Maryland Nursing Home Lawyer Blog

Study Suggests Norovirus Poses Risk to Nursing Home Residents of Hospitalization or Death

October 26, 2012 | Lebowitz & Mzhen

A recent review of norovirus outbreaks in nursing homes found a correlation between outbreaks and higher rates of both hospitalizations and mortality among residents. While the correlation does not necessarily mean that the norovirus directly causes a greater number of hospitalizations or deaths, the data obtained by the study could prove useful in identifying risks faced by nursing home residents during outbreaks of communicable disease. This can in turn help nursing home administrators enact policies to protect and preserve their residents’ health and safety.

The norovirus is a highly contagious virus commonly associated with the stomach flu. It can affect anyone, regardless of age or general health condition, with symptoms ranging from stomach pain and nausea to acute gastroenteritis. People can contract an infection from other infected people, contact with contaminated surfaces, or ingestion of contaminated food or water. According to the Centers for Disease Control and Prevention (CDC), the norovirus sickens around 21 million people in the U.S. annually, and it is responsible for as many as seventy thousand hospitalizations and eight hundred fatalities per year.

The study, “Hospitalizations and Mortality Associated With Norovirus Outbreaks in Nursing Homes, 2009-2010,” was published in the October 24/31, 2012 online edition of the Journal of the American Medical Association. The researchers reviewed records from Medicare and the CDC for a period from January 2009 through December 2010 from three states: Oregon, Pennsylvania, and Wisconsin. Their review covered 308 nursing homes, with a combined total of 407 reported outbreaks of norovirus. The norovirus outbreaks lasted a median of thirteen days. Twenty-nine percent of the total number of reported hospitalizations and seven percent of the reported deaths occurred during reported outbreaks.

New Methods Available to Help Nursing Home Staff Track Life-Threatening Infections

October 17, 2012 | Lebowitz & Mzhen

Healthcare-associated infections (HAIs), generally defined as bacterial, viral, or fungal infections contracted by patients while receiving medical treatment, are a potentially major hazard for residents of nursing homes and other long-term care facilities (LTCFs). As many as 2.8 million LTCF patients may contract HAIs, some of them fatal, every year. A group of epidemiologists recently revised the definitions used in the surveillance of HAIs, providing new tools to document and track infections. The Centers for Disease Control and Prevention (CDC) has also issued new guidelines to help LTCF’s monitor HAIs. These new tools will hopefully help reduce the development and spread of infections among nursing home residents.

HAI Surveillance Definitions

In the October 2012 issue of the Society for Healthcare Epidemiology of America’s (SHEA) journal, Infection Control and Hospital Epidemiology, a panel of experts present a new set of definitions for use in monitoring LTCF infections. The existing set of definitions, known as the McGeer criteria, date back to 1991.

A group of experts led by Allison McGeer published a set of definitions in the February 1991 issue of the American Journal of Infection Control. The purpose of the McGeer criteria was to establish a uniform set of guidelines to monitor infections in nursing homes, such as standards for identifying newly-contracted or worsened acute infections that require monitoring.

According to the paper containing the revised definitions, the McGeer criteria work well in nursing homes providing non-acute care to older residents, but they do not necessarily address concerns faced in LCTFs providing acute care and care to younger patients. New types of nonhospital treatment facilities have appeared since 1991, so newer criteria for identifying and tracking HAIs is necessary.

Nurse’s Aide Gets Five Years in Prison for Stealing Nursing Home Residents’ Wedding Bands

October 11, 2012 | Lebowitz & Mzhen

A nurse’s aide at a Virginia veterans’ nursing home received a five-year prison sentence in September 2012 for a scheme that involved stealing residents’ wedding rings and selling them. She pleaded guilty to receiving and selling stolen property in July. She allegedly had a partner who actually stole the rings, then gave them to her to sell. The partner is still awaiting sentencing for grand larceny and selling stolen property. In addition to the prison sentencing, the court ordered both aides never to work in the nursing field again.

According to the Franklin News-Post, Ashley Michelle Sweeney and Brittney Heather Cook worked as contract nurse’s aides at the Virginia Veterans’ Center in Roanoke. Prosecutors described how the two aides worked together to carry out the theft scheme. Cook reportedly stole the wedding bands from nursing home residents. She would reportedly then give the rings to Sweeney, who allegedly sold them at two different pawn shops for a total of $360. The rings’ appraised value totaled about $4,600. In all, the two were charged with stealing and selling five rings. Their alleged victims were veterans of World War II and the Korean War, between 77 and 89 years of age.

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.

Maryland Federal District Court Allows Claim for False Imprisonment to Proceed Against Nursing Home and Hospital

September 18, 2012 | Lebowitz & Mzhen

A federal judge in the District of Maryland allowed one claim in a pro se lawsuit lawsuit against a hospital and a nursing home to proceed past summary judgment. The court in Estate of Bernice L. Jones v. NMS Health Care of Hyattsville, et al granted the defendants’ motion for summary judgment as to four of the plaintiff’s claims, but allowed the cause of action for false imprisonment to proceed.

According to the court’s opinion, Bernice Jones appointed her friend, David King, as her medical surrogate in the early 2000’s. They both lived in New York City at the time. Jones moved to Washington DC to live with her cousin in 2007, but kept in close contact with King and other New York friends. King continued to handle Jones’ financial affairs in New York.

Jones fell seriously ill in May 2008. She went to NMS’s St. Thomas More Nursing and Rehabilitation Center, located in Hyattsville, for short-term rehabilitation. Jones maintained daily contact with King and other friends and family. St. Thomas More reportedly began to arrange for Jones’ discharge in June 2008, but subsequent events remain disputed.

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.