Articles Posted in Illinois Nursing Home Care Act

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In an Illinois Senate bill sponsored by Sen. Tom Cullerton, D-Villa Park, the law would create a “resident’s representative” for Illinois nursing home residents.  The law would amend the Nursing Home Care Act, changing Section 1-123 (210 ILCS 45/1).

This law — should it be enacted — would allow a nursing home resident to choose someone to support the resident in decision-making, access medical, social, or other personal information of the resident, manage financial matters or receive notifications.

The law would also include the following:  (1) an individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access medical, social or other personal information of the resident; manage financial matters; or receive notifications; (2) a person authorized by state or federal law, including, but not limited to, agents under power of attorney, representative payees, and other fiduciaries, to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications.  (3) a legal representative, as used in Section 712 of the federal Older Americans Act (42 U.S.C. 3058g); or (4) the court-appointed guardian or conservator of a resident. Nothing in this definition is intended to expand the scope of authority of any resident’s representative beyond that authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

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Arbitration clauses commanding arbitration in nursing home abuse and neglect cases have been the bane of many lawyers seeking to protect nursing home residents from abuse and injury. Under the Illinois Nursing Home Care Act, arbitration clauses were considered to undermine the purpose of the act by making it mandatory for residents and their families to abide by a confusing nursing home contract on admission to a nursing home.

The Illinois Nursing Home Care Act was intended to protect residents from exploitation by nursing homes and their parent corporations. It would seem to be against Illinois public policy for residents admitted to Illinois nursing homes to be compelled to sign a contract. In some cases, these contracts contained arbitration clauses that would essentially remove a common law lawsuit as an option should the resident be injured by neglect or abuse by a nursing home and its personnel.

The Centers for Medicare and Medicaid Services (CMS) implemented a new rule that prohibited federal funds for nursing homes that enter into binding arbitration agreements with residents. However, in a U.S. District Court in the Northern District of Mississippi, an order was entered that found that the CMS did not have authority to enact the mandate without statutory authority.

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Contaminated syringes have been associated with the outbreak of bacteria that infected nearly 150 people since August 2016. Fifty-two of those cases were in New Jersey. According to the Centers for Disease Control (CDC), “the majority of these cases occurred in patients residing at long-term care or rehabilitation facilities who were receiving intravenous (IV) fluids and/or antibiotics through central venous catheters.”

The outbreak of the bacteria from the IV syringes may be linked to six deaths in New York and Pennsylvania. Of the 58 total nursing home facilities that had been affected, the most were located in New York, New Jersey and Pennsylvania. There were several reports of similar outbreaks in Delaware and Maryland.

The bacteria is usually referred to B. cepacia. In most cases, the infections were caused by a pre-filled saline flush syringe, which the manufacturer voluntarily recalled on Oct. 4, 2016. The CDC announced on Nov. 9, 2016 that all nursing homes and other medical facilities should stop using the items, sequester any items in the facility and report all infections to local and state health authorities.

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Violet Moseson, a 97-year-old resident of an assisted living facility, was mandated to be checked on every morning. The facility was to perform safety checks each morning for this resident and others. At the time of this occurrence, the electronic system through which the facility was supposed to communicate with Moseson was not turned on in her apartment when she moved in.

A week later, Moseson fell in her apartment at night. It was alleged that she spent the next 2-3 days trying to get help. There was a trail of blood and excrement in her apartment when a family member found her lying on the floor. Because of the severity of the fall, Moseson suffered spinal fractures, contusions as well as progressive dementia. Moseson died several months later and is survived by her two adult sons.

The decedent’s estate and family brought a claim that was arbitrated against the assisted living facility. It was maintained that the facility chose not to check on Moseson every 24 hours and chose not to activate the call system in her apartment. The defendant facility disputed the length of time that Moseson had been left in the apartment after her fall and countered that she was at fault for failing to purchase an emergency pendant. Many elderly people wear a pendant around their necks for emergencies. The pendant has a call button that alerts a switch board that then contacts family members.

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Ms. Doe, 78, suffered from blindness and mild dementia. Her nursing home care plan called for her to receive assistance from at least two people during any type of physical transfer. This would mean transfer from her bed or transfer from a chair or a transfer from her wheelchair. Nonetheless, only one nursing home aide assisted Ms. Doe when transferring her to the toilet. Under these circumstances, Ms. Doe fell and fractured her left tibia and fibula. She died six days later as a result of her injuries. Ms. Doe was survived by her two adult sons.

Ms. Doe’s family sued the nursing home claiming it chose not provide adequate transfer assistance, which led to her fall and unfortunate passing. The defendant nursing home argued that Ms. Doe’s death resulted from her underlying medical conditions, not from her fall. Before trial, the case was settled for $325,000 confidentially.

The attorney representing the Doe family was Brett R. Leitner.

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Sophia Alcon, 77, was admitted to Life Care Center of Pueblo, a skilled nursing facility. During the 7 months that she remained there, she suffered various injuries and illnesses, including urinary tract infections, bed sores, dehydration, malnutrition, pain, renal failure and aspiration pneumonia. She was brought to a nearby hospital where a staff medical provider noticed that her vagina was packed with dried feces. She died as a result of her medical conditions and is survived by her 10 adult children.

One of her sons, on her behalf and for the family, sued the nursing home and its corporate affiliates maintaining that they were responsible for her death. In the complaint it was alleged that the nursing home was negligent, was responsible for her wrongful death and was guilty of numerous consumer protection violations. Among other things, the Alcon family alleged that the defendants chose not to properly assess Sophia’s medical needs, formulate an appropriate care plan, provide adequate staffing and properly trained personnel at this skilled nursing facility.

The jury’s verdict of $5.56 million, included $5 million in punitive damages, which are designed to punish the defendants for the abusive treatment to Sophia Alcon.

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In an April/May CBA Record article written by attorney Dmitry N. Feofanov, the options for agreeing to confidentiality clauses in settlement agreements were explained. Too often confidentiality agreements seem to show up in settlement agreements or release documents when no negotiations have been previously entertained. At the very least, if a confidentiality clause is insisted upon by any party to a settled case, the inclusion should be negotiated as part of the consideration.

Mr. Feofanov’s focus was on the ethics rules of professional conduct. What Mr. Feofanov wrote was that confidentiality clauses should be avoided whenever possible and even with the risk that refusal to include confidentiality clauses to the agreement may undo a settled case.

Mr. Feofanov says he refuses to compromise on confidentiality clauses in any way and would not enter into settlement agreements that contain confidentiality clauses.

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The Illinois Nursing Home Care Act has been amended. The new law changes the requirements of nursing home facilities when they transfer residents. The amendment allows for exceptions to the requirement that nursing home facilities shall request a criminal background check on people admitted to a facility within 24 hours of admission when the transferring resident is either (i) immobile or (ii) moving into hospice.

These exceptions are applicable only if a background check was completed by the resident’s prior facility and the resident was transferred to the current facility with no time passing in which the resident was not institutionalized.

If either exception is applicable, the prior facility shall provide the facility to which the resident is being transferred with a copy of its background check of the resident and all supporting documentation, including, when applicable, the criminal history report and the security assessment.

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The Illinois Appellate Court for the First District has reversed and remanded a decision by a Cook County circuit court judge in a nursing home case involving discovery and confidentiality.

In 2011, Robert Holman was a resident of a long-term care facility, Renaissance at Midway.  On or about Jan. 22, 2011, Holman was attacked by another resident. He suffered injuries to his left eye, which caused a hyphema, an orbital fracture and a globe rupture.

On Jan. 17, 2013, a lawsuit was filed in the Circuit Court of Cook County by John Stuckey who was the attorney-in-fact for Holman and his sister. The lawsuit named Renaissance but did not name the attacker, who was identified in the lawsuit as “John Doe.”

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In a shocking video that was shown to the jury at trial, two nursing home aides appeared to stuff a latex glove into the mouth of a 96-year-old nursing home resident. The resident was sitting in a wheelchair. The undercover video helped change laws in many states. Families can legally hide cameras inside their loved one’s room.

The video is disturbing in a number of ways. But most of all, it reveals the dangers that nursing home residents face each day. It remains so important for family and loved ones of nursing home residents to regularly visit and make it known to staff at the nursing home that they are regularly present. The more often visits are made, the less likely that something this horrific will occur again at an Illinois nursing home or long-term care facility.

In this particular case, a jury at the federal court house in Oklahoma City entered its verdict of $1.2 million for emotional distress and $10,000 in punitive damages. Given the intentional, vindictive and heartless acts of the nurse’s aides, the punitive damage part of the verdict seems light. However, this was a criminal act where the liberty of the two nurse’s aides has been taken.

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