Articles Posted in Nursing Home Residents

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Life Care Centers of America, which operates 200 locations and is based in Tennessee, will pay $143 million to settle a False Claims Act (FCA) litigation in which it was alleged that the corporation had billed Medicare for excess treatment. According to the report of the case, this was a record FCA settlement for the nursing home industry.

The consolidated cases arose because of two whistleblower cases as well as an unjust enrichment lawsuit brought by the Department of Justice (DOJ) against the owner of Life Care. The two former employees will share $29 million in the settlement payout.

This settlement was reported to be the largest in the Justice Department’s history involving a skilled nursing home chain. The size of the settlement was based on Life Care’s ability to pay this amount.  The government, which joined in the FCA cases in 2012, alleged excessive treatment of seniors in order to maximize Medicare reimbursements.

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According to a recent report in the New York Times, an agency within the federal Health and Human Services Department issued a rule that bars any nursing home that receives federal funding from requiring that its residents resolve disputes in arbitration as an alternative to a lawsuit in a court.

As in many situations, the admission contracts of nursing home residents encounter clauses within that contract that makes arbitration mandatory should disputes of any kind arise. That includes most often neglect and abuse matters.

The nursing home industry has long preferred arbitration instead of lawsuits that residents raise for neglect and abuse.  Arbitration is a benefit to the nursing home industry because the cost of litigating cases in arbitration is much less than might be in a state court. The arbitration clauses that are found in some nursing home admission contracts are designed to limit the amount of recovery for an injured or neglected resident.

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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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In a confidential settlement, a nursing home paid $475,000 to a seriously injured resident. The resident was listed and charted as being at a high risk for falling. However, several nursing assistants placed the resident at the edge of her bed and then left her alone.  This occurred while the resident was waiting for her dialysis appointment. The resident fell off the bed and hit her head on the floor.

The resident suffered a traumatic head injury and died one month after the date she suffered her head injuries. The resident was survived by her three adult children.

The lawsuit brought by the family of this resident alleged that the nursing home chose not to monitor the resident properly in order to prevent her fall. This case was settled as a confidential settlement.

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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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Under a law enacted in Illinois in August 2015, the Authorized Electronic Monitoring in Long-Term Facilities Act became effective on Jan. 1, 2016. Under its provisions, residents and their roommates have the right to consent to having a video or audio recording devices installed in their rooms. The cost of the installation and the equipment must be paid by the resident or the resident’s family or loved ones. Some refer to the video installed in nursing homes as “granny cams.”

Illinois has become one of just a handful of states that allow the recording devices in nursing home residents’ rooms. The law is in response to growing numbers of cases of nursing home abuse that regularly takes place in these facilities at the expense of the most vulnerable of our citizens: the elderly, the ill and infirm.

The Illinois Department of Public Health will establish a fund of $50,000 that will be given each year to residents selected by a lottery to purchase and install monitoring devices in nursing homes. It will be a criminal offense to tamper, obstruct or destroy the devices.  Nursing homes are not allowed under this law to discriminate or retaliate against a resident who installs the monitoring systems.

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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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In 2014 the case of Mary Slepicka was contested wherein it was claimed in the lawsuit that Holy Family Villa Nursing Facility incorrectly billed her during her stay. The key issue in the appeal was venue. The court in 2014 ruled that she was wrong to file her case in Springfield, Ill., instead of Chicago. The unanimous opinion of the Illinois Supreme Court, authored by Justice Charles E. Freeman, said the venue mistake was not fatal to earlier administrative and trial court rulings, which determined she was correctly evicted from the nursing home for failing to pay living expenses.

The Supreme Court justices ordered the case back to the Illinois Appellate Court. The Illinois Appellate Court for the 4th District determined there was not enough evidence to reverse the initial decisions.

In the lawsuit, Slepicka claimed she was qualified for a lower Medicaid rate. Her contract with the nursing home in 2011 listed her as paying a higher out-of-pocket expense. In addition, she was given a room that wasn’t certified for Medicaid coverage.

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Eleanor Groeller died, allegedly because of the nursing home negligence of Evergreen Healthcare Center where she was a resident. Her son, William M. Groeller Jr., who was administrator of her estate, filed a negligence complaint against Evergreen Healthcare.

The trial was held in the Circuit Court of Cook County wherein Groeller’s counsel requested that the judge give a jury instruction on institutional negligence as to the nursing home. However, based upon testimony from Groeller’s nursing expert about the alleged failings of the nursing home’s nurses, the defendant nursing home requested an instruction to the jury on professional negligence. That instruction was designed to instruct the jury on the negligence of the nurses, not the nursing home as an institution.

The trial judge decided to give both of these jury instructions. The jury returned a verdict for the nursing home and Groeller appealed arguing that the instructions were contradictory.

 

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In an odd but troubling state of the law, the Illinois Appellate Court uncovered a hole in the Illinois Nursing Home Care Act protecting nursing home residents. In this case, Marvin Gruby was a resident of Manorcare Health and Rehabilitation Services. He was given notice that the nursing home wanted to involuntarily transfer him or discharge him from its Highland Park, Ill., facility. The move to discharge him was based on the allegations that he endangered the safety and health of other residents.

He filed a lawsuit claiming that the Illinois Department of Public Health deprived him of his right to a hearing under the Illinois Nursing Home Care Act and the federal Nursing Home Reform Amendments (NHRA) and appealed from a circuit court order that dismissed his complaint for administrative review.

The Illinois Department of Public Health started a hearing on Gruby’s objections to his discharge from Manorcare. During the continuance, Gruby was briefly hospitalized for a minor surgical procedure. While he was in Northwestern Memorial Hospital, Manorcare declared it would not permit him to return to its nursing home. Then it withdrew the notice of involuntary discharge or transferring and asked the department to “close this file.”

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