds. These treatments and injuries all culminated in her passing away during the course of what was a 3 month stay at the nursing home for a dislocated shoulder after a fall. As alleged by the plaintiff in the case, the nursing home committed negligence when it engaged in completely unnecessary procedures and treatments of Ms. Dwyer. According to attorneys, the hospital staff only turned the patient 10 times while she was at the facility. Failure to turn her more often over the course of 282 staff shifts led to a major bedsore.

Blood Pressure Drugs and Dangerous Falls Among Older Adults

When nursing home neglect happens, elderly patients can sustain serious and life-threatening injuries.  But a recent article in the New York Times suggests that care facilities may need to pay particular attention to residents who take high blood pressure medication.  What’s going on with blood pressure medication?  In short, patients who take these drugs might be much more likely to suffer injuries in a dangerous fall.  And, according to the article, “more than 70 percent of those over age 70 contend with high blood pressure.”

Old Guy

Has your elderly loved one sustained injuries in a fall?  Nursing homes and assisted living facilities have a duty to keep residents safe, and many advocates in California currently are working to make RCFEs safer places for residents.  Don’t hesitate to discuss your case with an experienced San Diego nursing home abuse lawyer.  At the Walton Law Firm, we are dedicated to helping victims of elder abuse, and we can answer your questions today.

New Study: Link Between High Blood Pressure and Serious Fall Injuries

In a study looking at 5,000 older adults who are Medicare beneficiaries, more than 85 percent were on at least one type of blood pressure medication, and “most took two or three, or more.”  What are the different classes of blood pressure medications?  For most of us, it’s difficult to distinguish among the available forms of blood pressure drugs.  They include diuretics, beta blockers, calcium channel blockers, and renin-angiotensin system blockers.

According to Dr. Mary Tinetti, the chief of geriatrics at Yale School of Medicine, “the prevailing notion is that these medications are safe, with very few adverse effects.”  However, Tinetti’s recent study suggests that anti-hypertensive drugs might not be as safe as we’d like to think.  In fact, the study found that, among older adults with an average age of 80 who had been taking blood pressure medications for up to three years, “the risk of serious fall injuries—fractured bones, brain injuries or dislocated joints—was significantly higher.”  In other words, taking blood pressure medication appears to increase the risk of a serious fall.

Of the 5,000 seniors involved in the study, 9 percent sustained severe injuries in falls during a three-year follow-up period conducted by the researchers.  And “serious fall injuries were 40 percent higher than among people who didn’t take anti-hypertensives.”

While Tinetti has emphasized that her study doesn’t prove that blood pressure medications cause falls, it does suggest that “anti-hypertensive medications are among the logical suspects.”  Why would blood pressure drugs lead to falls?  The answer might be simpler than you’d think.  These drugs lower a person’s blood pressure.  As a result, when older adults stand up, the drugs can “make them fatigued, confused, and dizzy.”  And as Tinetti points out, “those are all risk factors for falls.”

Monitoring Elderly Residents with High Blood Pressure

With a very large percentage of older adults taking anti-hypertensives, Tinetti’s study suggests that a high percentage of the residents at nursing homes and assisted living facilities may be at increased risk of a dangerous fall.  While medical authorities have advised altering the guidelines for blood pressure medications given to elderly patients, caregivers may need to take on additional monitoring responsibilities.

Blood pressure management is a tricky field, given the risks associated with untreated high blood pressure.  But are the blood pressure medications worth the risk of a fall?  Remember, serious falls can result in permanent disabilities and life-threatening injuries.  If a loved one has sustained injuries from a fall at a nursing home or residential facility, contact the Walton Law Firm today.  An experienced California nursing home abuse attorney can speak to you about your case.

See Related Blog Posts:

Higher Penalties for Assisted Living Facilities

Nursing Home Falls Usually Caused By Systematic Negligence

Photo Credit: Nicolas Alejandro Street Photography via Compfight cc

More Claims of Veterans Administration Abuses

In the aftermath of the scandal surrounding the Phoenix, Arizona Veterans Affairs Hospital, more reports of horrendous management that has affected the health and well-being of our veterans have emerged in other places. As discussed in a prior post, the Phoenix scandal involved keeping veterans in need of medical help on a secret waiting list as opposed to an official waiting list because of the serious backlog the facility faced in seeing and treating many of the veteran patients. Because the facility could not meet standards for efficient and timely treatment, rather than have it documented, they kept a secret list to track these veterans and then only transferred the patients to an official list when it was clear that they could be seen within a reasonable time from the moment of placing them on the official list.

Most recently, in light of the news about the Phoenix facility, the Chicago Tribune reported that federal auditors investigated allegations at a Veterans Affairs Hospital near Maywood, Illinois in western Cook County that the facility there also kept secret waiting lists to falsely demonstrate that it met VA regulations on timely treatment. Meeting such standards would ensure senior officials could earn bonuses for the hospital’s performance, which are based in part on the speediness of seeing veteran patients. These particular allegations came to light from a social worker, and also filtered through the local union for federal government employees before reaching the media and federal investigators. The investigation is in its nascent stage, as the allegations remain just allegations, and the whistleblower has not yet brought forward documentation to back these claims out of fear that hospital workers could experience retaliation as a result of the disclosures. Hospital leaders have disputed the allegations at the facility that has seen over 54,000 veterans in the last year, stating that any cited evidence cited (although not presented) does not actually consist of separate waiting lists. VA Inspector General investigators may look into it at the behest of U.S. Senator Mark Kirk of Illinois.

Legal Claims
While investigations into the Phoenix scandal are ongoing, and investigations are only just commencing into the allegations of secret wait lists at the Illinois facility, there will soon come the time for the affected veterans and their families to consider legal action for damages. Plaintiffs would invariably bring these lawsuits under the Federal Tort Claims Act.

The Federal Tort Claims Act (FTCA) generally allows private citizens to sue the United States in federal courts for injuries sustained as a result of a tort committed by someone acting on behalf of the federal government or in their capacity as an employee of the federal government. This is not universal coverage as there are certain exceptions, such as for law enforcement activity. However, those veterans who have not received adequate care as a result of the absurdly long wait time, and those families of veterans who died as a result of not receiving the necessary care, may have actionable cases against the Department of Veterans Affairs for damages caused by its employees’ negligent handling of wait lists, or in this case intentional cover up of that improper procedure. Those who were injured should strongly consider their rights to claims. No one should be treated this way, not least of all the brave men and women that served our country with honor and distinction, and have asked little else of us.

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Secret Lists at the VA

In recent weeks news broke out of Arizona that a Veterans Affairs Hospital failed to follow up with veterans seeking medical care within a required amount of time, and in many situations ignore veterans who needed an immediate check-up, medication, treatment or other assistance. Many of these veterans suffered worse illnesses and some died as a result of not getting the adequate care they needed. It is awful enough how the VA in general has a backlog on serving our brave veterans, who risk their lives to defend our country and deserve our care and concern when they return home, and for the rest of their lives. It was a recently retired physician from the facility who blew the whistle on this scandal to the Arizona Republic after also attempting to go through Congress as well as the VA’s Office of Inspector General.

What is worse in this current scandal, is how this particular Veterans Affairs Hospital in Phoenix maintained “secret waiting lists” that effectively kept secret that these men and women were awaiting medical care. When the facility could forecast that it would be able to see a veteran patient within a certain time that conformed to VA regulations, it would move that person onto the official waiting list for the first time to make it seem as if his or her wait time was adequate and reasonable. This official list is what is reported to the main agency and any other relevant bodies in Washington, D.C., and the Phoenix facility sought to make things appear as if everything was okay. On top of this, they shredded evidence of the secret lists to cover up the failure to adequately care for veterans.

These veterans waited months on end for the care they not only deserve but to which they are also entitled. According to at least one report, between approximately 1,400 and 1,600 veterans had to wait months for their doctor visit. Many died as a result of not being seen or getting the care they needed, with some reports showing that at least 40 individuals died while waiting for doctor appointments at the Phoenix hospital. Top administrators knew about it and did nothing to correct it. Senior officials at the facility were also left in their positions in spite of congressional knowledge and the agency’s Inspector General investigation.

Adding to the outrage is one recent report based on a review of public records from the VA facility in Phoenix that show its staff earned relatively high salaries bonuses. While not yet reported or corroborated by other outlets, the article details how the hospital apparently spent hundreds of thousands on interior and exterior aesthetics around the facility, and high executive physicians make in the mid-$350,000s with some nursing staff making in the mid-$140,000s.

Veterans Affairs Secretary Eric Shineski has vowed to take action on this problem and will not resign. In the meantime, veterans affected by this issue and their families will likely consider legal action at some point. Such action would appropriately come under the Federal Tort Claims Act, which would grant these victims a private right of action against the federal government – specifically the VA – for their actions that has led to more permanent health problems and even death for veterans. In an era where long-term care facilities and nursing homes have committed egregious negligence and abuse against their patients, it is furthermore disheartening that a facility dedicated to treating veterans has similarly committed such wrongful omissions.

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Making Claims Under the Federal Torts Claims Act

In cases of widespread nursing home and long-term care facility abuses and negligence against patient residents, those patients and their families will often have recourse through tort actions for injury under relevant state laws. As previously discussed, there may also be False Claims Act cases to be made where companies operating nursing homes that receive federal dollars through Medicare and Medicaid fail to follow the law, rules or regulations in implementing those funds into their care of the patient residents. Such misuse or fraud of government funds can result in a recovery for the plaintiff and the government. On top of this, patients of a government operated facility, such as a Veterans Affairs hospital, who suffer injury or death as a result of negligence or abuse may bring a claim for damages under the Federal Tort Claims Act (FTCA).

The FTCA is the prime law under which private individuals can sue the government for injuries sustained as a result of the government’s actions or inactions, or those of employees or other individuals working on behalf of the government, such as a VA hospital administrator or doctor. In general, those individuals will not be subject to liability; only the government itself will. In light of the recent reports on the secret waiting lists at the Phoenix VA facility that led to further injury to veterans as well as the deaths of at least 40 veterans, those veterans and their families may very well have the right to sue for damages under the FTCA.

In order to demonstrate liability and a claim for damages under the FTCA, a helpful summary of the law outlines the four elements that must be demonstrated. These generally conform to the requirements in all tort law to show a tort occurred:

(1) Injury or property damage by a federal government employee;
(2) Federal government employee at the time performed his or her official duties;
(3) Federal government employee was negligent or wrongful in his or her acts;
(4) The negligent/wrongful act caused the injury or damage

Any veteran who suffers damages as a result of abuse or inadequate care at a government operated facility (a VA hospital, military hospital on or off base, or a federally supported clinic) and who is not on active military duty is eligible to file a claim. It is notable that under Supreme Court precedent, active duty military members are not allowed to make an FTCA claim since injuries are presumed to be a part of their service, although some in Congress has wanted to give active military access to remedies under the law. This also bars claims by veterans for injuries resulting from negligence committed during their active duty, but which were not symptomatic or apparent until after discharge or retirement from service. Family members of active military are permitted to sue under the FTCA for injuries received from treatment at a government-sponsored hospital, clinic or facility. With regard to government funded clinics, victims of negligence may also have a claim under the FTCA even if the treating physician or nurse were not government employees, because by accepting federal money, the clinic’s employees are unofficially considered government employees for the purposes of the FTCA.

Just as a resident patient of a nursing home can bring claims for injury due to negligence, so can patients at government-operated facilities or government-funded clinics. Such claims are more than likely to arise in the recent Veterans Affairs scandal. In filing this claim, it is important to understand what form you must use, where to file, as well as implications for how such recovery may affect any disability claims you make.

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Senate Bill Could Impose Tougher Penalties

With the serious elder abuse problems in residential care facilities for the elderly (RCFEs) that have been coming to light in recent months, it shouldn’t come as a surprise to California residents that a new senate bill aims to “give California regulators the power to impose tougher penalties,” according to an article in Westport News.

old Guy

What is this legislation?  The bill, SB1153, would provide the California Department of Social Services (DSS) greater authority over care facilities that break the law.  According to another article in the San FranciscoChronicle, the bill would allow the California DSS to “ban new admissions to residential care facilities for the elderly that fail to correct serious health and safety violations.”  And when RCFEs fail to pay their fines, the SB1153 would allow regulators with DSS to “block admissions to facilities.”

California Advocates for Nursing Home Reform (CANHR) have been pushing for a package of more than twelve different bills related to elder care reform, and this is one of them.  It’s being headed by Senator Mark Leno of San Francisco, and it will work in conjunction with other legislation to ensure that California seniors are receiving better treatment at RCFEs.  And when facilities fail to provide proper care, the legislation will give regulators new authorization to do something about the problem.  In this way, the bills aim to prevent bad behavior at RCFEs and to punish bad behavior when it occurs.

What Led to the Proposed Legislation?

If you’ve been following the news about care facilities in California, you likely remember some of the most heinous cases of nursing home abuse and neglect.  For example, the Westport News article cited the “most prominent failure” to date as “the state-ordered emergency closure of Valley Springs Manor in Castro Valley in October.”  In that case, two state inspections failed to identify serious and life-threatening problems at the care facilities, and nineteen elderly residents essentially were abandoned but for the care of two volunteer workers.

According to Leno, the Castro Valley facility is one of the primary reasons for SB1153.  He emphasized that residents continued to move into Valley Springs Manor during the period in which it was under investigation by the state, as those residents had no clear way of knowing that there might have been a serious lapse in care at the facility.  Further, without change to rules governing RCFEs in California, the state’s current ability to fine facilities or to close them just isn’t enough to protect our elderly citizens.

Leno emphasized that the proposed legislation “will protect families and their senior members from going into facilities which could in fact threaten their lives.”  Thus far, there has been no registered opposition to SB1153.

And advocates believe it will do a lot of good in our state.  For example, Patricia McGinnis, the executive director of CANHR, believes that “this ban on new admissions will be taken seriously because it impacts a center’s ability to bring in new, paying residents.”  According to McGinnis, “the lost income will motivate facility owners to correct serious violations and comply with health and safety regulations.”  Regardless of the motivations of those in charge of RCFEs, the proposed legislation is interested primarily in one cause: making care facilities safer for older adults.

Has your elderly parent or loved one been the victim of nursing home abuse?  At the Walton Law Firm, we are dedicated to helping San Diego residents who have been injured at nursing homes and assisted living facilities.  Contact one of our experienced nursing home abuse lawyers today to talk about your case.

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