M.A. was 76 years old when he was first admitted to a skilled nursing facility for rehabilitation after knee surgery. M.A. underwent physical therapy and began to recover.
He later developed shortness of breath and was administered oxygen and other therapy.
Over the next several days, M.A. experienced shortness of breath, which continued, sweating and a gray skin tone.
On Dec. 13, 2006, Myron Tucker was admitted to a long-term care facility in Oak Lawn, Ill. Tucker was 52 at the time and was wheelchair dependent with impaired memory and judgment. His medical history included a seizure disorder, right-sided stroke with left hemiparesis, a craniotomy and brain surgery for a ruptured aneurysm.
The defendant physician, internist Dr. Neerja Ahlowalia, was assigned to act as Tucker’s attending physician at the long-term care facility or nursing home. On the night of Tucker’s admission, Dr. Ahlowalia telephoned orders for continuation of two anti-seizure medications as listed on the prescription bottles brought to the nursing home with him. The doctor ordered lab tests to be performed in the morning, including blood level testing of one of those medications. However, the lab tests still had not been done when Dr. Ahlowalia saw Tucker a few days later on Dec. 17, 2006.
Dr. Ahlowalia maintained she verbally asked the nursing home nurses to follow her prior order and she made no changes to her admission orders. This is the only time. Dr. Ahlowalia actually saw Tucker in person.
As the baby boom generation ages, the population of nursing homes is also expanding. Elderly Americans and Illinois residents who reside in nursing homes are likely the most vulnerable members of this aging society. Nursing home cases should not be confused with medical malpractice cases. A medical malpractice case typically concerns particular acts of negligence, such as a failed surgery or misdiagnosis. In contrast, nursing home cases do not involve a particular or discreet act of negligence. Rather, a nursing home abuse case in Illinois involves a pattern of sub-standard care, abuse or neglect.
For example, a nursing home abuse case may involve bedsores. Bedsores can be wounds of the flesh that take form over many days, weeks or even months. A nursing home resident who is dehydrated or suffers from malnutrition would not be the result of a single wrongful act.
Many nursing home cases arise from substandard care, abuse or neglect. Often nursing homes in Illinois operate without a single on-site treating physician; instead, they have only one who may make regular rounds. At the same time, most well-run nursing home facilities provide treatment by a resident physician, a nursing home administrator, a well-trained nursing staff, CNAs, physical and occupational therapists, speech pathologists, wound care doctors, dieticians and other medical and nursing providers.
It happens that lawyers who handle nursing home abuse cases, medical negligence cases, personal injury cases, wrongful death cases, birth injury cases, product liability cases and general injury cases for those who were injured or killed work on a contingency basis with their clients. That means that the client pays nothing to the lawyer unless there is a recovery by way of a settlement or judgment. At times, cases that have been filed turn out to be not as solid as the lawyer may have envisioned. Sometimes, for other reasons dealing with the handling of the case or a client disagreement, the attorney and client agree to withdraw an appearance in the pending case so that the client can find another lawyer.
In one case that occurred in our practice, a case involving a man who was seriously injured in a motorcycle accident, the attorney first handling the case withdrew early in the litigation and left the client to search for another attorney. The client located an attorney whose primary practice is outside of Illinois, but hired Kreisman Law Offices to act as local counsel.
The case was a very difficult and serious injury case. It involved a motorcycle and road construction. The client hired new counsel and the litigation ensued. After the taking of as many as 50 depositions of fact witnesses, experts and medical witnesses and after a long and tedious mediation, the case was finally settled two years later.
The Illinois Probate Act was recently amended to include a new section entitled, “Presumptively Void Transfers.” 755 ILCS 5/4(a) et seq. The effective date of the statute was Jan. 1, 2015. The intended purpose of the legislation was to prevent unrelated caregivers from taking advantage of elderly or disabled persons in their making testamentary gifts under duress or under less than forthright circumstances.
In essence, the new statute states that if a “transfer instrument” is challenged by a court proceeding, there is a rebuttable presumption that the transfer instrument is void if the transferee is a “caregiver” and the transfer exceeds $20,000. 755 ILCS 5/4(a)-10(a).
According to the statute, once the presumption is in place, it can be rebutted by the caregiver in two ways:
(1) The caregiver, beneficiary, proves by clear and convincing evidence that the transfer was not the product of fraud, duress or undue influence; or
(2) By showing that the beneficiary’s share under the transfer instrument is not greater than the beneficiary’s share already in the effect prior to becoming a caregiver. 755 ILCS 5/4(a)-1(15)(2) and 10(a).
The owners of a chain of nursing homes housed in multiple states around the United States have been held to have committed fraudulent transactions in an attempt to transfer liabilities to a “shell company.” The owners of Fundamental Long Term Care Inc. have been the subject of multiple wrongful death cases related to negligence in handling nursing home residents.
Liabilities that included many judgments in Florida have never been paid to the families of the residents who died at the hands of the nursing home personnel. There were reports of four wrongful death judgments in Florida alone. The company filed for bankruptcy protection, but not without careful scrutiny by the court and the judgment creditors.
The U.S. Bankruptcy Court judge in Tampa, Fla., ruled that the owners of Fundamental Long-Term Care Holdings LLC engaged in a “carefully orchestrated sham transaction” by selling a unit of the company in 2006 to a retired graphic artist who didn’t even know he had purchased the shares of the company.
John Tully, 80, had a history of an unsteady gait. He was living at a nursing home owned and managed by the California Department of Veteran Affairs. Tully had fallen twice within a 10-day period and, as a result of his last fall, he fractured his spine. Complications from that fall included the loss of use of his legs; he now requires a catheter to urinate and must undergo a fecal removal procedure three times a week.
Aided by his attorneys, Stephen Garcia and William M. Artigliere, Tully filed a lawsuit against the Veterans Administration alleging that its nursing care was negligent in allowing him to walk without the assistance of a walker, which resulted in his first fall. They also alleged that the facility’s nursing assistant attempted to transfer Tully using a mechanical lift without proper knowledge on how to do so, which led to his second and most damaging fall.
The lawsuit also alleged that the defendant’s employees chose not to provide a proper medical evaluation after the first fall and did not timely inform Tully’s family about these two incidents. The defendant denied the allegations of the lawsuit; however, the case settled before trial for $1,250,000.
Peter Piel, 62, resided at the Mirajoy Home. When a nurse’s aide attempted to transfer Piel from his bed to a shower chair, he fell, hitting his head, fracturing his left hip and injuring his right leg. He required surgery for the hip and was diagnosed as having brain damage and chronic pain. His injuries and permanent condition are all related to his fall at the assisted living facility.
Through his guardian, Piel filed a lawsuit against the nursing home and its owner claiming improper staffing and training. Among other things, the lawsuit claimed that there should have been two aides transferring Piel to that shower chair.
The defendants argued that his injuries were not related to his fall. They contended that the aide had caught him before he hit the floor and that his injuries were not as significant as claimed. Before the case went to trial, the parties settled for $1,500,000. The attorneys representing Piel’s guardian were Michael F. Moran and Alexander H. Feldman.
Sui Mee Chiu, 85, was admitted to the Arcadia Health Center for long-term care. A member of the Arcadia staff found a Stage I pressure sore on Chiu’s lower back. A care plan was then initiated by the nursing home staff. The plan included pressure-reducing measures, frequent bathing and wound care. However, the pressure sore progressed to Stage IV, necessitating 7 hospitalizations for wound care management. Chiu developed recurring urinary tract infections from her use of Foley catheters and required a year of antibiotic treatment.
Because of the antibiotic treatment, Chiu became antibiotic-resistant and died of pneumonia and respiratory failure about 15 months after the Stage I pressure sore was first discovered and diagnosed. She was survived by her two adult children.
Her family sued the nursing home and its licensee for negligence and for choosing not to implement the care plan in a timely fashion. It was claimed that had a proper treatment been implemented, Chiu’s pressure wound would have healed without a problem. The family also maintained that the nursing home chose not to keep adequate documentation regarding Chiu’s treatment at the nursing home.
Alice Horne was suffering from Alzheimer’s disease and diabetes. She was confined to her bed at the Lexington Healthcare of Orland Park nursing home. Horne was 82 years old; the staff discovered bedsores on her heels and sacrum. The nursing home staff began repositioning her, but the staff did not notify Horne’s family about her condition.
The wounds on her heels and sacrum became infected, and Horne remained in pain until she died from unrelated causes several months later.
Horne’s family filed suit against the nursing home claiming that it had chosen not to provide adequate nutrition and to timely notify the family about Horne’s declining medical condition.
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