Articles Posted in Nursing Home Abuse

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The Illinois Appellate Court recently considered issues of punitive damages under the Illinois Nursing Home Care Act in an ongoing Illinois nursing home abuse case, Vincent v. Alden-Park-Strathmoor, Inc., No. 2-09-065 (April 7, 2010). The court rejected plaintiff’s argument that punitive damages could be recovered in a survival action under the Nursing Home Care Act and remanded the case back to the trial court.
Vincent was brought on behalf of decedent Marjorie Vincent, alleging that defendant nursing home Alden-Park Strathmoor, Inc. caused personal injuries to decedent prior to her death while in defendant’s care. Under Count III of Plaintiff’s Complaint, the estate sought to reserve the right to seek punitive damages under a survival action in the Nursing Home Care Act for willful and wanton behavior.
Punitive damages are additional damages that can be awarded as a way to punish a defendant for willful and wanton behavior, among other things. Counts I, II and III of plaintiff’s complaint dealt with compensatory damages, which would reimburse the estate for actual loss or harm as a result of defendant’s actions.
The defendant nursing home won a motion to strike plaintiff’s punitive damages reservation from the complaint on the basis that punitive damages claims do not survive a resident’s death. In response the plaintiff filed an interlocutory appeal seeking to reinstate its right to claim punitive damages under a survivor action. However, the Appellate Court agreed with the lower court and held that punitive damages cannot be claimed under a survival action under the Nursing Home Care Act.

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A recent Illinois nursing home negligence settlement highlights one of the biggest problems plaguing nursing home residents – inadequate skin care. Many nursing home residents are bedridden and require careful monitoring and stringent skin care plans in order to avoid developing skin ulcers, which if untreated can lead to infection or even death.
This case involved an Illinois nursing home resident at Provena Senior Services Nursing Home in Kane County, Illinois. In this Illinois nursing home abuse lawsuit, the nursing home resident was a diabetic patient, which left him even more at risk for potential skin breakdown if inadequate nursing care was provided. A diabetic patient is also more at risk for having a poor outcome if skin ulcers develop, which is also shown in this case where the skin ulcer worsened to the point that the nursing home resident required a below the knee amputation.
The Illinois nursing home negligence lawsuit alleged that the nursing staff had failed to maintain adequate skin care, which resulted in the development of a skin ulcer. However, the defendant nursing home denied that it had caused the skin ulcer to develop.

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In an age when reports of nursing home abuse are becoming all too common, picking a nursing home for an elderly relative is never an easy task. A recent book, Taking Charge: Good Medical Care for the Elderly and How To Get It, makes the process a little easier by creating a checklist to facilitate the search for a suitable nursing home.
Investigate deficiencies. There are standards that are established by the federal government and state and local health departments in order to monitor nursing home neglect. A nursing home that fails to comply with a standard or regulation is issued a deficiency citation. Information about these deficiencies can be found on Nursing Home Compare website, sponsored by Medicare.
Chose quality over location. The primary reason for selecting a nursing home facility is high quality of care, not location. The quality of care is measured in the staffing levels and the direct connection with the hospital. Again, the Medicare website is a good place to start your search.
Monitor the care. Relatives and loved ones of a nursing home resident should visit often and at various times, including nights, weekends, and holidays when the staff members on duty may not be the most experienced. Make sure medications are given at the right times and check on the amount of fluids the patient is actually consuming. Malnutrition and dehydration are common hazards in nursing homes and can be fatal.
Assist at meals. For those nursing home residents and patients not able to feed themselves, make sure that arrangements are made to assist the person with eating. This assistance is most important at lunch, which is the main meal in nursing homes.
Hire a geriatric care manager. If a relative or loved one is not near enough to make personally assisting the nursing home patient reasonable, consider hiring a professional who can serve as a family liaison. A geriatric care manager is trained in gerontology and can visit the patient, evaluate and monitor the situation for any signs of nursing home abuse or neglect. The National Association of Professional Geriatric Care Manager website maintains a directory searchable by ZIP code.

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One out of every three Americans 65 years or older will suffer injuries as a result of a fall. According to the Illinois-based Academy of Orthopaedic Surgeons, falls are the leading causes of injury among senior citizens with death from falls on the rise since 2000.
Approximately 250,000 hip fractures occur each year among people older than 65 in the United States, with falls accounting for 87% of all fractures among people age 65 or older. And for the elderly, hip fractures can lead to severe health problems or even death.
According to the International Osteoporosis Foundation, senior citizens are at higher risk for poor outcomes following a fall, in part due to the the extra time their bodies require to heal. In addition to the longer recovery period, there are the added risks of complications from blood clots, infection, or skin breakdown. For example, a senior citizen hospitalized for a hip fracture is also at risk for ulcers or pressure sores that can permanently deteriorate one’s health.
Family members can help their elderly relatives by trying to lessen the risk of the possible side affects. For example, try to keep seniors among familiar settings where they are less of a risk of suffering a fall. Also, to make sure they are in the best possible health, make sure they attend their doctor’s appointments, which might require making driving arrangements for less mobile seniors. Make sure they are taking all their necessary medications and receiving proper nutrition. These measures will help ensure your family member stays as healthy as possible and lessens the risk of any negative outcomes.

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Like nursing homes nationwide, nursing homes in Illinois are not devoid of elder abuse. However, a recent series of articles published by the Chicago Tribune has highlighted a growing trend among Illinois nursing homes that admit dangerous residents. According to the articles, Illinois nursing home residents are increasingly found to be either psychiatric patients, or to have criminal backgrounds.
While local Illinois nursing homes are assuring residents that those residents with psychiatric or criminal histories are segregated from those residents who are elderly, infirm, or ill, this does not always prevent the nursing home residents from coming to harm. There have been reports of elderly residents being attacked, injured, or raped by some of the mentally ill residents or those who are convicted felons.
In addition, the methods used to identify residents with a criminal history tend to be faulty. Not only do the background checks not catch all types of crimes, but some were not done until several weeks to a year after the former criminals were placed in the nursing home. Without proper information about an ex-convict’s history the nursing homes cannot make adequate assessments of their risk to other residents. The result is that many of the dangerous residents are identified as being less of a risk then they really are.

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As my dad used to always say, “it’s no fun getting old,” something that baby boomers are discovering as they begin to reach their golden years. More and more baby boomers are settling into nursing homes and are looking to make a claim on the long-term care insurance that many of them have been paying for over many years. But many people have been disappointed in this not-unreasonable expectation as the insurance companies have been denying claims on a regular basis.
Starting in the 1990s insurance companies began taking advantage of baby boomers by scooping up thousands of individual long-term care insurance policies. It seems that the expectation by the insurance companies was that the buyers would eventually give up paying the annual premiums and close out the files by taking the collected premium.
However, instead more and more claims are being made on an increasing basis. So more and more the long-term care insurers are unable to meet their legal obligations and are denying claims for illegal reasons in an attempt to avoid payment.
In essence the insurance companies were taking advantage of the elderly insureds by denying their claims for long-term care insurance. This left many people without any resources to pay for their nursing home care or other long-term care needs. This dishonesty on the part of insurance companies has resulted in a jump in lawsuits filed against insurance companies, many of which have been successful at thwarting the insurance company’s attempts to avoid payment of the long-term care.

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A recent Missouri Supreme Court case ruled that a nursing home cannot enforce a mandatory arbitration clause against a former resident’s children even if an arbitration agreement with the nursing home had been signed. The court found that “the plaintiff in a wrongful death action is not bound by an arbitration agreement signed” by a sister on the mother’s behalf in Lawrence v. Beverly Manor, 2009 WL 77897 (Mo. Jan 13, 2009).
In 2003, the resident, Dorothy Lawrence, began living at Beverly Manor Nursing Home in St. Joseph, Missouri. At the time Lawrence’s daughter, Phyllis Skoglund, had power of attorney for her mother and signed the contract with the nursing home on behalf of the resident.
This contract included an arbitration clause that stated that “any and all claims, disputes and controversies [regarding the nursing home’s care and treatment of Lawrence] shall be resolved exclusively by binding arbitration”.
Shortly after her admittance to the nursing home, and the signing of the contract, Lawrence died. Her family filed a wrongful death lawsuit against Beverly Manor Nursing Home alleging that she died as a result of the nursing home’s negligence when she was dropped by the nursing home staff.
A trial court ruled that the wrongful death claim could go forward despite the contract including the arbitration language. This decision was affirmed by the Missouri appellate court, at which point Beverly Manor Nursing Home appealed to the Missouri Supreme Court.

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According to a study published in 2003 by the Office of Inspector General’s (OIG), deficiencies in nursing homes increased between 1998 and 2001. Although there appeared to be considerable variation with states regarding the average number of deficiencies per home and the percentage of nursing homes with deficiencies.
In the past 3 years the instances of nursing home deficiencies in Illinois and nationwide has risen to over 91 percent. A “nursing home deficiency” would be anytime a nursing home fails to comply with federal requirements and standards. The most commonly cited of the 16 possible deficiencies were in terms of quality of care, quality of life, and resident assessment.
As stated by the OIG analysis of data, in 2007 Illinois suffered an average of 5.3 deficiencies per nursing home surveyed, while the national average in 2007 was 7.0. Even though Illinois nursing homes fared better than many other states, over 90% of nursing homes in Illinois had deficiencies. Although this is an alarming number, it is below the national percentage of nursing homes with a deficiency of 91.9%.

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Five Cook County, Illinois residents with disabilities recently filed a class action lawsuit who are living in nursing homes after being denied access to community services that would have allowed them to live in an integrated, community setting. Colbert v. Blagojevich (Case No. 2007 C 4737). The plaintiffs aren’t alleging there was any nursing home abuse or neglect, but rather that there was a violation of their rights.
All five of the plaintiffs are Cook County, Illinois residents that are eligible for Medicaid. All were living in private nursing homes that received state and federal funding. Plaintiffs believe that they could have been living in their own personal residences if they had been given the appropriate services. The plaintiffs alleged that the state of Illinois had denied them the benefits they would have received from various community services, specifically long-term care services and support in a community setting as opposed to the long-term, nursing home settings they were currently being offered. They further allege that these sorts of services would have given them the opportunity to live somewhere other than an institutionalized setting.
The class action alleged that by failing to provide these services that Illinois officials resulted in violations of the Americans with Disabilities Act, the Rehabilitation Act of 1973, the Social Security Act, and the Nursing Home Reform Act. By filing this class action, plaintiffs are hoping the court will require the defendants to:

(1) inform individuals with disabilities that they may be eligible for community-based services and have the choice of such services, (2) regularly provide assessments to determine eligibility for community-based services, and (3) promptly provide appropriate services and support to qualifying individuals in the community, creating a viable alternative to treatment in institutional settings.

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Illinois has enacted legislation to protect nursing home residents because of past instances of nursing home abuse. For example, like many nursing home residents, Fred was admitted to a nursing home when his health declined to the point that his daughter was no longer able to continue caring for him at home. At the time of his admission the 84 year-old male was confined to his bed, needed a feeding tube, and had a Stage II pressure sore on his left hip.
Making the decision to entrust an elderly relative to receiving care at a nursing home is a hard one. Laws like the Illinois Nursing Home Care Act seek to alleviate some of the anxiety of the nursing home decision by addressing concerns of inadequate, improper and degrading treatment of patients in nursing homes. The Act provides residents with a wide range of rights, including the retention of a person’s own personal physician at their own expense. Chicago Mayor Richard M. Daley, then a State Senator for the 23rd District, was one of the chief sponsors of the Act when it was passed in 1979.
In addition to Illinois law, there is also the federal statute called the Omnibus Budget Reconciliation Act of 1987 (OBRA). This statute sets up requirements for long-term care facilities throughout the country. What’s most important about the two statutes is that they demonstrate that the elderly need advocates.

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