Illinois Nursing Home Abuse Blog

Protecting Residents From Dangerous Nursing Home Employees

Fri, 24 May 2013 06:06:19 -0600

When families move a loved one into a long-term care facility, they are entrusting the home to provide proper support for their loved one. While these transfers happen every day, they are not easy. Many emotions are tied up in the transfer, and most families would prefer to care for a loved one at home--if they could. Trusting a facility to ensure your family member--husband, wife, mother, father, grandmother--is not neglected is a big step that no family undertakes lightly. That is why reading nursing home ratings, visiting the home, speaking with current residents, and other basic steps are incredibly helpful to ensure you are making the best choice.

Yet, no matter how much due diligence is performed, there comes a point when you simply must trust the facility to do the right thing. More specifically, you must trust the individual employees who work at the home. There are few settings where one individual maintains more power over another as that involving vulnerable seniors in nursing homes and their caregivers. That is why it is incumbent upon owners and operators of these facilities to ensure they recruit only qualified nurses, aides, guards, and others so that residents are not placed at risk.

Far too often, they fail in that duty.

Nursing Home Sexual Assault
For example, NJ.com just reported on th arrest last summer of one former nursing home security guard who is accused of sexually assaulting a disabled resident at the facility where he worked. The residents was a 60-year old woman who suffered several strokes which left her in a wheelchair. In addition, she suffers from epilepsy, dementia, and osteoporosis. Of course, with those medical issues, the senior is completely reliant on her caregivers for even basic day to day aid.

According to the report, the thirty year old guard admitted to the assault. He apparently gave the disabled resident money and cigarettes in exchange for the resident performing oral sex on him. It is exactly the sort of abuse of a power relationship that happens far more than most suspect at these facilities. Obviously in all circumstances it is inexcusable.

The actual assault occurred last year, and his guilty plea came last November. He accepted a second-degree sexual assault conviction, meaning that he must serve at least three years in prison.

As in most of these criminal nursing home cases, the facility itself is also under fire for its conduct which led to the attacks. A civil nursing home abuse lawsuit has also been filed. According to the arguments in that suit, the victimized resident actually told staff members about the assault, asking for help ending the abusive relationship. Yet, apparently even though they were aware of the situation and the resident’s vulnerability--nothing was done. This allowed the guard to attack the resident on multiple occasions.

Fighting Back
The individual caregiver who committed these crimes must obviously face criminal sanctions. But the facility itself must not be let off the hook. Those who operate the home have an obligation to ensure their employees act appropriately at all times. When they fail in that duty, the civil law demands they be held accountable. The hope is that by being forced to compensate the victim for the harm, the facility will change their practices to prevent anything similar from happening again.

See Other Blog Posts:

State Supreme Court Mandates Arbitration in Nursing Home Death Case

Accountability for Failed Response to Nursing Home Abuse

$5.2 Million Nursing Home Negligence Jury Verdict For Delayed Care

Wed, 22 May 2013 06:28:59 -0600

Traditional nursing homes--known as “skilled nursing facilities”--are able to provide a degree of actual medical care at the facility itself. Of course, caregivers provide support--like making meals, washing clothes, help with grooming, and more. But they can also provide more sophisticated treatments. However, there is a limit to the scope of care available in these locations. When a serious medical emergency strikes, it is critical that the seniors in the facility be taken to an actual hospital to receive in-depth treatment or emergency services.

Sadly, there are circumstances when caregivers at a nursing home do not act in a timely fashion to ensure their residents receive the hospital aid they need. That seems to be what happened in a matter which led to a trial that ended last week.

Nursing Home Neglect Jury Decision
As discussed in an Arkansas Times story, the victim in the case was a 76 year old nursing home resident who lived at the defendant-facility in April of 2008. She was only at the home for a pair of weeks. The senior suffered a stroke and was expected to stay for a month-long stint during her recovery. But about halfway through that stay the woman awoke in the night with very severe abdominal pain. She had no bowel movements and was sweating profusely.

A doctor was called the next day to visit her, and after his examination he issued an order that the senior to be taken to a local emergency room. Because the resident had a history of abdominal abscess (as well as the recent stroke), proper care required that she received more advanced medical care than could be provided in the nursing home itself.

Even though the director of nursing received the transfer order from the doctor at 3:34pm that afternoon--she did not take immediate action. Instead, because she was leaving the facility for the day, she faxed a copy of the order to another part of the facility. Sadly, no one went to the location where it was faxed, and the order was ignored.

According to the story, the suffering senior was simply left to sit in her room--even though she was in so much pain that she was screaming constantly. She was making so much noise that other residents complained. A few hours later, around 10:20pm that night, the senior was found in her room--she had died.

A lawsuit was filed by the senior’s family. The case went to trial recently, and the jury issued a unanimous verdict in the plaintiff’s favor after hearing all of the details of the case. They awarded the family $5.2 million after finding the home guilty of negligence, medical malpractice, and basic violations of the rights of residents. It remains unclear if the family will receive the full award, as various arguments were made about the parent company’s immunity from the misconduct of the individual home.

This horrific case of a senior suffering for hours before dying because of an obvious error is an example to why we must continue to fight for the rights of nursing home neglect victims. No one should ever have to go through this agony as a result of basic caregiving lapses.

See Other Blog Posts:

State Supreme Court Mandates Arbitration in Nursing Home Death Case

Accountability for Failed Response to Nursing Home Abuse

State Supreme Court Mandates Arbitration in Nursing Home Death Case

Mon, 20 May 2013 06:13:41 -0600

The Florida Supreme Court recently made it more difficult for the families of wrongful death victims to have their cases heard in court. In February, the Supreme Court unanimously ruled that a mandatory arbitration agreement signed by an elderly nursing home patient extended to, and was binding on, his estate and heirs. Many states refuse to enforce binding arbitration clauses in nursing home contracts, as they can be unconscionably biased in favor of the nursing home, but the justices refused to make such a declaration in this case.

Henry Lee Stewart was a patient in a nursing home operated by Avante at Leesburg, Inc. Upon admission, Stewart signed an agreement with Avante that provided any disputes arising from his care would be subject to binding arbitration. Stewart died a few days later and his family believed the nursing home’s negligence was at fault. The executor of Stewart’s estate, sued Avante in Florida circuit court rather than seek arbitration under the agreement Stewart previously signed.

At Avante’s request, the trial court issued an order compelling Laizure to go through binding arbitration. The Fifth District Court of Appeal affirmed the circuit court’s decision. However, since the question of whether a nursing home arbitration agreement covers a wrongful death lawsuit had never been addressed before in the state courts, the court of appeal asked the Supreme Court to weigh in on the matter.

As noted above, the Supreme Court unanimously agreed with the two lower courts that the binding arbitration clause did apply to Laizure’s wrongful death lawsuit on behalf of Stewart’s estate.

Signing Away the Rights of Heirs and Family Members
Laizure argued that wrongful death lawsuits did not fall within the scope of the arbitration agreement that Stewart signed. The Supreme Court disagreed. Not only did the written terms of the agreement cover any actions arising from the nursing home’s potential negligence, it also provided that its terms covered any heirs or representatives of the parties, such as the executor of Stewart’s estate.

But Laizure maintained the arbitration agreement still could not apply to a wrongful death lawsuit because such a case, by definition, can only be brought by heirs or an estate. In other words, it’s an independent cause of action under state law. There are also separate laws dealing with the rights of nursing home patients. Unfortunately, the Supreme Court said these were not independent causes at all, but rather derivative of any tort suffered by the original victim. There could be no wrongful death lawsuit if Stewart had not been allegedly injured by the nursing home’s negligence. And since Stewart signed away his right to sue in court while he was alive, the Supreme Court reasoned there was no reason not to extend that waiver to his estate.

Don’t Wait Until It’s Too Late
The Supreme Court did not address the merits of the arbitration agreement itself. The lower courts could still find the terms of the agreement unconscionable and therefore unenforceable under state law. But the Supreme Court’s decision should put all families of nursing home patients on alert.

Arbitration agreements are commonplace in business-to-business contracts where both sides have the benefit of legal representation. An elderly, possibly dying nursing home patient is not in a similar position. And if a negligence or wrongful death situation does arise, arbitration puts the nursing home at a tactical advantage by limiting the procedural rights of plaintiffs, such as the ability to conduct discovery. This is one reason nursing homes are eager to enforce such provisions against their patients. That’s why, if you or a loved one has been the victim of improper care, it’s important you speak with an experienced nursing home abuse attorney immediately.

Accountability for Failed Response to Nursing Home Abuse

Thu, 16 May 2013 10:34:08 -0600

Nursing home neglect and abuse lawsuits are guided by state and federal statutes, administrative/regulatory rules, and common law principles. Attorneys working on these cases may draw on any of these in order to ensure proper accountability for nursing home owners, operators, caregivers, and others whose mistakes (or intentional actions) may cause harm to seniors.

Considering the various sources of law, sometimes these legal cases can be quite complex. At times, the basis for accountability is not straightforward. For example, most understand that an individual caregiver can be held responsible when they intentionally harm a senior. However, rules about oversight of those employees may also mean that the operators of a nursing home (or owner/shareholders) may similarly be accountable for the actions of their employees.

In addition, facilities can also be held accountable in various ways not only for the damaging mistakes they make, but also for their response (or failed response) to claims of neglect or abuse. In other words, the poor response itself is a separate form of negligence, on top of the underlying mistreatment.

Citations for Failing to Report Abuse
That principle was in play in sanctions doled out to one facility as reported by the News-Bulletin. According to the report, the facility in question was fined and placed on state-mandated probation as a result of its failure to report neglect allegations and implement changes to ensure abuse is not perpetrated on residents. Importantly, this punishment was not handed down because of the underlying potential abuse, but simply for the failure to follow appropriate steps when made aware of the allegations. The action is a testament to the seriousness that we all place on ensuring proper treatment of seniors.

The particulars of this case are similar to that which exist in facilities throughout Illinois. It seems that at least three seniors may have been physically and verbally abused. Specifically, several members of the caregiving team at the home knew of “intentional rudeness, refusal of care and services, and rough physical treatment of residents.”

Sadly, instead of stepping up and ensuring the problem was fixed, those caregivers turned the other cheek and did not take action.

This inaction occur at nursing homes across the country every day. It is one thing for outside observers to stay mum when they have suspicions of mistreatment. We encourage all those who suspect neglect to say something, but it is understandable that it takes a bit more for an outsider to recognize problems and speak up. Conversely, there is no excuse for an actual caregiver to remain silent when they know that a co-worker is harming residents. The very act of not coming forward is itself an act of neglect that needs to come with accountability. Nursing home abuse should never be swept under the rug, least of all by those best trained to recognize poor care.

The attorneys at our firm have decades of experience vindicating the rights of nursing home residents and their family members. Please get in touch without our team today if you have questions about mistreatment of an elderly loved one close to you.

See Other Posts:

Arbitration Fairness Act of 2013 Introduced in Congress

Levin & Perconti Filed IL Nursing Home Lawsuit Against Applewood Rehabilitation Center

National Nursing Home Week 2013 - Honoring “Team Care”

Tue, 14 May 2013 07:27:49 -0600

This week--May 12th through May 18th--represents the official “National Nursing Home Week.” With many participants, including the American Health Care Association (AHCA), the event is a yearly reminder of the needs of long-term care residents and the terrific work that so many valuable caregivers perform day in and day out. It is easy for those of us working on matters related to nursing home neglect and mistreatment to appear unconcerned with the great work that facilities are able to provide. But on the contrary, because we are so familiar with the many instances of poor care, we are better able to understand the value and service of great care, when it exists.

The theme of this year’s week-long event, according to the AHCA site on the event, is” “Team Care.” In summarizing the event, the site explains that the week is for the residents and dedicated staff who “pitch in for optimal outcomes.” This is a timely theme, as with the complex needs of many seniors, proper communication and shared commitments to positive outcomes for senior residents requires clear coordination between all members of the caregivers process. When too many nursing home employees are forced to go it alone or do not receive the support they need for owners and operators, harm results.

National Nursing Home Week Events
Facilities across the country are participating in the festivities--in big and small ways. The AHCA website, for example, include information that different homes have taken to build their own programs. Some of the events are designed to integrate the facility with the community. That includes inviting those into the who normally do not see it or bringing residents outside to mix with their neighbors.

This also includes ensuring friends and family members are involved as closely as possible with care. Our nursing home neglect lawyers know well that so many seniors who languish in terrible conditions are only brought out of the situation by the vigilance of friends and family members who do not let their suspicions be ignored. Proper “Team Care” goes well beyond paid employees of a home, as loved ones must maintain as close a relationship as possible with those in these long-term care settings so that problems (like bed sores) are caught early-on,before damage develops.

Other aspects of the “Team Care” that some homes are working on include:

* Developing relationships with local elementary schools, to offer seniors and students a chance to mingle, become pen pals, and otherwise learn from one another.

* Inviting community members--elected officials, businesses, non-profit groups--to come to the facility as a service project, performing a specific (i.e. repainting a room or building a garden).

Any facility that is still looking for last-minute participation should head over to the AHCA website to review the provided materials, which include sample press releases, activity lists, and more. Also, for community members, many local skilled nursing facilities may already have plans in place, and so it is worthwhile to contact a local facility and see if there is any way for you to participate as part of the Team Building theme of this year’s official event.

See Other Posts:

Arbitration Fairness Act of 2013 Introduced in Congress

Levin & Perconti Filed IL Nursing Home Lawsuit Against Applewood Rehabilitation Center

Medication Errors in Skilled Nursing Facilities

Mon, 13 May 2013 08:32:08 -0600

Long-term living locations catered to seniors are often referred to as “skilled nursing facilities” (nursing homes) and “assisted living facilities.” The basic distinction between these types of homes is the level of care provided to residents. Assisted living facilities provide only general aid, perhaps with meals, cleaning, laundry, and other day to day tasks. Conversely, skilled nursing facilities can provide actual medical care. Seniors with more serious health care issues usually need the support that is provided at a traditional nursing home instead of an assisted living facility.

However, the fact that skilled nursing facilities are able to provide some medical care also means that they may commit medical malpractice. One of the most common ways this happens is when nurses and aides make errors with regard to medication. Obviously many seniors in long-term care facilities rely on the various medications to help control different medical issues. When medication is not provided properly, serious harm can result.

A recent Legal Examiner story touched on that very issue. The article points to a study that we have referenced before from the Journal of the American Medical Informatics Association. That research project found a significant number of medication problem in nursing homes. As noted, the most eye-popping statistics from the research effort is that observers identified that about 21.2% of all dispensals of medication involved some error.

This is an alarming statistic on its face. There is simply no excuse for more than 2 out of every 10 cases of medication being provided to come with some error. Most regulatory agencies have caps on the amount of medication error levels that long-term care facilities are required to fall below. That rate is usually around 5 percent, which means that many facilities are not coming close to those standards. When a large number of facilities cannot meet common-sense safety benchmarks, we have a real problem.

Nursing Home Wrongful Death
Seniors are in nursing homes specifically because they have medical vulnerabilities. That means that mistakes related to their care can have more far-reaching impact than if the same mistake struck a younger, healthier individual. Caregivers know this, which is why they are required to act appropriately at all times to minimize the risk of preventable harm.

Sadly, that frequently does not happen, and lives are literally lost as a result. When that occurs, a nursing home wrongful death lawsuit may be filed to demand accountability. In the past these suits have been pursued for any number of errors, including giving the wrong medication to the wrong patient, providing the wrong dose to a resident, or forgetting to provide a critical medication at all.

In fact, the Legal Examiner story points to one Illinois case from earlier this year where a senior allegedly died as a result of a deadly medication combination. Neither the woman’s nursing home caregivers or doctor caught the problem, leading to her untimely and preventable death.

If a loved one that you know may have suffered ill-effects as the result of medication problems in a nursing home, please get in touch with our elder neglect attorneys to see how we can help.

See Other Blog Posts:

Arbitration Fairness Act of 2013 Introduced in Congress

Levin & Perconti Filed IL Nursing Home Lawsuit Against Applewood Rehabilitation Center

Arbitration Fairness Act of 2013 Introduced in Congress

Fri, 10 May 2013 06:52:57 -0600

The fight to preserve everyone’s ability to make a case in front of a judge or jury continues. In the nursing home context, following elder abuse or neglect, one of the biggest impediments to that right is the use of confusing and unfair mandatory arbitration clauses in nursing home admission contracts.

There have been many legal battles over this issue in recent years. Some of those arguments occur in courtrooms while others are taking place in legislative halls. The recent court battles usually involve more detailed issues about contract principles--who signed, who is bound, and whether or not many factors in the creation of the contract violated fairness principles. In general, state and federal courts have upheld these agreements on occasion but also found that under certain circumstances they can be thrown out.

The fight at the legislative level is usually more sweeping, involving proposed laws that would affect many different cases. For example, this week a new federal law was proposed in Congress known as the Arbitration Fairness Act of 2013. As discussed by the American Association for Justice, the new law seeks to end the abusive practice of so many large corporations, including nursing home conglomerates, that seek to insulate themselves from legal accountability with forced arbitration. As the AAJ summarized, the law is critically needed, because when it comes to arbitration, “The process is secretive, costly and rigged so that corporations cannot be held accountable. By removing access to justice, it grants corporations a license to steal and violate the law.”

The Proposed Legislation
The Arbitration Fairness Act would end these practices. Specifically, the law bars the use of forced arbitration in all consumer, employment, civil rights, and anti-trust cases. Arbitration could still be pursued in these cases but only if it is actually voluntarily entered into by the parties--not in take-it-or-leave it situations clouded in fine print.

The law was introduced in the Senate by MN Senator Al Franken and in the House by GA Rep. Hank Johnson. So far 17 other Senators and 22 House members have signed on as co-sponsors.

However, considering the party split in Congress, the actual passage of the law faces an uphill battle. While it likely has a better chance of making it out of the Senate, it would take surprising changes for the full House to consider and pass the bill. Similar legislation has been introduced in recent years without passage. But that does not mean that the measure this year should not be promoted. The more information we share with other community members about the dangers and the need for arbitration reform, the better.

Protect Your Rights
The Chicago nursing home abuse lawyers at our firm urge all Illinois residents to be vigilant about the documents signed upon admission. If you are presented with a mandatory arbitration agreements, refuse to sign it. Considering the frequency with which neglect occurs and the severe harm that it may cause, it is never a good idea to give up you or your loved one’s right to a fair legal hearing via the traditional process.

For help understanding any of these issues following your own experience with elder abuse, please contact the nursing home neglect lawyers at our firm at any time.

See Other Blog Posts:

Nursing Home Industry Continues to Insulate Itself from Civil Accountability

U.S. Supreme Court Will Not Overrule Illinois Nursing Home Arbitration Case

Levin & Perconti File IL Nursing Home Lawsuit Against Applewood Rehabilitation Center

Wed, 08 May 2013 06:00:12 -0600

Bed sores are one of the most well-known signs of inadequate nursing home care. When residents do not receive attentive aid over a period of time, these skin breakdowns may develop, causing serious injury, pain, and (in some cases) contributing to the death of a senior resident. Elder caregivers must be well-versed in these pressure ulcers, understanding how they develop and what needs to be done to make sure they are properly treated. If nursing home caregiver fail in this regard, then the civil law may allow the senior (or their family) to seek legal accountability.

Illinois Bed Sore Lawsuit
That is exactly what is happening in a new nursing home neglect lawsuit filed by our legal team at Levin & Perconti against the Applewood Rehabilitation Center in Matteson, Illinois. We are representing a family in the legal matter whose 81-year old senior relative passed away in January 2012 after a stay at the facility.

The senior first entered Applewood in November of 2011 after a serious stroke that paralyzed the right portion of her body. As often happens with those who suffer a stroke, the senior’s paralysis made it impossible for her to conduct basic maneuvers like shifting in bed, moving weight from one part of her body to another. These mobility challenges are a key factor in the development of pressure sores. The caregivers at Applewood knew this, and the senior was documented as “at-risk” for developing pressure sores upon her admission.

That documentation should have meant that caregivers took proper steps to prevent the development of sores--repositioning, proper nutrition, adequate hydration, etc.

Sadly, they failed in that regard. A little over a month after arriving at the facility she was brought to a local hospital. Once there she was diagnosed as suffering from dehydration. In addition, medical professionals discovered several bed sores, including one that was of the most serious variety (Stage IV) on her sacrum. These complications led to her death the following month.

The family eventually sought the aid of our Illinois bed sore lawyers. We recently filed suit on their behalf in the Circuit Court of Cook County. In summarizing the situation, our senior partner Attorney Steve M. Levin explained, “Our suit alleges that once she developed bed sores, staff should have notified her physician and family and then taken steps to prevent them from getting worse. Unfortunately, staff failed to do so, and their negligence contributed to her tragic death less than a month after leaving the facility.”

Levin went on to explain how these sorts of neglect cases are often spurred by management decisions at the facilities in question. For example, understaffing remains a serious problem when owners and operators do not devote the resources necessary to provide the care residents’ need in order to maximize their bottom line. When that happens, even the most well-meaning front-line care-workers are unable to provide the time, attention, and support they they would like to each resident. As a result of prioritizing profits over resident, many seniors suffer needlessly.

See Other Posts:

Nursing Home Industry Continues to Insulate Itself from Civil Accountability

U.S. Supreme Court Will Not Overrule Illinois Nursing Home Arbitration Case

Levin & Perconti Attorneys Discuss Illinois Nursing Home Care Act In Law Bulletin's Law Day Publication

Mon, 06 May 2013 08:37:50 -0600

For decades the Illinois nursing home abuse lawyers at Levin & Perconti have aided local seniors and their families following nursing home neglect. While there is slowly a growing awareness of the real need to address the rampant nature of nursing home mistreatment (thanks largely to demographic changes), we still have a long way to go before nursing home residents are treated as well as possible in all locations.

Legal accountability following preventable harm is one of the key ways to improve overall care. If poor care is a financial negative for these owners and operators, then they are far more likely to do what it takes to raise standards. It is partially with that idea in mind that the state of Illinois has a law known as the Illinois Nursing Home Care Act. The statute outlines how private community member can hold nursing home accountable for their poor care--it is a critical legal protection for all Illinoisans. Our attorneys frequent protect resident rights based on the provisions in this law.

Recently, two of our attorneys contributed to an article published in the Law Bulletin’s “Law Day” publication discussing the nature of the Illinois Nursing Home Care Act. You can download the full article in .pdf form by clicking here.

Understanding the Illinois Nursing Home Care Act
In the story, attorneys Steve M. Levin and Margaret P. Battersby Black discuss the most recent changes to this law. Their article analyzes the impact that those changes will have on civil litigation related to nursing home abuse and neglect in Illinois.

In particular, the story takes a look at a 2010 modification to the law that alters the definition of “neglect” such that more instances of inadequate care may result in legal liability. Essentially, the change eliminates the need to prove that failure to provide care caused injury by expanding the definition to include instances where injury did not directly result.

In addition, there is a “fee shifting” provision in the new law. This means that, if liability is found, then the defendant nursing home is required to pay for costs and attorneys fees. In general, all costs and fees are borne separately by each party in a lawsuit, regardless of the outcome. By changing the rules in these cases, private attorneys are now able to pursue worthy cases where clearly inadequate care is provided, but compensable injury is minimal or non-existent.

For example, in cases where basic care like bathing, nutrition, etc. is not provided, it may be difficult to show injury that would result in economic harm. Because these cases are taken on a contingency fee basis, without the possibility of clear injury it is usually difficult to pursue these worthy matters. However, by shifting the obligation of attorney’s fees onto defendants, private attorneys will more readily take on meritorious cases of obvious neglect, even if specific harm cannot be proven or has yet to occur. In many ways it is helpful to think of this change as allowing for more preventative liability--savings lives by not requiring severe injury before demanding accountability.

See Other Blog Posts:

Nursing Home Industry Continues to Insulate Itself from Civil Accountability

U.S. Supreme Court Will Not Overrule Illinois Nursing Home Arbitration Case

Nursing Home Industry Continues Push to Insulate Itself from the Civil Law

Fri, 03 May 2013 06:41:55 -0600

Fairness does not seem like that difficult of a concept to grasp. After all, that is essentially what the justice system is all aboard--creating an environment where two sides with a disagreement to have the matter resolved in as fair a way as possible. Rules are intended to apply equally to both sides, and decisions decided by a neutral third party (if not settled by the parties themselves first).

That is certainly how is is supposed to work when it comes to nursing home neglect cases. A resident or family claims that negligent care was provided, and they are able to provide evidence to back up their claims in court while the facility is able to offer counter-evidence. A neutral third party--often a jury--is able to weigh the evidence and make a decision. Seems fair, right?

Sadly, the nursing home industry does not seem to care that much about fairness. At both the state and federal level lobbyists for the industry are working to change the legal rules--tilting them in their favor and away from individual residents and their families. Of course, individual community members cannot afford to pay high-profile lobbyists to protect their rights. That makes it incumbent upon all of us who care about proper nursing home care and the legal rights of elder neglect victims to stand up and make noise whenever policymakers are seeking to change rules yet again in violation of basic rules of fairness.

Punitive Damage and Liability Standards
That is exactly what seems to be happening down in Florida, as state lawmakers are considering passage of a law that changes the legal rules to make it harder for nursing homes to be punished when they provide inadequate care that harms residents.

In particular, as discussed in Tampa Tribune article from late April, the state may raise the standard regarding what a party must show before a jury may award punitive damages against the facility. Punitive damages are those awarded irrespective of economic or noneconomic damages to the specific plaintiff. Instead they are based on actually punishing the facility for their egregious conduct.

Per the proposed law, plaintiffs would now be required to show “conclusive evidence of abuse” or “severe misconduct.” Lawyers working on these cases know what these small changes actually mean--nursing homes will be virtually completely shielded from punitive liability. That is not because they do not cause severe harm, but because meeting the evidentiary standard is virtually impossible in most cases.

The Tribune editorial on the matter--in which they call for the bill to be defeated--summarized one key problem: “Under the bill being proposed, only nursing home owners found to have ‘actively and knowingly participated in intentional misconduct’ would be liable for punitive damages. That would reward an owner’s ignorance of their own operations.”

The bottom line cannot be repeated enough: Nursing homes should not be allowed to hide from legal responsibility for their poor care by changing the rules. No one who values fairness should stand idly by while these powerful interest force through dangerous legislation that does nothing more than allow negligent senior care to perpetuate without accountability.

See Other Posts:

U.S. Supreme Court Will Not Overrule Illinois Nursing Home Abuse Case

Nursing Home Bed Rail Safety Petition to CPSC

U.S. Supreme Court Will Not Overrule Illinois Nursing Home Arbitration Case

Wed, 01 May 2013 06:40:22 -0600

Most legal issues related to nursing home abuse and neglect are state cases. In general, injury matters are rooted in basic negligence that is heard in state court, unless there are unique issues involved or parties from different states. One of those unique issues which has actually led to federal court decisions in recent years relates to arbitration.

We have frequently discussed how binding arbitration agreements are often snuck into nursing home admission forms. These agreements may require a family to use a separate arbitration process to resolve disputes--including those for neglect and abuse--instead of filing a lawsuit and being heard in the traditional manner. The procedural rules are different in arbitration, and it is a process that is generally far more favorable for the nursing home company--that is why they like it.

Over the years, there have been various legal cases challenging the validity of these mandatory arbitration agreements. Those cases have made various arguments as to why specific agreements are invalid as well as why all such agreements should not hold. Some of those suits were made in state courts, while a few have been heard by federal judges.

Sometimes cases are first heard through the state system and then appealed to the federal Supreme Court. That is what happened in one high-profile Illinois nursing home abuse case involving an arbitration agreement. McKnight’s Long-Term Care News recently reported on the developments in that case.

Illinois Arbitration Agreements
In the case, a daughter sought to hold the nursing home where her mother lived accountable for neglect which she claimed led to her mother’s death. After filing the suit, the nursing home sought to enforce an arbitration agreement. The agreement was signed by the daughter (as her mother’s representative) during the admission process. Eventually, the daughter’s attorneys countered that the daughter herself was not bound by the agreement, because she did not sign for herself--only her mother. Therefore, the daughter was able to bring a traditional lawsuit regardless of the arbitration agreement, because she was bringing the suit in her own name.

That legal issue was argued up to the Illinois Supreme Court. Our high court agreed that the daughter was not bound by the agreement, and the suit could proceed. Not giving up, the defendants in the case appealed the state court case to the U.S. Supreme Court. This option is not always available--some federal issue must usually be at issue in the case.

In this matter, the defendants claimed that a federal law--the Federal Arbitration Act--expressly forbade state rules, like those here in Illinois, from disallowing arbitration agreements in this way. Essentially, in this case the agreement did not apply because Illinois finds that wrongful death claims are separate legal actions than related claims connected to the same abuse. Because they are a different cause of action, they are not bound by limits which might be imposed on the individual physically harmed in their own suit. Other states have different rules.

As McKnight’s reported recently, the U.S. Supreme Court has refused to hear the case. That ends the options from the defendant’s, leaving the Illinois Supreme Court ruling in place.

This is a positive steps for Illinois residents and others who may be affected by nursing home neglect.

See Other Blog Posts:

Nursing Home Bed Rail Safety Petition to CPSC

The Many Faces of Illinois Nursing Home Abuse

Nursing Home Bed Rail Safety Petition to CPSC

Mon, 29 Apr 2013 07:11:56 -0600

Seniors in nursing homes face a mountain of physical, mental, and emotional challenges each and every day. That is why caregivers are there to provide around-the-clock support. On one hand, many resident’s own health is troubling, requiring special equipment to breathe, move, and otherwise complete daily tasks. On top of that, even simple functions--like laying in bed for a night’s sleep--come with injury risks that healthier community members do not face.

One might think that nothing could go wrong when a senior resident is lying in bed. That must be the safest place for them, right? They avoid the risks of wandering or altercations, can be monitored easily by aides, and otherwise do not face any dangers. Not quite. For one thing, a roll off the bed could prove fatal for a resident with frail bones and weaker recovery systems. To prevent falls, many facilities use “bed rails.” These are metal bars placed on the sides of beds to prevent rolling off. But over the past few years, more and more question marks have been raised about the inherent dangers that these rails themselves pose for seniors.

All of this has led many activists to push for stricter standards on the design, manufacture, and use of these rails. Recently, many of those activists, including our team of nursing home neglect lawyers in Illinois, signed a petition urging more action by the United States Consumer Product Safety Commission (CPSC).

Click Here to view and sign.

Bed Rail Injury Prevention
As explained in a recent call to action from the Consumer Voice, the petition calls on the CPSC to “take all necessary action to protect consumers--including a ban on adult portable bed rails.” Alternatively, the call urges the agency to at least require mandatory safety standards. Right now, it is seemingly a free-for-all, with a variety of bed rails being developed and used, many which are very old and dangerously designed.

Sadly, in an attempt to prioritize profit over resident safety, many facilities continue to use whatever is cheapest or does not require them to buy safer products. This results in many vulnerable seniors laying in beds with dangerous traps awaiting them on each side with a false roll.

As we have reported frequently, bed rails can cause serious harm--usually from entrapment and asphyxiation. When a vulnerable senior rolls into one, they may become caught between the metal rail and the mattress. Even simple actions like dislodging oneself from that spot can be impossible for an ailing resident. When not corrected in time by aides, this can cause serious harm, or even suffocation of the resident. Many injuries and deaths have been reported over the years in just this way. In fact, the Consumer Voice reports that as many as 150 seniors may have died and another 37,000 injured as a result of nursing home bed rails in the last ten years alone.

Seniors deserve better than lazy use of “safety” equipment that actually causes them more risk than it protects. We urge to CPSC to take action to spare significant suffering from future elderly nursing home residents.

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Nursing Home Illness Caused By Mattress Infection

The Many Faces of Illinois Nursing Home Abuse

Nursing Home Illnesses Caused By Mattress Infection

Thu, 25 Apr 2013 08:08:19 -0600

Seniors in nursing home are in a fragile state of health. Sometimes nursing home providers will use that to argue that subsequent injuries or illness that residents contract are expected and unpreventable. In most cases that is nothing more than an excuse. The truth is that the resident’s medical vulnerabilities are the very reason why they are in the home to begin with, and the reason why care providers need to be incredibly vigilant about controlling all of the risk factors to allow the senior to remain in as good a condition as possible.

When proper care is not provided, it may be a sign of nursing home neglect, and residents and their families may be able to seek legal accountability. In many cases, the root neglect is in the action (or inaction) of care providers--like failing to monitor a change in condition or not providing supervision which leads to a fall. In other cases, the underlying issue is more complex, perhaps involving use of defective or dangerous products in resident care.

Dangerous Mattress Covers
For example, the U.S. Food and Drug Administration (FDA) recently issued a safety alert on some products that may be used in nursing homes, leading to illness and death: infection-riddled mattress covers.

The alert was directed at long-term care providers, nurses, doctors, aides, and others who have control over the care setting of medical patients and skilled long-term care residents. The Administration explained that they wanted to warn these individuals that “damaged or worn covers for medical bed mattresses can allow blood and body fluids to penetrate medical bed mattresses, posing a risk of infection to patients.”

As with so many medical objects, the mattress covers themselves are intended as a safety tool--to prevent substances and fluids from seeping into the core of the mattress. Yet over the past few years, the FDA has received hundreds of reports where the mattress covers failed in that role, allowing infected substances from making their way onto the mattress. This was usually caused by tears in the cover, a thinning of the material or improper use, with exposed portions or opening near the zipper.

All of this exposing the individual using the bed, like nursing home residents, to infection risk because of coming into contact with the body fluids of another. Considering seniors inherent vulnerability, those subsequent infections can be life-threatening. Because this risk is known, it is critical for caregivers to ensure these cover defects are caught and senior residents are not placed in risk situations.

The FDA safety alert includes a list of recommendations that caregivers can use to ensure that the covers do not pose a risk. In addition, the Administration includes contact information where others can report concerns and problems with mattress cover use.

Chicago Nursing Home Neglect
Providing inadequate care to local nursing home residents should never be tolerated. However, our neglect attorneys know that it happens every day in Chicago and throughout state of Illinois. The problems can range in scope from outright abuse to sloppy caregiving--like the use of defective mattress covers. If you suspect such care at a nearby facility, please don’t stay silent. Stand up and demand accountability.

See Other Blog Posts:

Illinois Nursing Homes & Special Focus Facility List

Defending Against Nursing Home Arbitration Clauses

The Many Faces of Illinois Nursing Home Abuse

Tue, 23 Apr 2013 07:24:04 -0600

Statistics are thrown around repeatedly about the prevalence of nursing home abuse: how often it occurs, where it occurs, and who it affects. The main take away from those stats is clear: mistreatment of the elderly remains far too common.

Every once in awhile it is important to step back and remember the different facets of that mistreatment. Nursing home abuse or neglect can take many forms. Below are several categories of abuse and signs of these types of abuse:

Neglect. Elder neglect is the failure to fulfill a caretaking obligation. Withholding food and necessary medical treatment are examples of elder neglect. According to the National Ombudsman Reporting System (NORS), gross neglect constitutes 14% of nursing home abuse complaints. Signs of gross neglect may manifest as physical injuries and include unusual weight loss, malnutrition, dehydration, unsanitary or unsafe living conditions, untreated physical problems, and being left dirty or unbathed.

Physical abuse. Physical abuse is the intentional use of force resulting in physical injury or pain. Shoving, hitting, and inappropriate uses of restraints are examples of physical abuse. NORS data shows that 29% of nursing home abuse complaints involve physical abuse. Signs of physical abuse include unexplained marks and bruising, broken eyeglasses, report of drug overdose or failure to take medication, bedsores, broken bones, marks from restraints, sudden weight loss, and dehydration or malnutrition.

Emotional abuse. Emotional abuse occurs when nursing home staff speaks to or treats elderly patients in a way that causes psychological pain or distress. Threats, humiliation, habitual blaming, and isolating an elderly person are some examples of emotional abuse. Psychological abuse comprises 21% of nursing home abuse complaints according to NORS data. In addition to personally witnessing verbal emotional abuse, emotional abuse may be present when an elder is fearful around certain people, is visibly depressed or angry, or exhibits symptoms similar to dementia, such as rocking back and forth and mumbling.

Sexual abuse. Sexual abuse is non-consensual contact of a sexual nature with an elderly person. Unwanted physical sex acts are an example of sexual abuse, but elder sexual abuse may also include showing an elderly person pornography, or forcing the elder to undress. According to NORS data 7% of nursing home abuse claims involve sexual abuse. Some signs of sexual abuse include bruising around the breasts or genitals, torn, stained or bloody underwear, unexplained sexually transmitted infections, and unexplained vaginal or anal bleeding.

Financial fraud and exploitation. Financial exploitation occurs when there is an unauthorized use of an elderly person’s assets. This can include forging checks, identify theft, and stealing cash. Financial exploitation is the basis for 7% of nursing home abuse claims according to the NORS data. Signs of financial abuse can include new loans or mortgages, revisions to wills, deeds or trusts, and unusual recent withdrawals from banking accounts.

Healthcare fraud and abuse. Healthcare fraud is a growing concern as the cost of healthcare skyrockets. Unethical practices carried out by medical and professional care providers can result in serious physical and financial injury. Some practices include failing to provide health-care that’s been charged, overcharging, receiving kickbacks, over-medicating or under-medicating, medicaid fraud, and recommending improper medical treatment.

If you suspect that a loved one may have suffered any of these, please contact our Illinois elder neglect attorney today to learn how we can help ensure accountability.

See Other Blog Posts:

Illinois Nursing Homes & Special Focus Facility List

Defending Against Nursing Home Arbitration Clauses

Nursing Home Mismanagement - Mishandling Abuse Claims

Mon, 22 Apr 2013 07:12:29 -0600

Honesty is always the best policy. That is true is so many facets of life, from politics and family relationships, even to things like nursing home care. Nursing home residents and their families do not expect perfection when it comes to long-term care giving. But they do expect a commitment to providing the best care possible and openness if any sort of adverse event occurs. Time and again, however, nursing home owners and operators not only fail to ensure elder neglect is prevented, but they try to cover up their errors or sweep problems away.

This should never be tolerated.

State regulators in Illinois and throughout the country appreciate that ensuring proper response to adverse events--falls, development of pressure sores, outright abuse--is just as important as preventing the problem itself. In other words, not only should things like pressure sores be prevented, but facilities must be required to act in a timely fashion to report the sores and otherwise make relevant parties aware of the problem.

Sometimes there may be perverse incentives to do otherwise. For example, with pressure sores, many nursing homes may be tempted to hide the problem for as long as possible, fearing the consequences of their discovery. This only leads to further suffering for the resident.

All of this is why there need to be severe consequences for failing to prevent the mistreatment and not being forthright when troubling situations arise. The lives of nursing home residents can be made better by placing emphasis on exposing cover-ups and punishing those facilities who try to hide ill-events.

Failing to Report Sex Abuse
Take a recent report from the News-Journal Online. The story discusses a $36,000 fine against a nursing home for their failures to properly respond to a sexual abuse claim. The allegation was first made about a year ago. According to the story, a resident at the home told caregivers that she saw an employee at the facility climb into bed with her roommate. The roommate denied the suggestion. However, state rule required the facility to at least report the claim so that proper investigatory protocols could be followed. The facility did not say anything. This resulted in a $45,000 fine that was eventually reduced to $36,000.

Are the allegations of sexual abuse accurate? It is impossible to say, because the facility did not engage in due diligence to notify regulators and investigate. The fine itself is based on the problems with the response to the claims themselves, let alone the potential merit of the abuse allegation.

It is perhaps unsurprising that this facility does not have the best track record when it comes to providing superior care to seniors. The news article points to the facility’s CMS rating, noting it only receives two (out of a possible five) stars in overall quality of care indicators. The poor review from federal officials is based in large part on below average health inspections. Those inspections revealed excessive medication errors, poor nutrition standards, and deficient infection-control measures.

See Other Blog Posts:

Illinois Nursing Homes & Special Focus Facility List

Defending Against Nursing Home Arbitration Clauses