Justia Lawyer Rating for Robert D. Kreisman

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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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There have been increasing reports in recent years about elder abuse, neglect and exploitation. Many elderly adults are abused in their own homes, in relatives’ homes, and in facilities responsible for their care. The abuse can be physical, emotional, sexual or it can occur in the form of financial exploitation. Elder abuse can also occur in the form of neglect or abandonment.
Governor Pat Quinn has signed several new laws to protect senior citizens against crimes committed by their caretakers or family members. The new laws will promote safety, increase oversight and accountability for caregivers and help authorities identify and respond to reports of abuse, neglect and exploitation.
“Our seniors deserve our respect and protection against those who would take advantage of them,” Gov. Quinn said in a press release. “Safeguarding seniors from exploitation and abuse will make our state stronger.”

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In order to file a civil lawsuit, you need to have some concrete damages, such as medical bills, lost time from work, or property damage. However, oftentimes a party might also be seeking some non-concrete damages, such as loss of normal life, pain and suffering, or loss of society. The cost of these non-concrete damages is more subjective and therefore harder for the jury to quantify. However, the difficulty in determining the cost of these damages should not preclude a jury from awarding them.
In the Illinois wrongful death lawsuit of Estate of William Sloan, deceased v. South Shore Nursing & Rehabilitation Center LLC, et al. 09 L 14819, the trial jury elected not to award any damages for the plaintiffs’ loss of society. As a result, the plaintiffs appealed the jury verdict for its exclusion of the plaintiffs’ loss of society claim on the basis that the plaintiffs themselves had also suffered as a result of the decedent’s death.
The original lawsuit was filed after William Sloan, a resident at South Shore Nursing and Rehabilitation Center, lit himself on fire after being left unsupervised in his room. Sloan had been trying to light a cigarette, but ended up setting himself on fire and suffering from first, second, and third degree burns. Those burns left Sloan susceptible to developing an infection, which in turn led to his death.
Sloan’s daughters brought a wrongful death claim against the nursing home for its negligence in leaving Sloan unsupervised with smoking materials. The claim was brought under the Illinois Nursing Home Act and alleged that South Shore was responsible for Sloan’s death. The Illinois jury entered a $1.65 million verdict against South Shore, which included damages for Sloan’s medical expenses, his pain and suffering, disfigurement from the fire, and for his loss of normal life. However, the verdict failed to include any damages for the loss of society his daughters suffered upon his death.

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In the recent case of Vincent v. Alden-Park Strathmoor, Inc., No. 110406, 2011 WL 1077706 (Ill.Sup.Ct.), the Supreme Court reviewed the nursing home malpractice lawsuit to determine whether or not punitive damages are allowed in the event that the wronged party is deceased. The Vincent case was filed by the family members of Majorie Vincent, an elderly resident of Alden-Park Strathmoor, after Majorie died while living at the long-term nursing facility.
Majorie’s family filed a complaint under the Illinois Nursing Home Care Act, which alleged that Alden-Park had violated the Act through its negligent and abusive treatment of Majorie. The complaint specifically accused Alden-Park of failing to provide Majorie with adequate medical and personal care and was willful and want in its conscious and reckless disregard of her health and safety.
In its complaint, the plaintiffs reserved the right to seek punitive damages, which are damages awarded as punishment for the defendant’s willful and wanton behavior. And while the plaintiffs did not seek the damages in their original complaint, they did reserve the right to do so at a later date. However, the defendants brought a motion seeking to bar the plaintiffs from requesting punitive damages at any time. The motion was based on the general assumption because the Illinois Nursing Home Care Act does not specifically state whether or not punitive damages survive a person’s death, that they do not.

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The Illinois wrongful death lawsuit of Estate of Richard Schrik, deceased v. Oyindamola Omole, RN, No. 07 L 10740, involved claims that the decedent died as a result of nursing negligence. The nursing home resident fell while under the supervision of a nursing staff member and was the victim of a poor neurological exam by the same nurse.
Richard Schrik had been living at the Howe Development Center, a nursing residence run and operated by the State of Illinois for residents with developmental disabilities. Schrik had severe mental retardation and had been diagnosed with the mental abilities of a three or four year-old. He had been living in state institutions since 1977.
In 2002, Schrik was noted to be running around the residence facility, throwing garbage cans and acting out in general. While running around, Schrik fell and hit his head. His fall resulted in a severe fracture and the hyperextension of his neck, which resulted in a spinal cord injury.
At the time of Schrik’s fall, Oyindamola Omole, a registered nurse (RN), was the nurse in charge. While the wrongful death complaint did not hold Nurse Omole responsible for Schrik’s fall, it did include claims of nursing negligence regarding the exam she conducted immediately following the decedent’s fall.

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