Maryland Nursing Home Lawyer Blog

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.

Nursing Home Locked Down by Police After Receiving Threat Letter

August 13, 2012 | Lebowitz & Mzhen

Police in New Milford, New Jersey put a local nursing home on “lockdown” after the facility received a letter containing threats and references to the recent shootings at a movie theater in Aurora, Colorado. As a precautionary measure for the safety of the nursing home’s residents, police kept residents in their rooms while searching for potential safety threats. No threats were found, and no suspects have been identified. All the residents are safe, and both police and nursing home staff say that they had access to care throughout the crisis.

A letter arrived at the Woodcrest Health Care Center the morning of Wednesday, July 25, 2012. This was less than a week after the shooting incident in Colorado, in which a masked gunman wearing full body armor shot dozens of people during a midnight screening of the new Batman movie. The gunman killed twelve people, injured more than sixty, and terrified the whole nation. The letter received by Woodcrest reportedly included handwritten references to the Aurora shootings and other threats, as well as pasted newspaper headlines. The letter made threats referencing explosives, knives, and guns. Nursing home staffers contacted the police, who arrived at about 11:40 a.m. Although the letter was apparently signed, police have not said by whom.

Police “locked down” the facility, instructing residents to remain in their rooms. They kept the residents there for about two hours. Bomb squad investigators, assisted by canine units, swept the facility and found no trace of explosives. The police chief reportedly requested the assistance of the county prosecutor’s Counter-Terrorism Unit, although it is not clear if they arrived on the scene before the scene was cleared at around 2:00 p.m.

Medical Study of Hip Injuries Placed Over 1,300 Nursing Home Residents at Risk, Government Says

August 7, 2012 | Lebowitz & Mzhen

A study involving researchers affiliated with Harvard and other academic institutions, intended to look into prevention of hip fractures, actually may have exposed over 1,300 participants to increased risk of hip injury. The Office of Human Research Protections (OHRP), part of the U.S. Department of Health and Human Services, ordered investigators to send notifications to the participants, who are elderly nursing home residents, detailing the risks to which they were exposed during the 2002-06 study. This concludes a year-long investigation by OHRP.

The Hip Impact Protection Project (HIP PRO) investigated the effectiveness of padded undergarments known as “hip protectors” in preventing injury to elderly nursing home residents. The study involved thirty-seven nursing homes, testing the efficacy of a type of undergarment that contained a hip pad on either the right or left hip. The researchers found that the single-side protective garments “may have caused unanticipated changes in behavior” among participants. The researchers concluded that hip protectors offered no significant protection against hip fractures. The study was published in the August 2008 issue of Clinical Trials, and it was also included in a 2007 issue of the Journal of the American Medical Association.

Contractor Kickbacks Result in Prison Sentence for Former Nursing Home Executive

July 27, 2012 | Lebowitz & Mzhen

A former executive with a nursing home company based in Roanoke, Virginina has been sentenced to just over five years in prison after pleading guilty to multiple counts involving mail fraud and tax evasion. He was accused of receiving more than half a million dollars in kickbacks from contractors, awarding contracts based on payments rather than on bids, and falsifying tax returns in order to conceal such income. Four contractors have also faced prosecution for payment of kickbacks. The case is important to advocates for victims of nursing home abuse and negligence because of the importance of maintaining adequate facilities for the care of nursing home residents. Kickbacks and other forms of corruption compromise the ability of nursing home administrators to effectively care for their patients.

Roanoke-based Medical Facilities of America (MFA) operates over forty nursing homes located around North Carolina and Virginia. John D. Henderson worked for MFA as its director of maintenance and renovations. According to prosecutors, he demanded and received $541,821 in kickbacks from three or more companies between 1998 and 2006. Those companies then received more than $5 million in contracts from MFA for construction work at its facilities. Henderson allegedly created false records of higher bids from competitors to create the appearance of a competitive bidding process. He was also accused of filing fraudulent tax returns to conceal over $400,000 in income. MFA fired Henderson in 2006 after learning about the kickback scheme.

Federal Grant Program Helps Maryland Improve Care Options for Seniors

July 19, 2012 | Lebowitz & Mzhen

The Patient Protection and Affordable Care Act (ACA), enacted by Congress in 2010 and known colloquially as “Obamacare,” has caused an historic amount of controversy over the past two years. It recently survived a Supreme Court challenge, and some of its provisions have begun to take effect. While Americans may disagree vehemently about all or parts of the law, some provisions have begun to benefit Maryland seniors in significant ways. A grant from the federal government, part of the Balancing Incentive Program (BIP), should allow the Medicaid program to cover more patients and provide seniors with more care options. Seniors who may not require full-time care in a nursing home may now be able to obtain home- or community-based care. This could free up space and resources in overburdened and understaffed full-time care facilities.

President Obama signed the ACA into law on March 23, 2010. The hefty bill mainly addresses the rights and duties of health insurance providers and patients. The most controversial provision, the “individual mandate” to purchase health insurance if it is not available through employment or public assistance, survived review by the Supreme Court in a June 28 ruling. The law includes provisions, most of which have not yet taken effect, preventing insurance companies from denying coverage for a “pre-existing condition,” restricting when and how an insurer may cancel coverage, and much more.