Maryland Nursing Home Lawyer Blog

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.

Former Nursing Home Staffer Sentenced in Sex Abuse Case

January 18, 2012 | Lebowitz & Mzhen

A former staffer at a nursing home in Barboursville, West Virginia was sentenced to one to three years in jail, including time served, after pleading guilty to the offense of attempting to commit a felony. Darren Canada, a 41 year-old Huntington resident, could be released within a few months because of time already served during the case. His jail sentence could be even shorter with credit for good behavior. The original indictment, issued in September 2010, charged Canada with second-degree sexual abuse and abuse or neglect of an incapacitated adult. He entered a guilty plea to the lesser offense in late 2011.

Canada worked at the Chateau Grove Senior Living Facility. In January 2010, another employee reportedly caught Canada attempting to sexually assault an 81 year-old female resident. According to the criminal complaint, Canada fled the facility by jumping out a window. Authorities say that he later confessed to the crime. His victim has since died.

The jail sentence imposed by the judge is the maximum allowed by West Virginia state law. The previous felony charges could have carried much more serious penalties. The prosecutor said that the sentence was “in the best interest of justice” based on the available evidence. The nursing home reportedly cooperated fully with law enforcement during the investigation of the case, earning the praise of the county sheriff. A relative of the victim spoke to the media about the sentence on her behalf.

Cases such as this present certain difficulties for law enforcement. Victims often cannot speak out for themselves due to physical frailty or mental difficulties. They may not remember important details or may not be able to communicate effectively. They may suffer further incapacitation or even die before a case can be adjudicated, making convictions much harder to obtain. Unfortunately this gives quite an advantage to perpetrators. The nursing home appears to have acted admirably in this case in cooperating with authorities.

Proposed Bill Would Require Notification of Nursing Home Residents on Sex Offender Registry

January 9, 2012 | Lebowitz & Mzhen

Governor Terry Branstad of Iowa has asked the Iowa Legislature to pass a bill requiring nursing homes to notify residents when a registered sex offender moves into the facility. Courts often order individuals into nursing home care after a plea or conviction, and some of those individuals must also go on the sex offender registry under the same order. Iowa officials estimate that fifty to fifty-five registered sex offenders currently reside in nursing homes in the state. Discussion of nursing home abuse and neglect often focuses on the action, or inaction, of nursing home staff, but residents may also face the risk of abuse from fellow residents.

The governor’s proposal arose from an incident last year at a nursing home in Pomeroy. An 83 year-old male convicted sex offender suffering from dementia who suffered from dementia assaulted a 95 year-old female resident. After the man was released from a facility designated for sex offenders, a judge had ordered him to be placed in the nursing home.

Shortly after the incident in Pomeroy, the governor convened a group to review laws relating to sex offenders in long-term care facilities. The proposed legislation is based on their recommendations. The governor announced the bill during his weekly radio address on January 9. In addition to notification of other residents or their representatives, nursing homes would have to create a written safety plan for use when a sex offender resides in the facility. He suggested that facilities might choose to designate an area to focus on sex offender residents, comparing the idea to wings designated for Alzheimer’s patients and other conditions.

The bill creates a delicate question about how to balance the right of nursing home residents to a safe living environment with the right of convicted sex offenders to also get an appropriate level of care. Nursing home residents are among the most vulnerable of people, and the notion that they might face abuse by a fellow resident with a possible history of abuse seems to shock the conscience. Once convicted sex offenders have served their punishments, however, they ostensibly have the same rights to nursing care as anyone else. Governor Branstad acknowledged the need to balance the interests of resident and public safety with the right to receive care, particularly when a person has been committed to care via a court order.

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.

Nursing Home Abuse Leads to Fines, Lawsuits in Michigan

December 27, 2011 | Lebowitz & Mzhen

Allegations of neglect and abuse in three different Michigan nursing homes have led to fines, firings, and lawsuits. Investigations uncovered horrific conditions in all three, including patient abuse, lack of proper hygiene and sanitation, and possible whistle-blower retaliation. The Michigan Protection and Advocacy Service (MPAS) reviewed nursing homes in sixteen counties and made recommendations to improve patient safety and quality of care. A different investigation by the federal Centers for Medicare and Medicaid Services (CMS) gave at least one nursing home its lowest possible ranking, jeopardizing its eligibility for federal funding.

The MPAS reported a case at the Whitehall Healthcare Center of Ann Arbor, located in Pittsfield Township, in which a woman’s catheter was found to contain maggots. The woman survived, but had to be rushed to the hospital for treatment. Three certified nursing aides formerly employed by Whitehall filed suit against Whitehall’s owner, LaVie Management Services of Tampa, Florida, claiming that they were fired in retaliation for reporting the abuse and neglect and neglect of several patients. One alleges retaliation after reporting a patient’s fall to state authorities, and the other two were allegedly fired for discussing the maggot incident with investigators. Their suit further alleges that the nursing home suspended several employees, including two of the plaintiffs, in order to prevent them from cooperating with the investigation of the maggot incident.

State authorities ultimately found that Whitehall failed to provide adequate supervision to two residents in wheelchairs, which resulted in injuries to both of them; failed to provide adequate catheter care to the resident described above; and failed to provide several other necessary services. The state now says that all the problems noted in their reported have been remedied. The former employees’ lawsuit is still pending.

In another case, this one at Cambridge South Nursing Home in Beverly Hills, outside of Detroit. A female resident was found to have maggots in her trachea. She was also hospitalized and survived. After an investigation by the MPAS, the Department of Labor and Regulatory Affairs fined the nursing home. The MPAS cited the two examples of maggot infestations to recommend a prohibition on hiring people with a verified history of complaints involving neglect or abuse, as well as a law requiring staff to report cases of abuse and neglect.

A CMS investigation of Borgess Gardens nursing home in Kalamazoo uncovered evidence of patient abuse, including a case in which nursing staff caused bruising and muscle and ligament injuries while trying to force a patient’s legs apart in order to catheterize the patient. The CMS inspection gave the nursing home a ranking of “4,” the lowest ranking on its scale of quality of care. It has added the nursing home to its Special Focus Facilities list, meaning it risks losing Medicare and Medicaid funding if it does not improve conditions.

Drug Tampering by Nurses Reveals Problems in Regulation and Hiring

December 21, 2011 | Lebowitz & Mzhen

A Kansas nurse accused of tampering with nursing home medications pleaded guilty to one count of adulteration of a drug and one count of consumer product tampering in a Topeka federal court at the end of November. Melanie Morrison admitted to diluting morphine solutions at the nursing home in Salina where she worked. The nursing director noticed that the caps had been removed from several vials of medication, and that the rubber covers had puncture marks indicative of a hypodermic needle. Morrison would mix sodium chloride into morphine sulfate, which reduced the painkiller’s effectiveness. She would also outright replace morphine vials with sodium chloride and take the morphine home. This put patients at risk, as some elderly patients can react very badly to sodium chloride solution. She admitted that she acted with “reckless disregard and extreme indifference” to the risks to the patients in her care.

Morrison’s plea deal could result in a prison sentence of up to three years. She has also surrendered her nursing license and agreed never to work in health care again. Prosecutors are asking that she go into a treatment program for drug addiction. If she completes the program, she could qualify for early release from prison.

The Kansas City Star notes that Morrison’s case illustrates an alarming problem with Kansas’ nursing regulations. According to news reports, Morrison had previously lost a job at a Wichita hospital for stealing the painkiller Percocet. Within months, she had a new job at a nursing facility with full access to the drug supply. The Star notes other similar cases. A nurse convicted of stealing patients’ drugs at an Emporia nursing home later found a job at a home in Topeka. There, she was caught diluting a patient’s painkiller with tap water. A nurse who diluted morphine solutions for several patients in Halstead had a previous conviction for prescription forgery.

The problem, according to the Star, is that Kansas law does not require nursing homes to conduct background checks on nurses and other medical professionals. The state nursing board obtained authority to conduct background checks on new nursing licensees, but not renewals, a mere three years ago. Nursing homes and hospitals therefore have no effective means if learning of any criminal or drug abuse history of their nurses. With regard to employees who regularly handle powerful narcotic medications, with patients in delicate medical condition, this would be useful information for nursing home administrators to have.

Nursing Home Aide Pleads Guilty to Seven Counts of Abuse After Hidden Camera Catches Her

December 14, 2011 | Lebowitz & Mzhen

A former nursing home aide in Ohio has pleaded guilty to seven criminal charges related to evidence that she abused a patient in her care. Another aide is scheduled to go to trial in January on one count of abusing the same patient. Evidence of abuse was captured on hidden cameras placed by the resident’s son in her room. At least four employees of the nursing home lost their jobs as a result of alleged abuse of this particular resident.

According to reporting by the Cleveland Plain Dealer, Steve Piskor moved his mother, Esther Piskor, into a nursing home operated by MetroHealth Medical Center in March 2009. He quickly became concerned about her condition and the quality of care the nursing home was providing to her. He made daily visits to her and reported finding her sitting in her wheelchair in soiled clothing and with unusual markings on her face. He made four complaints to the nursing home over the next two years, all of which he says met with little to no response.

Piskor placed a camera in his mother’s room in plain view, but workers reportedly placed a towel over it when they entered the room. In April 2011, Piskor took it upon himself to install a hidden camera in her room, with a posted notice indicating the camera’s presence, but not its location. Within two days, he says he had evidence of abuse.

He notified the nursing home administration, as well as Cleveland police. Police brought charges against several employees shown in the videos, and the Ohio attorney general’s office has gotten involved as well. Piskor’s attorney expressed concern at the apparent lack of concern among many administrators upon seeing the videos. MetroHealth has stated that one aide, the one who just pleaded guilty to seven criminal offense, was suspended less than thirty minutes after administrators reviewed the videos. The company declined to comment to the media, but issued a statement apologizing for the treatment of Esther Piskor and noting that several employees had been terminated.

Among the instances of abuse caught on camera are rough handling of Esther Piskor, aides shoving her into a chair, and pushing a hand into her face. Another aide is shown spraying something in her face. Piskor moved his mother to a different nursing home in September 2011.

Two Nursing Home Workers Lose Licenses After Alleged Beating of Resident

December 7, 2011 | Lebowitz & Mzhen

Two workers at a Staten Island nursing home lost their licenses as a result of the beating of a developmentally disabled resident. They also pleaded guilty to violating state health laws, and neither will work in health care again. The home itself was reportedly not cited with any violations. The state attorney general’s office reports that an aide allegedly struck a patient on the head several times, and a supervisor then allegedly tried to cover it up. The incident underscores the importance of vigilance among loved ones of nursing home residents.

According to a report in the Staten Island Advance, an EMT reported to a nurse supervisor that he witnessed an nurse aide hitting a patient on the head several times, and saw the patient react defensively. The patient was a developmentally disabled 40 year-old suffering from depression and schizophrenia. The nurse supervisor told the EMT not to report what he saw because, according to authorities, she did not want the aide to get into trouble. The nurse supervisor also reportedly did not examine the patient or file an incident report, although the law requires her to do so.

The state attorney general’s Medicaid Fraud Control Unit investigated the incident and charged the nurse aide with endangering the welfare of an incompetent or physically disabled person and with willfully violating state health laws. The aide pleaded guilty to the charge of willful violation of health laws, receiving a sentence of a conditional discharge. She had to give up her nurse aide certificate and may not work in health care as a further condition.

The nurse supervisor was charged with falsification of business records and with willfully violating state health laws. She also pleaded guilty to the willful violation charge and got a conditional discharge. She lost her practical nurse license and must refrain from working in health care. News reports indicated she had received two suspensions previously, once in 2004 for failing to report a patient’s fall or treat the patient’s injury, and in 2006 for administering an incorrect dosage of painkiller and attempting to hide the mistake.

Nursing Home Fire Injures Two Residents

November 22, 2011 | Lebowitz & Mzhen

A fire at a nursing home in Charlotte, North Carolina injured two residents in February 2011. One of the victims was reportedly burned trying to help the other resident put the flames out. The names of the two victims have not been released. Both survived their injuries, although initial reports suggested one victim had sustained life-threatening injuries. The fire forced 170 residents to evacuate the 180-bed facility. The building itself was undamaged.

Residents were moved to nearby hospitals and other nursing homes while the North Carolina Department of Health and Environmental Control investigated and oversaw the cleanup. A staff member of the nursing home told local news at first that a cigarette started the fire, although smoking is banned at the facility. Fire officials eventually concluded that high heat and a flammable substance caused the fire. Towels washed in an alcohol-based fabric softener were placed in commercial dryers that use higher temperatures than smaller dryers used in single-family homes. The smoldering towels were placed in a linen closet, where they ignited and started the fire.

The state’s Department of Health and Human Services also investigated the incident, which is standard procedure whenever a resident sustains an injury requiring anything beyond first aid. An inspection of the nursing home in 2010 by federal regulators gave it an “average” ranking.

According to the Centers for Disease Control and Prevention (CDC), in 2010 fire departments in the United States responded to 384,000 fires in homes, with 2,640 deaths and 13,350 injuries. These figures do not include firefighters injured or killed in the line of duty. This averages to one fire-related death every 169 minutes in 2010, and an injury once every thirty minutes. Eighty-five percent of 2010 U.S. fire deaths occurred in homes. Inhalation of smoke or poisonous gases is the leading cause of death in fires, as opposed to burn injuries. Most residential fires resulted from cooking, while most fire-related fatalities resulted from smoking.

Maryland Nursing Homes Demand Higher Priority for Power Restoration During Outages

November 15, 2011 | Lebowitz & Mzhen

Power outages across the east coast in the wake of Hurricane Irene left many Maryland nursing homes without electricity for five to eight days in late August. In all, about 800,000 people experienced power loss due to the hurricane, which caused billions of dollars of property damage and cost at least one life. We have previously commented on the risks posed to nursing home residents in Maryland from flooding and other natural disasters. The extent and length of recent power outages create perhaps an even greater risk to resident safety, considering the dependence of so many on medical devices and monitoring equipment. An overhaul of power restoration procedures, as well as an examination of nursing homes’ plans for dealing with power outages, are crucial to protecting the safety of nursing home residents.

Maryland citizens, nursing home advocates, and nursing home administrators are all calling on the state to review the system of power restoration after natural disasters. Power outages forced closures of businesses and schools across the state, and made it difficult for people to both evacuate and return home. The Maryland Public Service Commission (PSC), the state agency tasked with regulating utility companies, has opened an investigation into the performance of Baltimore Gas and Electric (BGE) during and after the storm. BGE created a stir when it announced that the $81 million it spent restoring power may lead to higher rates on services in the future. The PSC must approve any rate increase.

BGE and other utilities use a priority system to manage power restoration, focusing first on public safety, including hospitals, and critical infrastructure such as pumping stations. Nursing home representatives and others are asking that nursing homes receive the same priority as hospitals, since they serve very similar functions for their residents. A nursing home administrator testified to the PSC that “today’s nursing homes closely resemble hospitals in caring for medically complex patients, using the same type of equipment, like ventilators, G-tubes, breathing machines and dialysis machines.” In an order issued on October 31, the PSC has asked BGE and other utility companies to draft new implementation plans based on the experience of Irene, to collaborate in finding a way to reliably inform customers of when to expect power restoration, and to notify the PSC of the protocols used to determine priority for power restoration. The PSC hopes to create consolidated procedures for future hurricanes and other disasters.