Justia Lawyer Rating for Robert D. Kreisman

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Frank Hegyi, 91, was a hospice care resident with dementia at the defendant Fair Oaks Health Care Center in Crystal Lake, Ill. On June 10, 2008, he was sitting in his wheelchair in the facility’s dining room when he stood up and fell, fracturing his right femoral neck. He was hospitalized and died of unrelated causes on June 23, 2008.

His family sued the nursing home for negligence in violation of the Illinois Nursing Home Care Act, maintaining that the nursing home chose not place a “lap buddy” on his wheelchair. Damages were sought for pain and suffering.

The defendant nursing home argued that Hegyi was supervised appropriately and he was in the main dining room of the nursing home where he could be viewed frequently by the staff. The nursing home also argued that the use of lap buddy – essentially a cushion going across the wheelchair – was not required and its use had been decreased pursuant to restraint reduction requirements because state and federal law prohibit the nursing home from using restraints that could not be removed by the nursing home resident.

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Rosemary Jackson was a resident of the defendant’s Nature Health Trail Center in Mount Vernon, Ill., where she was rehabilitating after a colonoscopy at a different facility. She was 85 years old when she returned to Nature Trail following that colonoscopy. Over the next four days she was lethargic and showed signs of changes in her mental status.

Her daughter asked the nursing home staff to call the attending physician, but no call was made. On May 17, 2010, Jackson’s daughter telephoned the attending physician herself and told the doctor of her concerns about her mother’s condition. The doctor ordered an evaluation at the hospital.

An ambulance was called, but Jackson refused to go to the hospital. The daughter maintained that the nursing staff talked her out of going to the hospital.

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Salvador Palmieri was 86 when he underwent heart surgery and then experienced complications, which necessitated prolonged hospitalization in his hospital bed. A week after surgery, a nurse noticed new bedsores on his buttocks.

The hospital’s wound care nurse recommended cleaning and dressing the wound. However, a few months later, while Palmieri was still hospitalized, he became septic.

Palmieri was transferred to another hospital where he was diagnosed as having Stage IV sacral pressure sore, sepsis and other sores on his extremities. In spite of the medical treatment given, Palmieri died of sepsis, respiratory and kidney failure. He was survived by his wife and two adult sons.

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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.

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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.

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The New York Times has reported that a California nursing home fined by the state for substandard nursing care and facing many lawsuits has gone to the bankruptcy court to try to extinguish the burden of these fines and coming judgments. The nursing home faced many lawsuits filed by families on behalf of patients.

The nursing home company, North American Healthcare, which owns and operates 30 nursing homes in California and other Western states, was criticized for taking the bankruptcy route to avoid paying out judgments and verdicts brought by injured or killed nursing home residents.

In 2014, another California nursing home chain filed for bankruptcy for the same reason. Also in Florida, a bankruptcy judge forced Medicaid officials to continue paying a nursing home that was protected under its Chapter 11 bankruptcy filing.

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It is not new that nursing home residents are too often at risk for abuse, neglect and injury in the more than 17,000 nursing home facilities operating in the United States. Too many times these facilities are understaffed or staffed with untrained or unskilled workers. All of this results in many reports of serious physical, verbal and even sexual abuse in Illinois nursing homes and in other states.

It has been more than a decade since there was a two-year investigative study completed that found more than 9,000 instances of abuse. The most common abuse problems are untreated bedsores followed by inadequate medical care, malnutrition, dehydration, falls, inadequate hygiene and cases of wandering residents.

The aging of adult Americans places even more stress on nursing home facilities and long-term care facilities in which the aging are most likely to be residing. The cost of maintaining a resident at a qualified nursing home is now out of reach for many families. Many times a family member or a loved one becomes unmanageable at home because of illness, injury, age, dementia or other onset of the conditions related to aging.

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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.

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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.

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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).

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