Articles Posted in Nursing Home Negligence

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An appellate court in Ohio has ruled that a family’s motion to compel was wrongly granted because there had not been an in camera inspection of the requested documents under that state’s peer review laws.

In this case, the nursing home decedent was living at Manor Care of Mayfield Heights. Her health had deteriorated while living there. The family sued Manor Care and others claiming negligence, statutory violations under the laws of the nursing home care law of the state and other claims. During the course of the litigation, the family of the decedent moved to compel production of documents related to an alleged investigation into the nursing home resident’s death. The trial judge granted that motion.

The appellate court reversed the trial court noting that although 42 C.F.R. §483.10 provides nursing home residents with timely access to their own records, under 42 U.S.C. §13.96(r) disclosure of records from a quality assessment and assurance committee is limited.

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In a measure passed by the Florida State Senate, lawsuits that allege nursing home abuse could be subject to smaller awards.  The bill would shield many private equity firms that own nursing homes around the state of Florida.  The bill is directed to shield from financial exposure in lawsuits for those in ownership positions and take no active role in the management of the facilities.  It would limit actions against any ownership party who had no impact on the day-to-day activities in the nursing home facility. 

The proponents of the bills say its purpose is to allow for private equity firms and other private investors to take a more active role in investing in nursing home facilities in the state.

According to the report, this bill was targeted at Tampa attorney James Wilkes, who has a reputation for successfully representing plaintiffs in nursing home abuse cases. The bill has the support of the Florida Healthcare Association, AARP, the Florida Justice Association, which represents a host of Florida trial lawyers. 

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The internal documentation that is recorded and housed by the owners and/or management companies responsible for operation of a nursing home is vitally important in litigating against a nursing home. This internal documentation may be the framework of a successful prosecution of the case.  Nursing home documentation varies from nursing home to nursing home. Most nursing homes record data in three major categories:

  • Staffing/payroll
  • Clinical issues
  • Financial analysis

One of the most common causes of nursing home resident injury or abuse is the lack of staffing or a shortfall in competent staffing. Internal documentation of the nursing home can be revealing about staffing and payroll information. The largest expense of operating a nursing home is the cost of its labor force. Therefore, to be more profitable, nursing homes will reduce labor in an effort to increase its profit margins. Accordingly, there is detailed information stored by the nursing homes showing labor costs in comparison to other years.

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Jesse Harvey Sr. reached the age of 99. While hospitalized he underwent a pharyngogram. This is essentially a radiographic procedure of the pharynx.  Mr. Harvey was a resident of Arcadian Rehabilitation & Nursing Center. The pharyngogram test showed that he had an inability to swallow. His doctor ordered a nasogastric tube and directed the nursing home not to feed him anything by mouth.

However, two days after Mr. Harvey returned to Arcadian Rehab & Nursing Center, he pulled out the nasogastric tube. A staff member at the nursing facility told the nurse practitioner investigating that there was no pharyngogram in his chart. Assuming that the tube was present because of inadequate nutrition, the nurse practitioner ordered the staff to feed Mr. Harvey grits. 

After the feeding, Mr. Harvey developed breathing difficulties. He was rushed to a nearby hospital where he was diagnosed with aspirational pneumonia. Unfortunately, Mr. Harvey died several days later. He is survived by his five adult children. 

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