Justia Lawyer Rating for Robert D. Kreisman

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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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The state of California recently reported that long-term facilities across that state were the subject of elder abuse, but the resolutions of those cases were incomplete. These nursing home facilities have been the site of resident injuries and deaths. A state investigation found that the Department of Public Health chose not to investigate accusations of abuse of nursing assistants in many of those facilities across the state or there were open and unresolved cases.

In one instance, a resident at an assisted living facility in southern California believed that she would be safe there. Instead, the 95-year-old died from injuries she sustained while at the assisted living facility. Seven years after her untimely death, the family is still waiting for answers from investigators at the California Department of Public Health. This apparently is not an uncommon occurrence.

The nursing home facility claimed that the resident, Elsie, had died from injuries that she sustained when she fell. However, it was stated by a former nursing director at the same facility that Elsie’s injuries came as a result of being punched by a nursing home assistant.

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Two former employees of Momence Meadow Nursing Center, Vanessa Absher and Lynda Mitchell, asserted that Momence Meadows and its owner, Jacob Graff, consistently chose not to provide nursing home residents with the adequate care. It was alleged that the nursing home staff allowed patients to suffer neglect, lack of medical care and food, lying in urine- and feces- soaked beds, not receiving required prescribed medications and suffering ongoing outbreaks of skin disorders and infections, including bed sores and at least 6 deaths attributable to defendants’ failure of care.

The plaintiffs, the individual whistleblowers and the United States contended that the defendants chose not to meet the Illinois Department of Public Health’s minimum staffing requirements. It was claimed that the defendants were guilty of grossly inadequate staffing levels and knowingly submitted thousands of false claims for payment to Medicare and Medicaid, forged and destroyed medical documents and staffing logs to conceal the inadequate care, instructed the nursing staff not to log negative information related to patient care such as falls and missed meals and medication, and routinely ripped out pages from medical records that would have shown lapses in care. The defendants were alleged to have then replaced medical records with more favorable entries and even forged nurses’ signatures. 

During the employment of Absher and Mitchell, they  repeatedly complained to the nursing homes’ management and reported several incidents to the Illinois Department of Public Health nursing home hotline. 

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An 86-year-old nursing home resident fell as many as 12 times during her stay. This led to the need for a wheelchair. The resident, Ms. Doe, required pain management because of her injuries. A staff member at the nursing home was alleged to have stolen the pain medicine from Ms. Doe.

After Ms. Doe’s death, her family brought a lawsuit against the nursing home claiming that it chose not to implement fall-prevention procedures. In addition, it was claimed in the lawsuit that the nursing home chose not to properly care for Ms. Doe’s needs or perform timely reviews to ensure that she was receiving the care that she required. It was also maintained in the lawsuit that Ms. Doe did not receive the necessary medication because staff members of the nursing home were stealing her pain medicine.

The defendant denied these allegations, but settled the case with a confidentiality condition before trial for $1,750,000.

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A former nursing home employee reported to state health officials that he witnessed severe neglect at the nursing home in which he worked, including a resident’s severe bed sores, an elderly resident lying in a pool of urine and another resident who had fallen and was calling for help, yet remained unattended. These reports of abuse were photographed by the former nursing home employee and reported to the state health officials. The nursing home employee was then fired after being temporarily suspended. 

The trial court has allowed a proceeding to take place with the former employee’s whistle-blowing lawsuit as well as his wrongful termination case. The nursing home had moved to dismiss the lawsuit, which resulted in a temporary shutdown of the rehabilitation center located in Tennessee. 

According to the attorney for the nursing home employee, the man was fired in retaliation for “doing the right thing.” The nursing home claims that the employee violated work rules and patient privacy laws by using his cell phone to take photographs of the conditions at the nursing facility.

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As more Americans reach their golden years, elder abuse in nursing homes, in private homes and in hospitals has become more prevalent. Over 500,000 reports of elder abuse were made in the United States each year for the last several years. Many more instances of abuse are likely unreported.

With advances in technology, families, friends and loved ones of the elderly are taking steps to prevent or catch those who are abusing the elderly. 

Signs and symptoms of abuse are revealed in the form of physical abuse, emotional abuse and even sexual abuse. In addition, there is abuse by neglect, abandonment or financial exploitation; all of these are prevalent among the elderly who are unable to fend for themselves.

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Illinois State Sen. Kwame Raoul, a Democratic from Chicago, has proposed an amendment to the Illinois Code of Civil Procedure in the form of Senate Bill 1912. The purpose of the bill is to create an enforcement mechanism for civil cases that settle, but in which the defendant refuses to comply with the settlement terms. 

The change in law is limited to cases in which money damages are involved in the settlement of cases for personal injury, wrongful death or other tortious conduct. The act would require settling defendants to pay all sums due to the plaintiff within 21 days of the tender of all applicable settlement documents required under this new section.

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