Illinois Nursing Home Abuse Blog

Hidden Cameras in Nursing Homes Raise Privacy Concerns in Illinois

Wed, 19 Jun 2013 06:45:04 -0600

Hidden video cameras are an effective tool in exposing instances of nursing home abuse or neglect and in monitoring the treatment of loved ones in these facilities. There have been many instances where recording devices have helped family members discover that the staff was providing negligent care or committing elder abuse. One recent case involved a nursing home employee hitting and taunting a resident who lay in bed. When such mistreatment occurs, video recordings provide powerful evidence of poor treatment that can lead to staff members’ being fired and can be used in a nursing home lawsuit or criminal prosecution.

However, the use of hidden cameras or other recording devices in a nursing home raises privacy concerns. Is it legal for a nursing home resident or family member to use these surveillance techniques? The short answer is yes, it is legal to use a hidden camera to catch neglectful or abusive nursing home employees. Still, it is important not to violate privacy laws while using these recording devices to prevent or expose elder abuse.

There are legal limits on how hidden cameras can be used to monitor the behavior of staff members in nursing homes. In Illinois, it is illegal to listen to or record a conversation unless everyone in that conversation has consented to the recording. Because of this law, it is important to make sure that your camera records video but does not record sound. You should also make sure that either your loved one or his or her legal guardian has consented to the use of a recording device. Otherwise, your Illinois nursing home attorney may not be able to use that video recording in your lawsuit as proof of abuse or neglect. You could also be at risk for criminal penalties for violating Illinois law.

In response to the growing use of hidden cameras to catch employees who commit nursing home abuse or neglect, some states have enacted or have introduced laws specifically addressing video monitoring of nursing homes. These laws explicitly allow residents or their family members to install recording devices. Any video acquired from these devices may be used in a criminal prosecution or in a lawsuit for nursing home neglect or nursing home abuse. The laws also prohibit nursing home staff from tampering with or removing these recording devices. In addition, nursing homes are not allowed to reject prospective residents or remove current residents who wish to use a recording device.

Illinois has not yet passed a law that addresses video surveillance in nursing homes, but there are still ways to legally use recording devices to deter or catch neglectful or abusive nursing home staff. Our experienced nursing home lawyers know that elder abuse happens in facilities in our area every day and that in many cases, these practices go unnoticed and unpunished. Used lawfully, video cameras can be a powerful instrument to help prevent the mistreatment of residents and to hold accountable businesses and employees who commit nursing home abuse or neglect.

See Our Related Blog Posts:

Criminal Charges in Elder Abuse Case
Ten Year Sentence for Nursing Home Abuse Caught on Tape

Proposed Changes for Long-Term Care Ombudsman Programs

Mon, 17 Jun 2013 15:07:00 -0600

Nursing home residents are some of the most vulnerable members of the community. Because of a range of mental, medical, and physical issues, each is reliant on caregivers for many of their most basic needs. It is little wonder then that nursing home residents have difficulty advocating for their interests in the public sphere. While the nursing home industry itself has strong lobbying groups and organized efforts to press for their interests at local, state, and federal levels, the residents who rely on quality care being provided by that industry usually does not.

That is where Long-Term Care Ombudsman (LTCO) Program fill in the gaps. These programs have been around for about forty years, The idea is that these programs--run in each individual state, including Illinois--would represent the interests of individual residents. The LTCO would help press for accountability in issues between the resident and facility as well as advocate for the public policy interests of the residents. Over the last few decades thousands of volunteers have worked within the program to ensure proper care for residents, including demanding accountability in cases of nursing home abuse and neglect.

Elder Advocacy for the Future
The need for strong LTCO programs is growing as demographics change and the nation ages. Advocates agree that as more seniors move into nursing facilities, the instances of mistreatment, neglect, and intentional abuse will similarly rise. As a result, LTCO programs might need to be reinforced so that they can serve in an expanded role and protect the rights of residents.

To ensure these programs are able to meet the needs of seniors in the future, many different involved parties requested more concrete rules from federal administrative offices. The hope is that specific guidelines and structure to the programs will ensure that the current scattered quality of LTCO programs nationwide will become more uniform and effective.

Toward that end, the U.S. Department of Health and Human Services recently issued a notice of proposed rulemaking to discuss possible topics to strengthen the LTCO program. The press release discussing the situation can be found here.

A variety of issues are being considered in the proposed rules. They include clarification of each representative's’ responsibilities, a uniform way to resolve complaints from residents, examination of possible conflicts of interest, and more. A more detailed examination of the changes can be found here.

The office encourages public comment on the proposed changes. Public comments will be open for 60 days after the publishing of the rule. It is at this time where all concerned advocates can voice their concerns or offer support.

Our attorneys work on elder neglect and mistreatment cases. We are fully aware that lives literally hang in the balance when it comes to demanding quality care at Illinois nursing homes. We understand that it is critical for LTCO programs to be pervasive, ensuring resident needs are respected for decades to come. If someone you know may not be receiving quality care at a long-term care facility, feel free to get in touch without our office to see how we can help.

See Other Blog Posts:

Nursing Home Employee Criminally Charged with Falsifying Records

Insurance Complications in Deadly Nursing Home Fire Case

Nursing Home Employee Criminally Charged with Senior Neglect and Falsifying Records

Fri, 14 Jun 2013 06:17:07 -0600

Obviously all nursing home residents deserve to receive quality care every day that keeps them safe from harm. However, there are times when caregivers will, unintentionally, make mistakes. Like any other human, a worker may accidentally fail to check on a resident, forget a medication, or make a similar blunder. When that happens, if harm results, it is only reasonable for those responsible to pay for the consequences of the error. That is not necessarily a permanent condemnation of the individual who made the mistake--it happens. But none of that changes that the fact that all of us--from doctors and nursing home workers to care drivers and lawyers--are responsible for the results of our actions, regardless of our intentions.

In an ideal world those responsible for accidents in nursing homes would immediately admit the error, explain the situation, and do whatever possible to make it right. Sadly, that sort of openness and honesty is rare. Instead, many caregivers (and owners and operators) engage in the exact opposite conduct; doing everything in their power to avoid any and all accountability.

Far too many in this situation refuse to share information, make up excuses, point blame elsewhere, and otherwise fail to be forthright. This usually acts as a second blow to nursing home residents and their family members who are simply trying to understand what happened.

A recent story reported in the Daily Voice describes one such situation. It is a testament to the lengths that some nursing home operatives will go to cover up their errors and seek to protect themselves at all costs.

According to reported a 73-year old nursing home patient went missing from the facility about two and a half weeks ago. Yet, when he was first identified as missing the head of the facility failed to call authorities. Obviously calling in professionals is necessary when a senior leaves the facility and is alone outside without protection.

The nursing home head did even more. In addition to failing to call authorities, she instructed her staff members to make up a story about the situation. A colleague of her’s was asked to tell police that the senior’s left on his own--even though others warned him to stay. All of this was on top of the woman’s removing medical records from that senior’s file.

These intentional misdeeds made in an attempt to cover-up the situation all came to light during an investigation of the senior’s disappearance. Eventually the attorney general actually filed a criminal complaint against the employee. She now risks up to four years in prison if convicted of first-degree endangering the welfare of an incompetent person and two misdemeanor counts of willful violation of health laws.

While actual criminal charges following the obstruction like this is rare, the idea of covering up a problem instead of admitting error is not. Because these facilities are usually not forthright about the causes of accidents, most families in these situations need to contact experienced nursing home neglect attorneys for advocacy. It is often the only way to truly get to the bottom of a situation.

See Other Blog Posts:

Insurance Complications in Deadly Nursing Home Fire Case

Nursing Home Faces Another Lawsuit After Wandering Death

Insurance Complications in Deadly Nursing Home Fire Case

Wed, 12 Jun 2013 06:42:56 -0600

Sometimes defendants--or possible defendants--in various legal cases are referred to as “judgement proof.” This does not mean that their fault in an accident cannot be proven. Instead it means that the defendant has no way to pay for any liability anyway, and so spending the time and significant expenses to pursue the case is usually moot. It makes no sense to spend resources securing a judgment that one will never be able to collect on anyway.

Obviously judgment proof defendants can be a significant problem, because they usually lack the incentive to act properly in all cases to prevent negligence which causes accidents. To combat this, in different setting people are required to have insurance. The most obvious example of this is car drivers. Recognizing the high risk of accidents and the need for those responsible to pay for the consequences of their actions, drivers are required to have insurance, essentially to guarantee that they are not judgement proof.

Insurance & Nursing Home Neglect
Many have made calls for the same steps to be taken with regard to nursing home care. If a facility does not have any liability insurance, then it is usually impossible for them to pay for the consequences of potential negligence that harms patients. This often results in facilities avoiding judgement and operating with less care. Injured residents and their families see no recourse. Legislation has been proposed in Illinois to change this and require Illinois nursing homes to carry liability insurance. However, thus far the nursing home lobby has been strong enough to defeat the bill

Making matters even more complicated, even homes that have insurance are grossly underinsured, making it very difficult to secure full recovery in even the most tragic cases. This was illustrated in developments in a tragic case stemming from a nursing home fire.

A tragic fire struck a nursing home in 2003 that took the lives of 16 residents. Those families filed a nursing home neglect and wrongful death lawsuit seeking accountability for various actions on the facility’s part which led to the fire and subsequent deaths. The arguments explained that the facility was negligent in failing to supervise a resident who set her bed on fire while playing with a cigarette lighter.

Since the tragedy ten years ago, the legal battle has centered on the nursing homes insurance policy. The families disputed the insurance company’s claim regarding the total coverage under the facility’s policy. In a troubling decision, the state’s Supreme Court ruled recently that the coverage was only for $1 million total, instead of the $10 million total that a lower court had decided.

The disagreement was on whether the $10 million total applied to the single facility in question or was split between seven different nursing homes run by the same operator and insured by the same company. This ruling likely means that families will receive 7-10 times less than they otherwise would. It is a sad reminder that even in cases of immense tragedy like this, those involved in the matter--particularly insurance companies--may use all lengths at their disposal to deny compensation to those hurt.

See Other Blog Posts:

Whistleblower Case Against Nursing Home Provider Goes Forward

Looming Problem with Alzheimer’s Care in Nursing Homes?

Nursing Home Faces Another Lawsuit After Wandering Death

Mon, 10 Jun 2013 07:47:58 -0600

One of the axioms that attorneys working on nursing home neglect cases appreciate is that facilities that tolerate negligence once are far more likely to allow poor care to strike again and again. That risk is increased the less the facility is held accountable for the consequences of the inadequate treatment.

In certain ways, providing proper care to seniors in a nursing home costs more than provided substandard care. From ensuring proper staffing level to decent equipment, taking the time to properly train employees, and more, there can be a cost to guaranteeing resident’s safety and well-being. Of course, that is exactly why these facilities are paid money to care for the residents in the first place.

But in an effort to maximize profits, caregivers may skimp on safety protocols, increasing their bottom lines but hurting residents in the process. The only way to prevent this conduct--or to force change after it has occurred--is to hit the facility in the area that they truly watch: financially. That is part of the goals of nursing home neglect lawsuits.

Heart Attack Following Wandering
The Saratogian recently reported on a case which demonstrates these principles. According to the story, the family of a man who died late last year filed a wrongful death lawsuit against the nursing home where he lived.

The 85-year old man lived in the facility because he was known to have vulnerabilities which made it dangerous for him to be alone. For one thing, he was prone to wandering, placing himself in difficult (potentially life threatening) situations. That is why he even had a “WanderGuard” anklet attached while living at the facility. The anklet was supposed to signal an alert if the man left a certain area so that caregivers would know of the situation.

Sadly, something went wrong one December day last year, and the man--who was suffering from early-stage dementia--made it outside without caregiver’s notice. Temperatures were low that day, somewhere in the 30s. He was left outside until the early morning. By then he was in critical condition, having suffered a heart attack. He was rushed a hospital where he was pronounced dead not long after.

Nursing Home Lawsuit
Last month the man’s family filed a neglect lawsuit seeking to hold the facility accountable for the lapses in care which led to the tragedy. Some specifics of the case were not discussed--such as whether the WanderGuard was working. But in any event, allowing a resident to leave the facility and suffer fatal injuries while outside is a textbook sign of inadequate care.

In fact, this same facility has two other neglect case pending against it as well. The second case stems from a fall where a resident injured her hip. The third involves a case of mistaken identity, with a family alleging that an 83-year old resident was given an insulin dose that was intended for her roommate. The senior suffered pain and developed severe hyperglycemia before dying about two weeks after receiving the shot.

Obviously even a single lapse in care like this is unacceptable. But repeated instances of hurt residents must be addressed immediately before even more seniors are harmed unnecessarily.

See Other Blog Posts:

Whistleblower Case Against Nursing Home Provider Goes Forward

Looming Problem with Alzheimer’s Care in Nursing Homes?

Dangerous Bed Rails - Is A Complete Ban Necessary?

Thu, 06 Jun 2013 06:00:26 -0600

While seemingly a safety product, advocates have long-known of the hidden danger lurking with use of bed rails. These products purport to prevent a vulnerable medical patient or nursing home resident from falling off a bed. But bed rails do much more than that--they also frequently entrap residents, smothering them, and, sometimes, causing serious injury or death.

National attention was focused on the bed rail problem last year in a high-profile New York Times article on the situation. The story noted how dozens of deaths have been reported in recent years from bed rails, and that does not count the many more that may not have been reported to officials.

The article shared the advocacy of one woman who has been fighting for changes to prevent these bed rail accidents following the tragic passing of her mother. Her 81-year old mother died in a nursing home after her neck was caught in a bed rail.

Mounting Pressure for Bed Rail Ban
The Consumer Product Safety Commission and Food and Drug Administration are the federal agencies charged with monitoring these types of affairs. Both entities have long-known about bed rail dangers, but little to no action had actually been taken to enact changes that would minimize the risks or eliminate them altogether.

That may slowly be changing, as more and more advocates coalesce around the idea that these products cause far more harm than good and simply should not be used.

For example, a McKnight’s Long-Term Care & Assisted Living News story reported on recent action by the Consumer Product Safety Commision which may eventually result in a total ban on bed rails. Earlier this week the Commission “merged” two petitions which each ask the agency to ban the product. It will now weigh the matter, as it accepts public comments on the issue for the next two months (ending in late July).

The merging of the petitions in helpful in emphasizing the size of the advocacy groups fighting this effort. One petition was started by Public Citizen, a consumer rights safety group. The second was led by the activist profiled in the NYT story. Her petition was backed by a wide range of groups, ranging from unions like the Service Employees international Union (SEIU) to the National Association of State Long-Term Care Ombudsman Programs.

The petitions both call for a complete ban on bed rails. In making the case, they note the tremendous risks of entrapment and suffocation. In just the last decades there are 155 documented bed-rail associated deaths--a number that may drastically underestimate total deaths related to these products.

Importantly, those calling for the ban explain how intermediary steps--more label warnings, design changes, etc.--are insufficient. As one advocate pithily wrote, “Warnings are not an appropriate way to ‘fix' dangerous designs, unless perhaps the warning says ‘Do Not Use This Product,’”

If you or a loved one may have been harmed by a bed rail, please get in touch with our team of injury lawyers today to see how we can help. We are proud to work with families in Chicago and throughout Illinois who have been hurt in these tragic situations.

See Other Blog Posts:

Nursing Home Bed Rail Safety Petition to CPSC

U.S. Senators Send Letter Urging Action on Dangerou Bed Rails

Whistleblower Case Against Nursing Home Provider Goes Forward

Wed, 05 Jun 2013 06:00:26 -0600

Misconduct at nursing home takes many forms. Of course the most well-known way that these facilities act inappropriately is when the individual care they provide to residents is substandard, resulting in falls, pressure sores, wandering, over-medication, and other neglect outcomes. One of the main ways that facilities are held accountable for those lapses are when individual families seek legal recourse by filing a civil lawsuit.

However, a lawsuit is also sometimes appropriate to hold certain home accountable for most systematic problems, usually related to overbilling and misuse of taxpayers funds. Many homes rely on Medicaid (and some Medicare) enrollees. That means that most bills are actually paid by taxpayers. There are very specific rules about what services taxpayers will and will not pay for. Yet, in a rush to increase their bottom line as much as possible, far too many homes cut corners with those rules and sometime intentionally disregard them in order to increase profits. When they occurs, the law allows private individuals with knowledge of the situation to file suit. Those individuals are usually current or former employees of the home who eventually decide that they no long can be a part of an organization that acts in such a way.

Kickback Lawsuit
McKnight’s Long-Term Care News, for example, recently shared information on a lawsuit by a whistleblower against a nursing home chain and other outside care providers. The suit, filed pursuant to the federal False Claims Act (common in these cases) alleges that the nursing home providers received millions in kickbacks all in order to bilk Medicare and Medicaid.

It is easy to see how these arrangements can be crafted to increase the profits of both the nursing home and therapy organizations as the expense of the taxpayers. The outside therapy groups can bill the public for all of the services they provide to nursing home residents--even if they are not necessary--and if the nursing home can receive a portion of those payments (via kickbacks) for ordering the unnecessary therapy. It is a win-win for those companies. But it is obviously illegal, unethical, and damaging to the rest of us.

In this case, the nursing home company is accused of received more than $10 million in kickbacks for using therapy services in 62 different nursing homes that it operates. The two companies are claimed to have entered into an illegal subcontract where therapy services were provided by a new provider. The provider paid an up-front fee to do so and then paid 10% of its billings to the long-term care facility company. This netted millions for the nursing home.

All those with knowledge of any unethical or illegal billing practices at nursing homes in Illinois should be aware that they have legal options to bring the matter to light. In fact, laws are written to incentivize coming forward, with the whistleblower often receiving a percentage of any funds recovered in a subsequent suit. Our nursing home attorneys work on many different cases involving misconduct by these long-term care facilities, both on individual resident problems and system-wide problems.

See Other Blog Posts:

Looming Problems with Alzheimer’s Care in Nursing Homes

Bipartisan Federal Law Proposed to Prevent Elder Neglect and Financial Exploitation

Proposed Illinois Law Would Force Timely Settlement Payments

Mon, 03 Jun 2013 08:52:37 -0600

Some of the most critical aspects of the civil justice process are the rules of civil procedure. As the name implies, this refers to the “procedure” that parties and their lawyers must follow when working through the system. These rules are critical, intricate, and often shape the outcome of a case. Yet, most members of the public are unfamiliar with how it all works. That unfamiliarity is a key reason why the legal process can seem confusing and contradictory.

In other words, proving liability is one part of the process--collecting evidence and presenting it such that a judge or jury issues a judgement in favor of the plaintiff. But in reaching that point, many different rules must be followed--deadlines, paperwork requirements, and so on. The same procedural rules affect cases that end in settlement, before an actual trial.

Considering the importance of procedure, those seeking to influence the justice system often seek to alter procedural laws. In this way, the system can be made better (or worse) for all cases, regardless of actual liability issues.

Settlement Payment Deadlines
For example, defendants in civil lawsuits often use every procedural trick in the book to delay payment to plaintiffs after a settlement or adverse judgement. This is why many families, including those who win cases alleging Illinois nursing home neglect, must wait months and months (or years) before actually receiving the compensation they are owed. This delay is not just unfair but damaging. Many families need to use those funds to provide support to recover from the damage--like hiring at-home caregivers or paying for a senior to live in a higher quality assisted living facility.

In order to help with the stall tactics, this session a bill was introduced in the Illinois General Assembly to put some common sense rules in place on the payment of settlement. According to the terms of Senate Bill 1912, after a settlement has been reached in a civil matter, the defendant must receive a release from the plaintiff within 14 days. That will then start the clock which would give the plaintiff 21 days to actually pay the settlement. It is a commonsense timeline to ensure that the actual matter is handled fairly and efficiently.

Perhaps unsurprisingly, advocacy groups which repeatedly try to take away rights of legal plaintiffs fought the bill. They argued that it would discourage settlements. The ITLA President responded to those critiques, noting how it was nonsensical to claim that actually paying a settlement in a timely manner somehow discourages settlements. He also noted how many families face near financial ruin as a result of delays in payments from those whose negligence caused their family harm (and financial decimation). It is more than reasonable to ensure that those who cause cause damages and agreed to provide redress be forced to actually follow through on their word efficiently.

Fortunately, the scare tactics did not work. At the end of last week the House of Representatives passed the bill--the Senate had already done so. After the Senate concurred, the measure was sent to the Governor’s desk where it awaits his signature. If he signs, the measure will become law, helping ensure fairness throughout the state.

See Other Blog Posts:

Looming Problems with Alzheimer’s Care in Nursing Homes

Bipartisan Federal Law Proposed to Prevent Elder Neglect and Financial Exploitation

Looming Problems with Alzheimer’s Care in Nursing Homes?

Fri, 31 May 2013 06:30:41 -0600

America is “graying.” The Baby Boomers are retiring, and over the next few decades the percentage of the overall country that is in their traditional “golden years” will steadily increase. This obviously presents a host of challenges at all levels of society--from the individual family up to the national government.

One of the foremost issues implicated by the demographic shift is elder care. Do we have enough skilled nursing facilities, assisted living homes, at-home caregivers, and other support services to accommodate the rising needs? Those are difficult questions. So far, most who have looked closely at the current state of the situation note that we are woefully unprepared to provide the aid that will be needed in the coming year. Not only are advocates worried that there will not be enough access to necessary services, but there are also concerns about the quality of the services that are performed.

Helping Those with Cognitive Challenges
For example, My Elder Advocate published a story earlier this year that examines the lack of properly tailored care in nursing homes for those with Alzheimer’s. The author explains how many seniors with Alzheimer’s end up in nursing homes when their families are unable to provide the aid they require and they cannot live on their own. Yet, despite that fact that so many end up in these facilities, the homes themselves are often woefully unprepared to handle this population with special needs.

Tragically, instead of receiving the special support they demand, many seniors with Alzheimer’s see rapid mental deterioration while in the nursing home--usually leading to premature death.

Instead, to thrive as much as possible despite the challenges presented by their illness, most Alzheimer’s patients need tailored “memory care.” This involves different programs, therapies, and services, that help slow the destructive nature of the cognitive condition.

Our elder law attorneys have frequently championed the value of individualized care. No two residents are identical, and nursing homes need to be pushed to provide the tailored treatment and services necessary to maximize senior’s quality of life. If you believe that a facility failed in that regard and caused harm to your loved one, please share your story with our legal team and see how we can help.

We have worked with many local families whose loved one were hurt because of poor Alzheimer’s care in the nursing home. For example, we represent a family whose husband and father was living in a dementia ward at a local facility. Tragically, the senior was attacked by another resident in the home (also with dementia), and he died as a result of the beating. The facility failed to act appropriately to handle the special needs of the residents.

Nursing homes can fail in other ways which leads to injury. Elopement or failure to properly monitor residents with Alzheimer’s may lead to falls or other preventable accidents. In addition, some home engage in unlawful use of chemical restraints, providing seniors with antipsychotic drugs that they don’t need or that may actually cause them harm. None of these errors are ever acceptable.

See Other Blog Posts:

Medical Records Frequently Altered in Nursing Home Neglect Cases

Protecting Residents From Dangerous Nursing Home Employees

Bipartisan Federal Law Proposed to Prevent Elder Neglect and Financial Exploitation

Wed, 29 May 2013 08:06:18 -0600

It is often noted that senior citizens frequently have their political issues addressed because of their reliable voting record. Seniors vote in elections in larger numbers than any other demographic group. As such, lawmakers are usually well-attuned to the challenges and perspectives of many in the senior community. On top of that, the number of seniors is growing. Demographics changes nationwide, with the aging of the Baby Boom generation, means that a larger and larger percentage of the country is over 65 (or over 75 or 85).

These factors combined are likely playing a key role in a push by lawmakers on both sides of the aisle to address to clear concern for the senior community: elder neglect and exploitation.

Proposed Federal Law
As discussed in a recent HomeTownSource story, the “Court-Appointed Guardian Accountability and Senior Protection Act” was introduced by Democratic Senator Amy Klobuchar and Republican Senator John Cornyn. It is very similar in content to a bill that the duo proposed last year.

According to the the story, the focus of the bill is ramping up the oversight of court-appointed guardians. These guardians are those officially given legal control over a senior in need, often adult children or other relatives. While many guardians work hard to ensure the seniors in their care are treated appropriately at all times, there are some guardians who use the position to exploit. The hope with the legislation is to minimize that mistreatment. As Senator Klobuchar noted, “Seniors deserve to live their lives safe from abuse and mistreatment. [...] There is mounting evidence that some guardians use their position of power for their own gain. This legislation would help increase accountability and oversight of guardians and protect those who are most vulnerable.”

More specifically, the bill calls for increased federal support for individual state programs geared at guardian oversight. If the legislation became law then state courts would apply for funding to help in their guardianship process. The money would be used for things like more aggressive background checks or more sophisticated filing systems to ensure frequent “check-ups” on seniors at risk.

Sadly, the legislation was spurred in large part by research from the Government Accountability Office which found significant problems with mistreatment by court-appointed guardians. The abuse is widespread, including physical and emotional mistreatment. Financial abuse is probably the most common of all, as seniors have lost tens of millions of dollars to unscrupulous individuals who are unable to resist the urge to take from those in their care.

It is rare to see any issue be addressed by both Republicans and Democrats in Washington these days. Disagreement and conflict seem to be the rule with most federal legislation. But the fact that the two sides may be able to come together on this issue is a testament to the critical importance of preventing senior abuse and mistreatment. That is especially true now as more and more community members join the ranks of the elderly and require assistance in various forms to get by each day.

For help understanding the law as it related to senior abuse, please contact the elder neglect attorneys at our firm today.

See Other Blog Posts:

Medical Records Frequently Altered in Nursing Home Neglect Cases

Protecting Residents From Dangerous Nursing Home Employees

Medical Records Frequently Altered in Nursing Home Neglect Cases

Tue, 28 May 2013 07:42:59 -0600

When you meet with a lawyer for a free consultation about your case, one of the first things that the attorney will consider are the avenues of proving each element of a possible Illinois nursing home neglect claim. Even if you are certain that mistakes were made which led to harm, the key component as far as the law is concerned is the available proof.

This can be challenging, because most material that might be used as evidence in a possible trial is in the hands of the defendants themselves--the recollections of the nursing home employees and the records that they maintain. The “discovery” process of the case is supposed to fix those inequalities by allowing each side to share information. That information sharing comes in the form of transferring documents (like patient records) and depositions, where each party is interviewed on the record about the situation.

But of course this also leads to one serious potential problem: the defendants changing the records to make themselves look better. For example, if a resident was supposed to receive medication on a set schedule, the caregivers can simply change the medical charts after the fact to indicate that the medication was actually given, even if it wasn’t. This obviously represents an egregious breach of trust and honesty, but lawyers working on these cases appreciate that such action are not beneath some owners and operators when faced with legal accountability.

Experience to Identify Fraudulent Records
Altered nursing records are sadly commonplace. That is why the most experienced attorneys are quite well-versed in using different techniques to root out this fraud when it exists. In many cases, identifying the problem requires comparing many different forms of documentation with each other to identify possible discrepancies. Many of these tips are spelled out in a book on the subject, Medical Legal Aspects of Medical Records, released in 2010.

For example,in the medication example above,employee records can be examined to determine if the nurse or aide that reportedly provided the medication on each occasion was actually scheduled to work at that time. In the hurry to alter records, some may do a sloppy job, faking the actions of an employee who was not even working. Similarly, billing records need to be examined to identify possible discrepancies. It may be a sign of altered records if the services billed to the insurance provider do not match with claimed care in patient charts.

It is also critical to understand possible documentation copying. If nurse’s records are copied in the natural course of business, there is a tendency to alter details at that time to make the nursing home conduct seem more favorable. Lawyers working on these cases must therefore be familiar with the policy’s documentation policy and indication that the records they receive that they are copies.

If your loved one was harmed by neglect or abuse in an Illinois nursing home, you need experienced legal professionals on your side to ensure accountability. It is important to act quickly to guarantee lawyers are able to obtain the necessary documentation needed to prove that proper caregiving steps were absent. Contact our office today to see if we can help.

See Other Posts:

Protecting Residents from Dangerous Nursing Home Employees

State Supreme Court Mandates Arbitration in Nursing Home Death Case

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