Maryland Nursing Home Lawyer Blog

Estate Sues, Claims Nursing Home’s Negligence Led to Wrongful Death

March 27, 2013 | Lebowitz & Mzhen

A former nursing home resident’s estate has filed suit against the facility the man was living in when he died, accusing the facility of negligence which caused the man to suffer several falls while in its care, which ultimately led to his death.

The suit was filed on behalf of the estate of a former resident who died in September of last year at an Edwardsville, Illinois care facility. The suit alleges that the man was a resident in the facility from July 7, 2012 until the time of his death, which was the result of a subdural hematoma.

The suit specifically alleges that, “The cause of death was a subdural hematoma; said medical condition was a direct result of multiple falls by the decedent, at the Eden Village facility.” According to the complaint, the man suffered falls on at least four separate occasions from the end of July through August. In addition to the falls leading to his death, the estate alleges that the falls caused the plaintiff extensive pain and suffering, and were the ultimate cause of his death.

As a resident, the man required daily living assistance and rehabilitation. Subject to these requirements, the suit claims that the facility failed to care the decedent in a way which encouraged the maintenance and of his quality of life and dignity.
In addition to the wrongful death claims, the suit also alleges various other claims based on negligence. The estate is seeking at least $50,000 in damages for two of its claims.

Former Nursing Home Employee Charged with Stealing from 100 Year Old Patient

March 20, 2013 | Lebowitz & Mzhen

This week a former Wyoming nursing home employee pleaded no contest to obtaining goods by false pretenses. Malgorzata Burns, who was formerly a certified nursing assistant, has been accused of stealing thousands of dollars from an elderly resident with dementia who was under her care.

During his statement the District Attorney explained how Burns allegedly used the 100 year old victim’s money to pay various credit card and other bills. He said she also forged four checks, totaling $7,200. He explained that the victim was a patient living at the care center where Burns worked. According to the statement, the man suffers from “aggressive and ongoing dementia.”

Subject to the plea deal, Burns could serve up to ten years in prison. Prosecutors are also seeking to have the woman repay $13,000. Furthermore, as part of the agreement, prosecutors will dismiss charges of forgery and exploiting a vulnerable adult. Further complicating the situation for Burns, is the fact that she is a legal resident from Poland, meaning that a felony conviction could affect her ability to remain in the country.

The misdeeds were initially discovered by an employee of a non-profit guardian organization, who noticed suspicious activity in the man’s bank accounts. Such discrepancies included several online payments to a cable and internet provider, and for credit cards that did not belong to the man. The District Attorney further stated that the man does not even know how to use the Internet.

According to a document from the Wyoming State Board of Nursing, Burns had worked at the facility since December 2009, but resigned last June after the allegations arose. Her nursing assistant certification was suspended by the Board shortly thereafter in August.

Maryland Attorney General Announces $48 Million Settlement over Unapproved Bed Sore Ointment

March 13, 2013 | Lebowitz & Mzhen

The Maryland Attorney General announced last month Maryland has reached an agreement with

with Healthpoint and DFB Pharmaceuticals, its partner. The settlement, to which fifteen additional states and the federal government are also plaintiffs, is a result of allegations that Healthpoint was responsible for causing false claims to be submitted to the Maryland Medicaid programs for one of its products called Xenaderm. Xenaderm is a skin ointment that was prescribed to many nursing home, and potentially other, patients for the treatment of bed sores. However, the drug has not received the required approval from the Food and Drug Administration (FDA).

The various complaints related to the settlement alleged that Healthpoint unlawfully marketed Xenaderm without FDA approval. The allegations further claimed that this marketing was modeled upon a drug created some time before 1962, which itself had received review from the FDA. The FDA ruled in the1970s that the principal ingredient in Xenaderm was “less than effective” for treating bed sores, its intended use. The defendant(s) allegedly misrepresented the drug’s regulatory status repeatedly in reports that it submitted to both federal and state agencies.

Subject to terms of the $48 million settlement, which is to be awarded to 47 states and the federal government, defendants Healthpoint and DFB Pharmaceuticals will have to pay roughly $33 million to settle Medicaid-based claims nationally. Maryland itself will receive nearly $350,000 in refunds to the state’s Medicaid program, which accounts for the improper payments on behalf of both the state and federal governments.

Family Files Wrongful Death Suit Against Nursing Home

March 6, 2013 | Lebowitz & Mzhen

The family of an Indiana woman, who is believed to have died due to the injuries she suffered as a result of an altercation related to her Alzheimer’s and dementia, has filed a wrongful death lawsuit against the nursing home where she was living when she died. The suit accuses the nursing home of being negligent, and thus at least partly responsible for the woman’s death.

According to the local coroner’s office, the woman’s cause of death was a failure to thrive due to subdural and subarachnoid hematomas, which were the result of blunt force trauma that she suffered after a fall during an altercation with another resident.

The report from the Department of Health and Human Services Centers for Medicare & Medicaid, which was linked to in the story written by a local newspaper, concluded that among other things:

“Based on observation, interviews and record review, the facility failed to provide supervision to prevent falls and prevent a resident altercation which resulted in a fall, injury, hospitalization and death.” (page 8/28)

From the report, it also appears that this was not the woman’s first altercation.

The woman was a resident of the Alzheimer’s unit in the nursing facility, and she additionally suffered from dementia. The woman’s relatives claim that their motivation for filing suit was at least partly attributable to feeling as though the nursing care facility expressed no remorse or compassion following the incident.

Planning Ahead: Medicare Does Not Cover Nursing Home Long Term Care

February 26, 2013 | Lebowitz & Mzhen

When we talk about nursing homes, we must differentiate between whether we are referring to a short term stay related to medical care, such as in a rehabilitation care facility, or rather we are discussing a residential stay. The latter, which involves living in a nursing home or assisted living facility, is properly referred to as “long term care.”

Many people mistakenly believe that Medicare will pay for this long term care because Medicare willpay for skilled rehabilitation care within a Skilled Nursing Facility (SNF). However, there are strict requirements for when Medicare benefits will cover skilled care within a SNF. If you meet certain eligibility and Medicare plan requirements, then you may be able to have up to 100 days of care (per benefit period) in a SNF covered by your Medicare Plan. You will want to check with your plan, as a co-payment may be required after a certain number of days.

Medicare will cover skilled care only if all of the following are true:

You have the Medicare Part A (hospital insurance);
You have days left within your current benefit period available to use;
You have a qualifying hospital stay– more than 3 days excluding discharge (and with other limitations), and you enter the SNF within 30 days of discharge;
Your doctor orders the services of a SNF, which require the skills of trained professionals, such as occupational therapists, registered nurses, speech therapists, etc.;
You require the skilled care on a daily basis, and those specialized services are such that they can only be conducted on an inpatient basis;
You need the skilled services for a medical condition that was either (1) treated during your qualifying 3 day hospital stay; or (2) began while you were already staying in a SNF for a medical condition arising out of the hospital stay. (For example, the original stay in the SNF was for surgery, but you suffered a stroke while in the SNF);
The skilled services must be both reasonable and necessary, in terms of the diagnosis or treatment for your condition; and
You can get these skilled services in an SNF that is certified by Medicare.

It is important to keep in mind, however, that once a patient is eligible for SNF coverage, it does not mean that coverage will continue. If a patient refuses his or her daily skilled treatment or care, they may lose their Medicare SNF coverage.

Federal Law Protects Nursing Home Residents from Bed Sores

February 19, 2013 | Lebowitz & Mzhen

Pressure sores or ulcers, which are commonly referred to as bed sores, are probably among themost common sort of potential new injury incurred by nursing home patients who are incapable of moving about freely. While they can be annoying or painful, they can also become infected and lead to a vast array of additional complications for nursing home residents. Perhaps most importantly, they can be prevented.

It’s for this reason that federal law makers have passed regulations for nursing home facilities which address this problematic complication.

42 CFR § 483.20 entitled “Resident Assessment” requires a comprehensive assessment of the resident. While this blog post focuses on the skin care assessment and bed sore prevention, the facility is required to assess 17 other factors, all related to the patient’s condition upon entering the facility. The facility has 14 days from the person’s arrival to complete this assessment, and it then has 7 days from the completion of the assessment to develop a care plan addressing the patient’s various needs.

42 CFR § 483.25 Quality of Care, explicitly addresses what must be done in regards to bed sores specifically. It states that based upon the comprehensive assessment, the facility must ensure that:

A resident who enters the facility without bed sores does not develop them (unless the person’s individual medical condition makes them unavoidable); and
A resident who does have bed sores must receive proper treatment and/or services to promote the healing process, prevent infections from developing, and prevent new sores from happening.

Nursing Home Closes Amid Allegations of Abuse, Neglect, and Other Deficiencies

February 12, 2013 | Lebowitz & Mzhen

A Toledo, Ohio nursing home closed in January 2013 after losing its Medicare and Medicaid provider status, receiving notice of federal fines approaching $140,000, and facing loss of its state license. Ongoing concerns regarding the quality of care led to multiple investigations by state and federal officials. The alleged, unreported assault of a resident in mid-2012 led to a push by state officials to shut the facility down.

Two state agencies opened investigations of Liberty Nursing Center of Toledo after the alleged sexual assault of a resident. The facility provides elder care and treats patients with severe mental illness. According to the Toledo Blade, nurses found a male patient on top of a female patient in her room on July 26, 2012, in what appeared to be an act of assault. The male patient had a diagnosis of schizoaffective disorder and a history of sexual aggression. The facility allegedly transferred the male patient to a hospital after notifying his psychiatrist. After determining that the male patient did not make sexual contact with the female patient, however, an administrator allegedly instructed staff to “clean up” the patient. She did not receive any examination after the alleged assault, and no further action was taken, including notification of law enforcement, health officials, or the woman’s guardian.

The Ohio Department of Health (ODOH) notified Liberty on August 9 that it intended to revoke the facility’s license, which would force it to close. It cited the July incident, along with other allegations of abuse, neglect, and deficiencies in quality of care. Several residents have left the facility without permission or supervision in recent years, according to ODOH.

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.

Guardian for Nursing Home Sexual Abuse Victim Files Suit Against Facility and Former Staffer

January 29, 2013 | Lebowitz & Mzhen

The guardian of an Oregon woman, now deceased, who was the victim of sexual assault in a nursing home has filed suit against the nursing home and its incarcerated former employee. The lawsuit claims elder abuse based on the sexual assault, a civil claim allowed under Oregon law, and seeks $1.5 million in damages.

The victim, whose name has not been disclosed by the news media, was a resident of Valley West Health Care Center in Eugene, Oregon. She had suffered several strokes and was unable to speak. She had resided at Valley West for about one year when, on December 22, 2010, an employee reportedly walked into the 56 year-old woman’s room and saw another employee, 61 year-old Robert Price, touching the woman’s genital area. The employee reported the matter to Valley West management, who reportedly contacted police.

Prosecutors charged Price with first-degree sexual abuse and first-degree attempted sexual abuse, both felonies. They contended that the victim was unable to consent due to mental defect, mental incapacitation, and physical helplessness. Price pleaded not guilty to sexual abuse, but later entered a guilty plea on the attempted sexual abuse charge, which carries a lesser mandatory prison sentence. State law defines “attempted” sexual abuse as an act that involves a “substantial step towards completing” actual sexual abuse. Price was sentenced to forty-five months in prison on February 4, 2011, and he remains incarcerated to this day.

Nursing Home Employee Charged with Abuse of Patient

January 25, 2013 | Lebowitz & Mzhen

A certified nursing assistant at a Wisconsin nursing home faces criminal charges for the alleged abuse of a patient over a six-month period. At least two other employees reported seeing her physically assaulting the nursing home resident on multiple occasions. The felony charges could result in a substantial prison sentence.

Two certified nursing assistants at Crest View Nursing Home in New Lisbon, Wisconsin reported witnessing the abuse of an 86 year-old resident by another certified nursing assistant, Ginger Newlin. One of the witnesses reported seeing Newlin, among other acts of assault, verbally abuse the elderly woman and spit in her face. The other witness reported incidents of abuse that occurred at least once a week, beginning in October or November 2011. In addition to physical abuse, she reported hearing Newlin threaten the woman, such as threats to break the woman’s fingers.

Prosecutors charged Newlin with at least two felony counts in June 2012. She faces a charge of abuse of a patient, a broadly-defined offense that could include physical, emotional, or sexual abuse, unconsented treatment, or unreasonable restraint. “Patient” expressly includes nursing home residents and other elder or vulnerable adults. Penalties vary depending on whether the alleged abuse was intentional, reckless, or negligent, and on the degree of harm or risk of harm that resulted from the alleged abuse. The most severe offenses, described as intentional or reckless abuse resulting in death, are treated as Class C felonies. This can result in up to forty years in prison and fines of up to $100,000. Reckless or negligent abuse that is likely to, but does not, cause “great bodily harm” is a Class I felony, punishable by a maximum of three-and-a-half years’ imprisonment and a $10,000 fine.