Nursing Home Negligence

Three Connecticut Nursing Homes Face Fines for Negligent Care

April 9, 2013 | Lebowitz & Mzhen

Three Connecticut nursing homes are facing fines for serious lapses in care related to residents who as a result were injured or suffered a further deterioration in health due to improper wound treatment.

In the first incident, according to a state inspection report, the rehabilitation center failed to provide adequate care to a resident for so long that a wound on her leg became “infested with maggots.” The resident had been diagnosed with dementia and other psychological affects, and some time after she developed leg sores, began to refuse treatment, including medications. There had reportedly been a recommendation that she be transferred to an inpatient psychiatric facility, following a psychiatric examination, but the attending physician did not think it was in her best interests. The Department of Public Health imposed a $1,020 fine for the facility’s failure to develop an alternative plan for treatment in the face of the patient’s ongoing refusal for care.

Another facility was also cited with a $1,020 fine for lapses in care related to two patients: one suffered a fall, resulting in a pelvic fracture, and the other was not properly treated for constipation.

The third facility was fined a total of $2,180 for two separate incidents. In one case, a resident had lost over a tenth of her body weight due to apparently losing his/her dentures, and was thus having difficulty chewing. However, the facility’s dietitian was never made aware of the difficulty, which could have resulted in an alternative nutrition plan. The other incident involved a resident who suffered an injury as a result of a transfer from a bed to a wheelchair without the use of a mechanical lift, which was required as a part of the patient’s care plan.

Study by Federal Regulators Finds Higher Rate of Medicare Fraud Among For-Proft Nursing Homes

February 5, 2013 | Lebowitz & Mzhen

A substantial percentage of Medicare claims made by for-profit nursing homes were found to be “improper,” according to a report issued late last year by the U.S. Department of Health and Human Services (HHS). The percentage of improper claims among for-profit facilities was reportedly more than double the rate for non-profit facilities. Bloomberg News profiled several companies that operate for-profit nursing homes, highlighting allegations of unnecessary and even harmful treatments. We have previously explored how for-profit facilities might cut costs in order to boost profits, resulting in neglect of nursing home patients. Similarly, a desire to increase revenue through Medicare billings might lead to unnecessary, abusive treatments. For people selecting a nursing home for themselves or a loved one, this information could be critical to making an informed decision.

For-profit nursing homes vastly outnumber not-for-profit facilities around the country. According to a report by the Medicare Payment Advisory Commission (MedPAC), about seventy percent of skilled nursing facilities (SNFs), which are generally part of a nursing home, are operated on a for-profit basis, while nearly eighty percent of long-term care hospitals (LTCHs) are for-profit. MedPAC, “Report to the Congress: Medicare Payment Policy” at 17 (March 2012). During the period from 2005 through 2009, the number of for-profit LTCHs increased by eighteen percent, while the number of not-for-profit facilities decreased by eight percent. Id.

HHS’s Office of the Inspector General (OIG) released a report in November 2012 entitled “Inappropriate Payments To Skilled Nursing Facilities Cost Medicare More Than A Billion Dollars In 2009.” The report found that SNFs submitted nearly one-fourth of all erroneous Medicare claims in 2009, resulting in $1.5 billion in “inappropriate Medicare payments.” OIG report at 10. The report further found that SNFs misreported basic information about Medicare beneficiaries in almost half of all claims. Id. at 11. It did not expressly draw a connection between for-profit facilities and inappropriate Medicare claims.

Hyattsville Nursing Home Under Investigation for Alleged Neglect

November 14, 2012 | Lebowitz & Mzhen

A nursing home in Hyattsville, Maryland has been under investigation by state health officials for more than a year following multiple allegations of neglect, including at least one death. The number of complaints and cited deficiencies led the state to put the nursing home on a national register of nursing homes with poor track records. Although the nursing home has faced fines totaling thousands of dollars, state officials claim that it has not resulted in improvements to care at the facility.

According to WTTG News in Washington DC, the St. Thomas More nursing home received sixty citations from state health inspectors in 2010 for deficiencies. It received thirty-six citations in 2011, and it has received twenty-seven in 2012 as of mid-November. The state’s Office of Health Care Quality (OHCQ) has reportedly cited it for deficiencies such as medication errors, residents’ rights violations, and failure to follow patient care plans. About three months ago, according to one complaint, a patient died after nursing home staff failed to provide adequate emergency medical treatment. A medical malpractice lawsuit accused the nursing home of negligence in the 2005 death of a resident from bedsore-related complications. The nursing home settled the suit in 2011 for an undisclosed amount.

WTTG reported the story of James Franklin, a former patient at the facility who allegedly nearly died from injuries similar to those of the decedent in the lawsuit mentioned above. Franklin went to St. Thomas More after a hospital discharge, and at the time of his admission, medical records reportedly showed that he had a bedsore described as “small and healing.” Franklin returned to the hospital a month later, where the bedsore was found to have grown to cover a large section of his back and buttocks. The wound had turned gangrenous, and infection had spread deep into his tissues. He was in septic shock and at risk of imminent death. He is reportedly recovering at a different nursing home, but still has health difficulties resulting from the bedsore. Franklin’s wife filed a formal complaint against St. Thomas More with OHCQ. An investigation of Franklin’s case by state health officials reportedly found no evidence of abuse or neglect, but the Franklins are persisting in their claims.

Verdict Against Nursing Home in Medication Error Case Based on Res Ipsa Loquitur Doctrine: Freudeman v. Landing of Canton

November 7, 2012 | Lebowitz & Mzhen

A woman’s estate filed suit against the nursing home where she lived until the end of her life, alleging that a medication error by nursing home staff caused severe health complications leading up to her death. A jury found the nursing home liable in Freudeman v. Landing of Canton and awarded compensatory and punitive damages. The defendant filed a motion for judgment as a matter of law on multiple issues, including whether the court properly instructed the jury about the doctrine of res ipsa loquitur and whether the plaintiff had made an adequate case for punitive damages. The court ruled in the plaintiff’s favor on the motion.

Dorothy Freudeman lived at the Landing of Canton, an elder residential facility in Ohio. In addition to her residency contract, she signed a separate contract for the administration of prescribed medications by the nursing home staff. According to the plaintiff’s complaint, Dorothy Freudeman received an incorrect medication from a staff member that resulted in dangerously low blood-sugar levels. This had a severely adverse impact on her health, until she died fifteen months later.

The executor of Dorothy Freudeman’s estate, Dennis Freudeman, filed suit against the Landing in a Common Pleas Court in Ohio. The suit alleged that the nursing home, through its staff, was negligent in administering the wrong medication, and that this was the proximate cause of the decedent’s injuries and a contributing factor in her death. The defendant removed the case to the U.S. District Court for the Northern District of Ohio. After a jury trial beginning in August 2011, the jury found for the plaintiff and awarded damages.

Mandatory Arbitration Clauses in Maryland Nursing Home Admissions

October 3, 2012 | Lebowitz & Mzhen

People involved in legal disputes may choose, instead of litigation, to submit their case to a process like mediation, where a neutral person tries to help all sides in a dispute reach a mutually agreeable settlement; or arbitration, where one or more neutral individuals hear arguments from all sides to a dispute and propose a solution. Arbitration can be non-binding, meaning any party can reject the arbitrator’s decision and proceed to litigation; or binding, in which case no party may challenge the arbitrator’s decision in a court of law. These practices can offer an efficient means for settling grievances, but in some cases, people who might prefer litigation find themselves contractually bound to arbitration, often binding. Maryland and federal law generally allow nursing homes to include arbitration provisions in their contracts with residents with some limitations. Anyone signing admission papers for a nursing home, for themselves or someone else, should review them very carefully.

NBC News recently reported on a man who checked his father into a nursing home after his father suffered a stroke. When his father died due to alleged negligence, the man sought advice as to his legal rights. He learned that an arbitration agreement was among the many papers he had signed during his father’s admission, thus barring him from the courthouse.

Arbitration can be an expensive process for individuals, with the arbitrator’s fees often split equally between the parties. Arbitrators are often former attorneys or judges with high hourly rates, unlike judges in the judicial system, whose paycheck comes from taxpayers. The process can lack the transparency of the court system, where most documents are public record. Arbitration is a private transaction, occurring behind closed doors. For reasons that remain a subject of dispute, studies cited by NBC have shown that arbitrations result in fewer monetary awards for patients or their families than litigation.

Lawsuit Against Nursing Home May Proceed on an Ordinary Negligence Claim After Court Dismisses Medical Malpractice and ADA Claims

September 25, 2012 | Lebowitz & Mzhen

A woman may replead her lawsuit against a Tennessee nursing home for the death of her mother as an ordinary negligence claim, according to a ruling from the Sixth Circuit Court of Appeals in Southwell v. Summit View of Farragut. She filed suit claiming medical malpractice and violations of the Americans with Disabilities Act (ADA), and the defendant obtained a dismissal of both claims. The appellate court remanded the case to allow the plaintiff to plead ordinary negligence.

The plaintiff’s mother, Claudia Atkins, who had hearing and sight impairments, was receiving treatment at the University of Tennessee Medical Center for cancer and emphysema. She was transferred to Summit View of Farragut, a nursing home in Knoxville, on December 11, 2009. She died on October 6, 2010. The plaintiff sued Summit View on November 23, 2010 in state court, asserting causes of action for “negligence-medical malpractice” and wrongful death.

Summit View removed the case to federal court in December 2010 based on diversity jurisdiction, as the plaintiff was a Florida resident, and her mother remained a legal Florida resident despite her stay in a Tennessee nursing home. The defendant then filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion, and the plaintiff appealed to the Sixth Circuit.

Baltimore Nursing Home Closes After Owner Files Bankruptcy; Almost Seventy Residents Must Relocate

September 12, 2012 | Lebowitz & Mzhen

A Baltimore nursing home announced that it will shut its doors by the end of September 2012. The nursing home’s parent company, Ravenwood Healthcare, Inc. of Baton Rouge, Louisiana, filed for bankruptcy earlier this year. The facility lost its Medicare and Medicaid funding, and Ravenwood has been unsuccessful in locating a buyer. Residents received notice to relocate within thirty days, leaving many of them in an extremely difficult situation.

According to the Baltimore Sun, Harborside Nursing and Rehabilitation Center was the first nursing home in Maryland to accept patients suffering from AIDS in 1985. Despite this history, the facility has had difficulties with health and safety inspections over the years. The building was originally a hotel, and it has had difficulties over the years adapting to use as a nursing home and to modern structural standards. Inspectors with the state’s health department reportedly conducted an inspection of the nursing home during the period from February 29 to March 9, 2012. They identified more than thirty deficiencies, many of which were safety problems due to structural issues. As a result, the Sun reported, the Centers for Medicare and Medicaid Services (CMS) cut off Medicare and Medicaid funding to the nursing home, effective in September.

CMS’s “Nursing Home Compare” website gives Harborside one out of five stars, meaning “Much Below Average,” for both its overall rating and its health inspection results. It identifies the nursing home as a “Special Focus Facility,” meaning it has a “recent history of persistent poor quality of care” as determined by CMS inspectors. The last “standard health inspection” at Harborside, according to the website, took place on December 7, 2010. The site states that the facility has twenty health deficiencies, well above the state average of 10.6 and the national average of 7.5.

Nursing Home Could Lose Medicare and Medicaid Funding Due to Multiple Alleged Deficiencies

September 4, 2012 | Lebowitz & Mzhen

A nursing home in Greenwood, Mississippi could lose all of its funding through the Medicare and Medicaid programs if it fails to correct certain problems alleged by the federal government. The Centers for Medicare and Medicaid Services (CMS), the federal agency that administers both programs, recently notified Greenwood’s Golden Age Nursing Home of multiple deficiencies, including allegations of criminal conduct by nursing home staffers. The number and nature of the deficiencies, in large part because of the effect they have on the safety of the nursing home’s residents, put its participation in Medicare and Medicaid in jeopardy.

The Jackson Clarion-Ledger reported that CMS notified the nursing home in late August 2012 of twenty-four deficiencies occurring over the past fifteen months. It stated that it will continue to make payments for the nursing home’s residents until September 29 but will not pay for residents admitted after August 30. This gives the facility thirty days to remedy the deficiencies.

CMS reported that it had conducted three surveys of the facility in response to complaints in the past fifteen months. It compared the total number of deficiencies in the facility, twenty-four, to the national average of 7.5. The average number of deficiencies for facilities in Mississippi is six. The most recent survey of the nursing home, conducted on February 10, 2012, identified deficiencies in eight broad categories based on the regulatory requirements for participation in the Medicare and Medicaid programs:
1. Privacy and confidentiality of residents’ personal and medical information and records;
2. Provision of care that maintains “dignity and respect of individuality”;
3. Adequate housekeeping and maintenance;
4. Safety and cleanliness in food handling;
5. Labeling of drugs and maintenance of drug records in accordance with professional standards;
6. Effective planning to control the spread of infections;
7. Monitoring of nurse aides to ensure they can provide for resident needs; and
8. Recordkeeping on individual residents that meets accepted professional standards.

Appeals Court Reinstates Class Action Lawsuit Against Nursing Home Operator Alleging Rights Violations

August 29, 2012 | Lebowitz & Mzhen

A California appeals court has reinstated a putative class action lawsuit filed by patients at sixteen nursing homes located in Alameda County. The defendants in Shuts v. Covenant Holdco, LLC, et al are related business entities that own and operate the homes. The plaintiffs allege various violations of state regulations regarding the quality of care provided to nursing home residents. After a superior court judge dismissed the case based on the defendants’ argument that only state regulators have the right to enforce nursing home standards, the court of appeals reversed and reinstated the case.

Covenant Care, a company based in Orange County, operates forty-five nursing homes in seven states. At least sixteen are located in Alameda County, California. The plaintiffs presented themselves as a putative class of people who resided in Covenant’s nursing homes during a “class period” from December 15, 2006 until December 16, 2010. State law, according to the appeals court, allows a current or former nursing home resident to file suit against the facility’s licensed operator for violations of the Patients’ Bill of Rights or other rights under state or federal law. The plaintiffs claimed that Covenant routinely understaffed its facilities in violation of state law, which they said requires a nursing home to provide each patient with at least 3.2 hours of skilled nursing care per day. Covenant allegedly failed to meet this requirement on at least thirty-five percent of the days in the class period.

Covenant’s demurrer to the complaint argued that the plaintiffs’ entire case relied on allegations of a breach of the minimum-nursing-hour requirement, but that the California Department of Health had the exclusive authority to enforce the requirement. The defendants also asserted the doctrine of equitable abstention, which allows a court to abstain from hearing a case that would require the court to act in the capacity of an administrative agency. The circuit court dismissed the plaintiffs’ case without leave to amend the pleadings. The plaintiffs appealed to the First Appellate District.

Nursing Home Administrator Receives 20-Year Prison Sentence for Health Care Fraud

August 22, 2012 | Lebowitz & Mzhen

A former nursing home operator received a twenty-year prison sentence from a federal district judge in Atlanta, Georgia on August 14, 2012. George Houser, age 64, was convicted in April of defrauding state Medicare and Medicaid programs. As a result of the fraudulent scheme, nursing home residents went without adequate care for years.

According to the U.S. Attorney’s Office, Houser and his wife ran two nursing homes in Rome, Georgia from July 2004 to July 2007, and another home in Brunswick from September 2004 to September 2007. The two Rome nursing homes each housed about one hundred residents, and the Brunswick facility had 204 beds. Houser submitted bills to Medicare and Medicaid for about $39.4 million during the period from July 2004 to September 2007. He certified to the government that he was providing health care, a clean living environment, and a good quality of life for the residents of the three homes. He received $32.9 million in payments from Medicare and Medicaid.

Of the total amount received from the federal government, prosecutors alleged that Houser appropriated over $8 million for personal use. This included $2.7 million to purchase real estate as part of a planned hotel in Rome, as well as plans for hotels in Brunswick and Atlanta. He also allegedly bought a $1.4 million house for his ex-wife, and put her on the payroll of one of the nursing homes in lieu of alimony.

During this time, conditions for the residents in the three nursing homes were described repeatedly as “inadequate.” Numerous staff members reportedly resigned after paychecks started bouncing. As employees left, few applicants sought the open positions. This left the facilities significantly understaffed. The facilities also fell into disrepair, with few resources applied towards upkeep of the buildings. Roof leaks and broken air conditioning units became common. As a result of non-payment to the nursing homes’ vendors, the facilities experienced shortages of food, medicine, and even cleaning supplies. Some employees used their own funds to buy food for residents.