Justia Lawyer Rating for Robert D. Kreisman

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A Georgia jury has awarded $43.5 million in damages related to the abuse and neglect of an 80-year-old man, Morris Ellison. Ellison was a resident of a nursing home where the ownership held title to a string of nursing facilities in and around the state of Georgia. Ellison eventually died in this nursing home.

Along with the neglect and possible abuse, Ellison was found to have been malnourished, dehydrated and lacking sufficient nursing and medical care, all of which was a contributing factor in hastening his death. But the background of this catastrophic case was that the nursing home owners had bilked Medicare and Medicaid out of tens of millions of dollars.

In this case, the nursing home’s individual owner and his wife ran three nursing facilities or long-term care facilities in Georgia. According to newspaper reports, this couple had a net worth of almost $100 million, relying almost exclusively on Medicaid and Medicare payments to operate their nursing home empire. According to the testimony in the case, one of the nursing home directors stated that the facilities were so lacking in funds that they were unable to pay for laundry, essential supplies and personnel wages for the nursing homes. The owners were systematically draining money out of the nursing homes, which resulted in a lack of food supplies, water, medicine, personnel and basic cleaning supplies.

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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.

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In a case that was filed in confidential style, Ms. Doe, an 85-year-old woman with dementia and other medical issues, lived in a nursing home that was owned by Kindred Healthcare Inc. A nursing aide penetrated Doe’s vagina with an object while the two were in a bathroom next to her room. Despite Doe’s heavy vaginal bleeding after the incident, Doe was not taken to the hospital for several days.

Doe was diagnosed later as having suffered vaginal trauma and bruising resulting from this sexual assault.

Doe’s family sued Kindred Healthcare claiming liability and injuries to Doe because of the sexual assault. The jury entered a verdict in favor of Doe’s representative in the amount of $2.01 million.

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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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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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Marie Gardiner purchased a long-term care policy from insurance company giant CNA in 1993.  The idea was to have security in knowing that in the event of her need for a nursing home or an assisted living facility to take care of her, she would have this policy in place.  Gardiner unfortunately broke her hip in 2008 and moved into The Village at Buckland Court (Village).  She then filed a claim with CNA, and it was approved.  When her health improved, CNA terminated the coverage for the claim in 2011 advising Gardiner that if her “care needs change or increase in the future,” the company would review her policy.

In 2012, Gardiner fell down a flight of stairs and fractured her sacrum.  She reapplied for benefits at CNA under the long-term healthcare policy.  CNA denied her claim, noting that the Village was “not a qualified provider.”

In the lawsuit Gardiner filed against CNA, she stated that a company representative denied her claim because a nurse was not on the premises at all times and because the Village was a “managed residential community,” not a licensed assisted living services agency.

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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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An epidemic of sorts has been uncovered in nursing homes around the country. It has become apparent that nursing home residents stricken with dementia or other mental and physical deficiencies are unable to take care of their daily toothbrush chore.  What that means is that residents are not brushing their teeth regularly. Nursing home residents’ teeth may become increasingly decayed with plaque or cavities, which often leads to gum disease, cracked teeth and other hygiene-related diseases.

Nursing homes have long overlooked the need to care for disabled residents’ dental hygiene. Late this past summer, the New York Times disclosed that many nursing home residents across the country were stricken by cavities, gum disease and cracked teeth, in part because their teeth were not kept clean. 

Nursing homes most often focus on resident health and safety issues at their facilities, but many overlook dental hygiene. 

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