Nursing Home Negligence

Nursing Home Fined After Staffers Failed to Help Resident Who Fell Down for Nearly an Hour

May 29, 2012 | Lebowitz & Mzhen

A nursing home in Iowa must pay a $15,000 fine for failing to provide needed treatment to a resident who fell and suffered a head injury. The resident reportedly lay on the floor for almost an hour while staffers attended a holiday party nearby. Nursing home administrators say they plan to appeal the state’s order, and they dispute the state’s interpretation of the video, saying that investigators viewed it “out of context.”
The incident occurred during the afternoon of December 23, 2011 in the dementia unit at All-American Restorative Care in Washington, Iowa. According to state investigators who viewed footage from the facility’s video-monitoring system, a female resident stumbled backwards and fell while walking down a hallway at 2:51 p.m. No one on the staff witnessed the fall, but within seconds, two employees reportedly appeared at a nurse’s station with a view of the fallen woman. Although the woman was “barely moving,” neither staffer appears to have offered her assistance. One of the staffers reportedly told investigators later that she called to the woman to ask if she was alright, and that the woman said “Yes.” The second staffer reported that this particular resident being on the floor was a “recurring situation.”
The resident remained on the floor for another thirty minutes on the video, and then a third staffer appeared. This staffer did not offer any assistance to the resident, according to investigators. A fourth employee appeared on the video at 3:37 p.m., forty-six minutes after the fall. Three staffers enter the video two minutes later and lift the woman up, reportedly without first assessing her neurological condition, and take her to her room. One of these staffers later told investigators that the woman was “pretty out of it” at this point. Nursing home staffers took the woman to the hospital at around 5:00 p.m. for a head wound. She had a cut on the back of her head that required four staples.

Study Finds Link Between Feeding Tubes and Bedsores

May 22, 2012 | Lebowitz & Mzhen

A new study suggests that previous beliefs regarding certain dementia patients’ use of feeding tubes are incorrect. Feeding tubes, the belief went, could rectify nutritional imbalances and therefore aid in the healing of pressure ulcers, also known as bedsores. Research has generally been inconclusive, but this new study appears to disprove the premise entirely.

Patients reviewed in the study who had bedsores when receiving the feeding tube showed no improvement, and patients who previously lacked bedsores before were more likely to develop them with the feeding tube. The study’s conclusions are important to nursing home residents, their families and loved ones, and those who advocate for their safety.

The study looked at hospital records for patients with advanced cognitive impairment, commonly known as dementia, who had a percutaneous endoscopic gastrostomy (PEG) tube inserted, and were then returned to the nursing homes where they live. The purpose of the feeding tube is often to correct nutritional imbalances in the patients, who may suffer from eating disorders brought on by dementia. The study’s lead author has also said that nursing homes and hospitals, looking to cut expenses where possible, may view feeding tubes as a good investment, even if they are not strictly medically necessary. Using feeding tubes in residents suffering from dementia frees up staff members who might otherwise have had to feed those residents by hand.

The study’s findings indicate that not only does the use of feeding tubes not improve a patient’s recovery from bedsores, but that these devices may actually put patients more at risk for having bedsores. Nursing home residents who had no bedsores upon arriving at the hospital were 2.27 times more likely to get a bedsore after getting the feeding tube. Among residents who already had bedsores when they received their feeding tube, researchers found that the bedsores were less likely to heal.

Nursing Home Staffer Charged with Elder Abuse for Allegedly Stealing Medicine

May 15, 2012 | Lebowitz & Mzhen

Prosecutors in Great Falls, Montana have charged former nursing home employee Jennifer Allgrunn with drug possession and elder abuse. The theft of medications allegedly went on for several months, during which time residents might not have had enough medications for their needs. Although the underlying alleged offense is essentially theft and a drug offense, the fact that it directly harmed the nursing home’s elderly residents led to a criminal charge for elder abuse.

Police arrested Allgrunn on Friday, May 4, 2012, after staff at Goldstone Assisted Living Home complained about ongoing and routine drug thefts. Allgrunn had worked at Goldstone since December 2011. Police found nine prescription pills on Allgrunn’s person, including the painkiller hydrocodone, as well as additional medication packaging. Goldstone administered all of the medications in Allgrunn’s possession. She reportedly admitted to police that she had been regularly stealing drugs from the nursing home since December.

Prosecutors charged Allgrunn with elder abuse and criminal possession of dangerous drugs. Court documents filed by prosecutors allege that her thefts harmed the elderly residents of the nursing home by depriving them of medication, and therefore sufficient medical care.

Family of Man Who Died from Bedsores Receives $3.2 Million Jury Award

May 8, 2012 | Lebowitz & Mzhen

A Colorado jury ruled for the family of a man who died due to complications from bedsores. The family of Henry Frazier sued the nursing home where the man lived, alleging that staff members’ neglect caused Frazier to develop the bed sores, and that the nursing home failed to notify the family of his condition. The jury awarded the family $3.2 million for Frazier’s wrongful death.

Frazier first entered Pioneer Healthcare Center in Rocky Ford, Colorado in May 2009. For a time, he reportedly worked as a janitor at the center, although he suffered from Parkinson’s Disease and had difficulties with mobility. His family, including his wife and adult children, visited him often, with his wife spending two to four hours a day with him. Despite this, the family was not made aware of the injury that would take Frazier’s life until it was too late.

The bedsores began to develop in September 2010, when he was no longer able to move about the facility. Frazier stopped eating or drinking. Confined to his bed, he became “unresponsive.” By early October, Frazier had reportedly developed severe bedsores on his buttocks and scrotum, according to a nurse’s aide who gave this information to Frazier’s son. The nurse’s aide said that he was concerned that he might lose his job for speaking out, but he was also afraid for Frazier’s life. The bedsores had become infected and gave off a foul odor.

Nursing Home Closes After Years of Ongoing Problems

April 27, 2012 | Lebowitz & Mzhen

A Rhode Island nursing home has voluntarily closed after several years of complaints and investigations over non-compliance with both state and federal standards of care. Faced with the revocation of its license, the facility’s management concluded that it would take longer to complete the required improvements to bring the facility into full compliance than was available. The facility has therefore closed, and the state is assisting in moving residents to new facilities.

Complaints against Pawtuxet Village Care and Rehabilitation Center in Warwick, Rhode Island go back at least five years, according to local news station WJAR. Rhode Island’s Secretary of Health and Human Services said that the facility has a “long history of noncompliance” and of not maintaining appropriate standards of care for a nursing home. Neglect topped the list of complaints, which have included allegations of poor maintenance and management of residents’ medications, medication errors, bedsores and other injuries, and other quality of life issues. The state has reportedly cited the nursing home “repeatedly” over the past three years.

State officials cited the facility on February 24, saying the nursing home patients were in “immediate jeopardy.” On March 13, the state notified the nursing home that it would pursue action to revoke the facility’s license. The state also recommended to the Centers for Medicare & Medicaid Services (CMS) that it should cut off the facility’s participation in both the Medicaid and Medicare programs.

The nursing home’s administration reportedly retained a third-party management company to take over operation of the facility and try to turn it around. It was apparently not enough. CMS suspended the facility from its programs, and the state pressed forward on its license revocation action. The nursing home had a right under state law to a hearing on the revocation. On April 10, nursing home administrators announced that they would close the facility, saying that the home’s compliance problems could not be fixed on the state’s timetable.

Owner of Nursing Home Charged with Neglect for Second Time in Eight Years

April 20, 2012 | Lebowitz & Mzhen

Police in North Charleston, South Carolina arrested a nursing home owner on Thursday, April 12, 2012 after an inspection of the facility reportedly found extensive evidence of neglect. Andrea Magwood, age 68, is accused of neglecting vulnerable adults under her care. She went free on April 16 on a $250,000 bond. Her nursing home is currently closed, and authorities have transferred the thirteen residents to other facilities. Magwood faced a similar investigation and charges in 2004 relating to alleged abuse at the same facility.

The Governor’s Office of Ombudsman, the office charged with investigating reports of abuse or neglect in nursing homes, contacted North Charleston police on April 5 with concerns about the health of one of the residents. A 79 year-old resident of Magwood’s nursing home, Fair Havens Manor, had reportedly been admitted to the hospital. Doctors diagnosed him with severe dehydration and malnutrition, and they reportedly found a subdural hematoma on his head that possibly required surgery. Inspectors arrived at the home later on April 5. They reported finding mold clinging to the walls and cockroaches “crawling all over.” Residents allegedly received rotten food, and medications lacked labels or records that would indicate to which resident they belonged.

By April 12, North Charleston authorities had condemned the home’s two buildings and arrested Magwood. EMS personnel assisted police in removing the residents from the facility and taking them to a nearby hospital for medical assessment. From there, the residents would either receive medical care or be transferred to another facility.

Prosecutors charged Magwood with neglect of a vulnerable adult, a felony offense in South Carolina with a maximum penalty of five years in prison. State statutes also allow the attorney general’s office to being a civil action for a penalty of up to $30,000 for a nursing home owner who allegedly fails to protect residents from neglect. A judge set Magwood’s bond at $250,000 on April 13, and she reportedly left jail on Monday, April 16.

Magwood faced similar charges in 2004 when another resident reportedly suffered malnutrition and dehydration. Police raided the home, then known as Genesis Nursing Home, In June 2004 after a bank teller reported several large withdrawals by one of the residents while accompanied by Magwood. The teller also reported that the resident showed signs of physical abuse.

Proposed Maryland Legislation Would Increase Criminal Penalties for Elder Abuse

March 16, 2012 | Lebowitz & Mzhen

A bill that would increase criminal penalties for people who engage in elder abuse has met with unfavorable reports in the judiciary committees of both houses of the Maryland Legislature. The bill, known as the John H. Taylor Act, has been introduced in the Legislature several times, and its supporters are not likely to give up. The bill’s namesake, was ninety years old when he suffered several severe beatings by an in-home caregiver in 2007. He was recovering from multiple strokes at the time. One of the beatings was caught on tape, and his daughter, Jacqueline Taylor, learned that he had suffered three more beatings from his caretaker that month. She showed the video to the House Judiciary Committee at a hearing in January and testified in support of the bill.

According to a website set up by Jacqueline Taylor, the caretaker, Anastacia Oluoch, was arrested in 2007 and charged with four counts each of abuse or neglect of a vulnerable adult, second degree assault, and reckless endangerment. All of the charged offenses are felonies. She was released on bail and fled the country before her trial date. She was reportedly arrested in Kenya in 2011 and could be extradited to the United States. John H. Taylor passed away in 2009.

Under current Maryland law, abuse or neglect of a vulnerable adult applies to a person with a “contractual undertaking to provide care” to an adult lacking “the physical or mental capacity” to provide self-care. “Abuse” includes intentionally inflicting pain or injury and sexual abuse. “Neglect” includes the withholding of food, medical care, and other necessary services. Abuse or neglect that involves sexual abuse or results in death or serious physical injury is a first-degree offense, carrying a maximum penalty of ten years’ imprisonment and a $10,000 fine. All other abuse or neglect is a second-degree offense, with a punishment of up to five year’s imprisonment and a fine of $5,000.

The proposed legislation would modify the statutes defining both first- and second degree abuse or neglect of a vulnerable adult. It would prohibit a District Court commissioner from releasing a defendant charged with either offense prior to trial. A judge, subject to certain requirements and conditions, could still authorize a defendant’s release, with provisions specifically preventing a defendant from leaving the country. The bill also doubles the maximum penalties for first- and second-degree offenses. Critics of the bill worry that it may infringe on a defendant’s due process rights and limit judges’ discretion.

Man Who Won $200 Million Judgment Against Nursing Home for His Mother’s Wrongful Death Faces Corporate Shell Game When Trying to Collect

February 28, 2012 | Lebowitz & Mzhen

Suffering from dementia and confined to a wheelchair, 94 year-old Florida nursing home resident Elvira Nunziata needed near-constant supervision. Still, she managed to pass through a door that should have been locked, falling down a stairwell and sustaining fatal injuries in 2004. Her son, Richard Nunziata, knew someone at the nursing home had made a fatal mistake.

Nunziata filed suit against the nursing home for wrongful death, claiming that negligent supervision by staff led directly to his mother’s death. We reported last month in this Maryland Nursing Home Lawyer Blog that a jury awarded him $200 million in damages. There was one major problem with the verdict, however: no one showed up to defend the suit at trial. This case demonstrates how the law holding nursing homes liable for injuries has not caught up with the way nursing homes are owned and managed.

For-profit nursing homes, which have surged in the past decade or so according to the Tampa Bay Times, often split ownership of a nursing home among several different business entities. Each company would own different parts of the nursing home operation or handle responsibility, and liability, for different parts of the business. One company might own the building housing the nursing home, while another company owns the equipment and yet another handles payroll and personnel. If one part of a nursing home operation runs into legal trouble, a parent company can dissolve that business entity and create a new one. This process has little to no transparency. In this environment, it can be exceedingly difficult for someone seeking to make a claim for an injury to even identify which business is liable. It is even difficult for state and federal regulators to determine where to put liability for regulatory infractions.

In Nunziata’s case, Pinellas Park Care and Rehab Center, the home where his mother last lived, was owned by one company and operated by another. Trans Health Management, Inc., the home’s operator, reportedly had its corporate status revoked by the state of Florida by the time Nunziata sued in 2005. A forensic accountant testified at trial that Trans Health’s business was sold in 2006. Three separate companies each bought or “inherited” Trans Health’s operations, management contracts, and liabilities. The company that ended up with its liabilities, Fundamental Long Term Care Inc., also lost its corporate status and no longer exists. The accountant testified that most of these companies existed for the sole purpose of shuffling Trans Health’s assets and liabilities around. Nunziata’s best bet, for which there may be some precedent, is to go after the private equity companies that put all these businesses together in the first place.

Jury Awards $200 Million in Nursing Home Wrongful Death Case Where Defense Did Not Show Up

January 25, 2012 | Lebowitz & Mzhen

A jury in Pinellas County, Florida rendered a $200 million verdict against the parent company of a nursing home. The lawsuit stemmed from the 2004 death of a resident who fell down a flight of stairs in a wheelchair. The case is particularly interesting not only because the verdict might be the largest in Florida history, but also because no one appeared at trial on behalf of the defendant.

In October 2004, 92 year-old Elvira Nunziata “slipped away” from a group of residents at Pinellas Park Care and Rehabilitation Center, according to the Tampa Bay Times. She entered a stairwell and, still strapped into her wheelchair, fell down about ten stairs. Staff did not notice her absence for at least an hour, and she died soon after the paramedics arrived. Former employees testified that the door to the stairwell should have been locked, but that staff would often leave the door unlocked so they could use it for smoke breaks.

The nursing home reportedly had a history of citations by the state for various violations, as well as complaints for abuse. Former aides said that the nursing home was often understaffed. Testimony at trial also indicated that Nunziata, who began living at the nursing home in August 2003, had a history of illnesses, falls, and other injuries, and was beginning to experience symptoms of dementia. Staff was allegedly aware of Nunziata’s tendency to wander off and did not adequately monitor her. She reportedly had alarms on her wheelchair and clothing that should have alerted staff of her whereabouts.

Nunziata’s son filed suit on behalf of her estate in 2005. The nursing home was managed by Trans Health Management, Inc. The company no longer manages the home, and is now defunct. Its parent company, Trans Health, Inc., is currently subject to a Maryland receivership. This led to interesting questions of liability during the course of the lawsuit. An attorney representing the management company tried to delay the trial on behalf of the receivership, but the trial judge denied the motion.

Most Elder Deaths in Nursing Homes are Never Investigated

January 2, 2012 | Lebowitz & Mzhen

Deaths occurring among elderly nursing home residents often escape scrutiny. Doctors may classify possibly suspicious deaths as the result of “natural” causes, and as a result cases of abuse and neglect are not investigated. Reporters for ProPublica, in cooperation with PBS’ “Frontline” and other news organizations, conducted a review of coroner and medical examiner records from around the country to examine how often suspicious deaths in nursing homes get swept under the rug. While an accurate total is probably impossible to determine, they identified over three dozen cases in which authorities missed “alleged neglect, abuse, or even murder of seniors.” The resulting article names three systemic problems in elder care that contributes to the problem of under-reporting suspicious deaths: incorrect identification of causes of death, completion of death certificates by doctors who did not examine the body, and infrequent autopsies of elderly decedents.

The authors of the study describe the case of Joseph Shepter, a resident of a California nursing home who passed away in 2007. The chief medical officer stated that his death resulted from heart disease, and the coroner never investigated. Around the time of his death, a staffer at the nursing home reported to state officials that the home was using antipsychotic drugs to “chemically restrain” dementia patients. This led to a fine against the home and an investigation by the state attorney general, including a look at the circumstances of Shepter’s death.

The investigation found widespread abuse and neglect, particularly with regard to Shepter. He had apparently lost nearly twenty percent of his body weight in the three months prior to his death. His cause of death was revised from heart failure to a combination of conditions related to neglect, such as dehydration, sepsis, and pneumonia, all made worse by the use of antipsychotic medications. Two years after Shepter’s death, prosecutors brought criminal charges for homicide against the chief medical officer and two others. His case helps illustrate the three systemic problems identified in the report.

1. Incorrect Causes of Death. States tend to rely on treating physicians to determine whether or not a death is “suspicious” or “natural.” If a treating physicians certifies a death as resulting from natural causes, coroners will not conduct an investigation. The law does not generally consider the possibility that a doctor would incorrectly identify, or even deliberately misstate, the cause of death.

2. Death Certificates, Sight Unseen. Many states allow doctors to complete a death certificate without examining the decedent’s body. Obvious physical signs of abuse or neglect may go entirely unnoticed.

3. Autopsy Ageism. The study found that autopsies are performed on elderly people in ever-decreasing numbers. In one sense, this is rational. The death of an elderly person, while tragic, is neither uncommon nor entirely unexpected, as opposed to the death of a younger person. As a result, elder deaths are often attributed to existing health conditions without much review, leading to physical evidence being overlooked.