Maryland Nursing Home Lawyer Blog

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.

Caring for Nursing Home Residents During Natural Disasters

November 8, 2011 | Lebowitz & Mzhen

Several major storms have hit the east coast of the U.S. this year, sending rains and floods to Maryland. September saw substantial flooding in parts of the state because of Hurricane Irene and Tropical Storm Lee, with rising flood waters washing away bridges and roads and threatening major population areas. Towns along the Susquehanna River in particular faced dangerous flooding. Residents of a nursing home in Havre de Grace, where the river meets Chesapeake Bay, had to evacuate in early September when floods threatened to engulf their facility. In all, 165 residents evacuated to other nearby facilities. This raises the question of how nursing homes can best ensure residents’ safety in such dire situations.

A nursing home in Chestertown, Maryland, located across the Susquehanna River from Havre de Grace, took in some of the evacuated residents, according to the Chestertown Spy. Administrators at the Chestertown facility learned of an SOS to all area facilities through Lifespan, a mid-Atlantic network of senior care providers. They took in sixteen evacuees, who remained at the facility for about three days, arriving on a Thursday night and returning to Havre de Grace Monday morning. Fortunately, the Susquehanna did not flood enough to threaten the nursing home, and residents were able to return without injury or serious incident.

Who has responsibility for the safety and well-being of residents during such emergency situations? Such determinations depend heavily on the individual circumstances. The basic facts on the ground may prevent well-meaning caregivers from providing adequate care, but a fundamental obligation to take reasonable steps to ensure safety remains. Even in a critical evacuation, caregivers must take all steps possible to provide necessary care. Residents needing a high level of care, including ongoing monitoring and medication, may face significant risks in emergencies, and nursing home staff must do whatever is reasonably within their power to provide for those needs. This usually involves transfer to another facility that can provide needed care. The facility taking custody of residents takes on responsibility for their well-being, but residents’ home facility still bears responsibility for seeing that they make it somewhere that can adequately care for them.

The situation in Maryland turned out well, but not all recent disasters have had positive outcomes. The most famous example, of course, is 2005’s Hurricane Katrina in Louisiana. Thirty-two residents of a nursing home in St. Bernard Parish died when flood waters hit their home after the hurricane made landfall. While many heroic stories of rescues and escapes came out of that area, residents of one home simply did not evacuate in time, with tragic results.

Maryland Home Health Care System Settles Medicaid Fraud Allegations

November 3, 2011 | Lebowitz & Mzhen

A home healthcare service provider based in Columbia, Maryland, Maxim Healthcare Services, Inc., has entered into settlement agreements with the federal government and several state governments to resolve allegations of fraudulent reimbursement claims. The federal case, which involved both civil and criminal complaints, accused the company of defrauding public programs like Medicaid and the Veterans’ Affairs program out of over $61 million since at least 2003. The complaints alleged a nationwide scheme that involved fraudulent billings to government programs, fraudulent documentation of billing records, and false statements to government officials.

Maxim provides home health care services across the country, which includes full-time homecare services to adult and elderly patients. The company discusses the importance of care planning and home safety on its website. It has a national reach, with hundreds of offices across most U.S. states. Maxim’s services potentially involve the same level of care and responsibility as in the nursing home environment, where the patient becomes fully reliant on the caregiver for support. While it does not provide inpatient care for the elderly, the case demonstrates how a facility can come to place other concerns above the best interests and well-being of its patients, a concern that is always present for nursing home residents.

The federal government’s case against Maxim alleged violations of the False Claims Act, a federal statute first passed in 1863 after widespread fraud by government contractors during the Civil War. Congress has amended the law several times, most recently in 2009 with passage of the Fraud Enforcement and Recovery Act, and in 2010 with the Patient Protection and Affordable Care Act. Generally speaking, the statute prohibits knowingly making false statements or presenting false records in order to receive a payment or benefit from the federal government. Some states also have similar false claims statutes protecting state-level public programs.

Allegations of Illegal Pharmaceutical Marketing Rarely Lead to Penalties for Doctors

October 25, 2011 | Lebowitz & Mzhen

A recent review by the Washington Post of lawsuits against pharmaceutical companies shows that drug manufacturers pay billions in settlements and criminal penalties for irregular and illegal marketing of prescription medications. Doctors who participate in the marketing schemes, usually by accepting kickbacks for prescribing particular drugs, however, rarely if ever receive any punishment. This presents a concern for nursing home residents and their advocates. While the big drug companies present deeper pockets and higher-profile targets for regulators, doctors work on the front lines, so to speak, and have the greatest ability to assess the need for particular drugs. Ultimately, the decisions of doctors have the capacity to do the most harm to patients in these situations.

This Maryland Nursing Home Lawyer Blog has reported earlier on a complaint by the U.S. Department of Justice against Johnson & Johnson regarding alleged kickback payments to a large pharmacy for sales of antipsychotic medications like Risperdal. The suit alleged that J&J’s actions violated warnings from the Food and Drug Administration regarding the accuracy of Risperdal’s marketing materials. Drug manufacturer Eli Lilly pleaded guilty in 2009 to illegally marketing the antipsychotic drug Zyprexa to elderly patients. Accusations of marketing fraud regarding prescription medications and outright kickbacks to pharmacies and doctors in exchange for promoting certain drugs have hit at least fifteen pharmaceutical and medical device companies in the past few years.

The liability for illegal marketing and payment of kickbacks can be substantial for these companies. Eli Lilly paid $1.4 billion for penalties in the Justice Department’s case and settlements in four separate lawsuits related to Zyprexa. Alpharma paid $42.5 million in settlements related to allegations of kickbacks for prescribing the painkiller Kadian. Overall, accusations of marketing fraud and kickbacks have cost the industry $6.5 billion since 2008
The review of these cases found no instances of doctors facing serious sanctions or even professional discipline. Since 2008, federal investigations into kickbacks and illegal marketing have identified 75 doctors who allegedly participated. None received any sort of monetary or other criminal penalty. Few state medical boards conducted investigations into the doctors’ conduct. Many of the doctors allegedly involved say they have been unfairly labeled as key players in these schemes, when in fact they also rely on the drug companies for information on potential uses of their products. Still, doctors should approach any off-label use (i.e. any use not explicitly approved by the FDA) with caution.

October is Long-term Care Residents’ Rights Month in Maryland and around the Country

October 19, 2011 | Lebowitz & Mzhen

October is Long-term Care Residents’ Rights Month, a time to celebrate the rights and dignity of people living in nursing homes. Thanks to strong legislation and regulations, nursing home residents have a legal guarantee of certain protections against abuse and neglect. Residents do not give up their rights as adult citizens solely by virtue of entering a nursing home environment. All nursing homes participating in Medicaid and Medicare must respect the rights covered by this law.

Congress passed the 1987 Nursing Home Reform Act after a study conducted by the Institute of Medicine found alarming rates of inadequate care, abuse, and neglect in nursing homes around the country. The Institute recommended a wide range of reforms that became law as part of a budget bill. The law aims to protect the physical, mental, and psychosocial wellness of nursing home residents by requiring nursing homes to provide certain services and creating a “Resident’s Bill of Rights.” Nursing homes must comply with the law in order to remain eligible to accept Medicare and Medicaid payments. Laws passed in 2010 expand on the rights protected by the 1987 law.

Nursing homes are required by this law to provide each resident with a personalized comprehensive care plan, along with periodic assessments of their care. They must provide nursing and social services, as well as rehabilitation and the ability to dispense prescription medications. Facilities with more than 120 beds should employ a full-time social worker to assist residents.

The Residents’ Bill of Rights lists numerous rights protected by federal law. These include:
– Freedom from abuse, neglect, or restraint;
– Privacy;
– Dignity;
– A clean and safe environment;
– Accommodation of particular medical and other needs;
– Communication and visitation with others;
– Participation in one’s care plan and frequent updates regarding one’s health condition;
– Complaint without fear of retribution;
– Control of one’s own finances, if possible; and

– Refusal of treatment when desired.

The Nursing Home Reform Act created an enforcement procedure that begins with routine inspections by state governments to review a nursing home’s certification. Surveyors may also investigate specific complaints or allegations, reviewing the amount of danger faced by residents and the likelihood that the alleged incident might occur again. One serious consequence of non-compliance with the law involves loss of Medicare and Medicaid eligibility. The law allows penalties ranging from remedial training for staffers to state management of the nursing home or outright termination of the home’s provider agreement with the state.