Articles Posted in Assisted Living Facilities

The Arizona Supreme Court has reversed a summary judgment dismissing a nursing home abuse case.

Marika Delgado was the personal representative of the estate of her sister, Sandra Shaw. Delgado appealed the trial court’s entry of summary judgment in favor of the defendants who were collectively Manor Care of Tucson.  On appeal, Delgado argued that the court erred in finding that the actions that allegedly caused Shaw’s death were not related to her incapacity as required by Arizona law.

Because the Arizona Supreme Court could not say as a matter of law that the alleged negligence that was a cause of Shaw’s death was unrelated to her incapacity, the state Supreme Court reversed the judgment of the trial judge and sent the case back for further proceedings.

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Meadowbrook Manor Nursing Home invoked the Quality Assurance Act in a case i which Jannie Lindsey, as plenary guardian for 88-year-old Laura Lindsey, alleged that Lindsey was injured by a fall while she was a resident at Meadowbrook’s Naperville Nursing Home.

The Illinois Appellate Court was presented with a case of first impression under the Quality Assurance Act (Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act; 745 ILCS 55/1 et seq.)

In this case, Meadowbrook Manor used a contempt sanction to question the validity of a discovery order that commanded it to handle (1) an internal report it prepared after Lindsey fell and (2) written statements from six witnesses.

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In an Illinois Senate bill sponsored by Sen. Tom Cullerton, D-Villa Park, the law would create a “resident’s representative” for Illinois nursing home residents.  The law would amend the Nursing Home Care Act, changing Section 1-123 (210 ILCS 45/1).

This law — should it be enacted — would allow a nursing home resident to choose someone to support the resident in decision-making, access medical, social, or other personal information of the resident, manage financial matters or receive notifications.

The law would also include the following:  (1) an individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access medical, social or other personal information of the resident; manage financial matters; or receive notifications; (2) a person authorized by state or federal law, including, but not limited to, agents under power of attorney, representative payees, and other fiduciaries, to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications.  (3) a legal representative, as used in Section 712 of the federal Older Americans Act (42 U.S.C. 3058g); or (4) the court-appointed guardian or conservator of a resident. Nothing in this definition is intended to expand the scope of authority of any resident’s representative beyond that authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

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Arbitration clauses commanding arbitration in nursing home abuse and neglect cases have been the bane of many lawyers seeking to protect nursing home residents from abuse and injury. Under the Illinois Nursing Home Care Act, arbitration clauses were considered to undermine the purpose of the act by making it mandatory for residents and their families to abide by a confusing nursing home contract on admission to a nursing home.

The Illinois Nursing Home Care Act was intended to protect residents from exploitation by nursing homes and their parent corporations. It would seem to be against Illinois public policy for residents admitted to Illinois nursing homes to be compelled to sign a contract. In some cases, these contracts contained arbitration clauses that would essentially remove a common law lawsuit as an option should the resident be injured by neglect or abuse by a nursing home and its personnel.

The Centers for Medicare and Medicaid Services (CMS) implemented a new rule that prohibited federal funds for nursing homes that enter into binding arbitration agreements with residents. However, in a U.S. District Court in the Northern District of Mississippi, an order was entered that found that the CMS did not have authority to enact the mandate without statutory authority.

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A state appellate court had held that a nursing home’s alleged failure to prevent a nursing home resident’s injuries by raising bedrails was a triable issue of fact. The case centered on whether this choice — made by the nursing home  — was a departure from the standard of care.

Rosalia Petralia, 88, suffered from dementia. She lived at the Glengariff Health Care Center. She was a fall risk and formal fall precautions were noted in her chart. She fell out of bed and suffered serious injuries.  Later, she  sued the nursing home, and her son was substituted as the plaintiff when his mother passed away.

The lawsuit maintained that Glengariff Health Care Center was negligent and also alleged medical malpractice for the nursing home’s choosing not to have Petralia’s bedrails raised before her fall. The nursing home moved for summary judgment. The trial court granted the motion, holding that the nursing home had shown it had not departed from the acceptable nursing and professional practice standard.

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Doris Green was 79 years old when she was discharged to HealthSouth Rehabilitation Hospital of Gadsden for a two-week stay following her hospitalization for gastroenteritis. About a week after her admission, a nurse discovered that she was in an unresponsive mental state; the physician ordered that she be transferred to a nearby hospital.

At the hospital, she underwent a CT scan of her brain and it was negative. She was then rehydrated and returned to HealthSouth.

Three days later, Green became unresponsive again with an oxygen saturation level of just 70%.  She was returned to the hospital in a coma. Doctors believe she had been given opiates. The doctors ordered two urinalyses, which were positive for opiates.  The hospital staff administered Narcan and Green responded favorably over the next few days. Although her condition stabilized, she did suffer brain damage resulting from lack of oxygen or hypoxia to the brain. She died several months later.  She was survived by her adult daughter.

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The Illinois Department of Healthcare and Family Services has adopted an amendment to the Medical Assistance Programs reducing personal need allowances for residents of assisted living facilities. The amendment to 89 Ill. Adm. Code 120 (eff. Aug. 2, 2016), Section 120.61 is entitled “Long Term Care,” which has application to the residents of long term care facilities or state-certified, licensed or contracted residential programs.

A condition of residency at one of these long term facilities is that residents must pay all of their income to the facility unless there is an exception listed in the regulations. One of the allowed deductions is an individual’s personal needs allowance. This is a part of a resident’s income that is reserved solely for the resident to use in any way he or she wishes. The rest of the person’s income is applied to the costs for the resident’s care at the facility. The state or government will pay the rest of the full costs of the residency.

This amendment returns the allowance amount from $60 per month to $50 per month for residents of Community Integrated Living Arrangements and $30 per month for residents of Intermediate Care Facilities for Individuals with Developmental Disabilities. These changes reduce the allowances back to the 2014 level.

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Contaminated syringes have been associated with the outbreak of bacteria that infected nearly 150 people since August 2016. Fifty-two of those cases were in New Jersey. According to the Centers for Disease Control (CDC), “the majority of these cases occurred in patients residing at long-term care or rehabilitation facilities who were receiving intravenous (IV) fluids and/or antibiotics through central venous catheters.”

The outbreak of the bacteria from the IV syringes may be linked to six deaths in New York and Pennsylvania. Of the 58 total nursing home facilities that had been affected, the most were located in New York, New Jersey and Pennsylvania. There were several reports of similar outbreaks in Delaware and Maryland.

The bacteria is usually referred to B. cepacia. In most cases, the infections were caused by a pre-filled saline flush syringe, which the manufacturer voluntarily recalled on Oct. 4, 2016. The CDC announced on Nov. 9, 2016 that all nursing homes and other medical facilities should stop using the items, sequester any items in the facility and report all infections to local and state health authorities.

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An appeal was taken from an order entered on June 18, 2015 that denied the motion of the defendants, Manor Care of Carlisle PA, LLC, etc., for reconsideration after the circuit court judge denied their motion to compel arbitration in this nursing home abuse case. It is well-settled that “denial of reconsideration is not subject to appellate review.”

On Dec. 13, 2012, Mary J. Churlick, in her capacity as executrix of the estate of Mary J. Yohn (hereinafter the “decedent”) filed a lawsuit against the defendant nursing home and its parent company. The complaint contained claims in negligence and negligence per se as well as claims under the survival statute and wrongful death statute.

On Sept. 6, 2013, the trial judge overruled the defendants’ preliminary objection and the nature of the motion to compel arbitration. That order was an appealable order.

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According to a recent report in the New York Times, an agency within the federal Health and Human Services Department issued a rule that bars any nursing home that receives federal funding from requiring that its residents resolve disputes in arbitration as an alternative to a lawsuit in a court.

As in many situations, the admission contracts of nursing home residents encounter clauses within that contract that makes arbitration mandatory should disputes of any kind arise. That includes most often neglect and abuse matters.

The nursing home industry has long preferred arbitration instead of lawsuits that residents raise for neglect and abuse.  Arbitration is a benefit to the nursing home industry because the cost of litigating cases in arbitration is much less than might be in a state court. The arbitration clauses that are found in some nursing home admission contracts are designed to limit the amount of recovery for an injured or neglected resident.

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