Articles Posted in Assisted Living Facilities

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Samuel Dale Graham was driving his SUV; his wife, Sharla Kay, and their two children were passengers. Another motorist, Alisa Prueitt, drove off the road, over-corrected and struck the Graham SUV, which rolled over.

Samuel, 37 at the time, suffered fatal blunt-force trauma injuries and died at the scene. At the time of his death, he was working full time for a hospital and part time for a private healthcare company.

Sharla Kay was 33 at the time and suffered spinal fractures at C-1, C-6 and T-3 as well as facial cuts. She missed several months of work and continues to suffer pain and limited range of motion in her neck and back. Her medical bills totaled $11,700.

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A Pennsylvania Superior court held that a trial judge did not violate the Federal Arbitration Act (FAA) by refusing to split up a plaintiff’s wrongful death and survival claims arising out of the death of a nursing home resident. Margaret Tuomi was a resident at Kenric Manor, an assisted living facility. She developed contractures, pressure sores, a urinary tract infection, pneumonia, infection from a skin break and other medical issues. She was treated at a hospital. After she was transferred to Extendicare Health Facilities nursing home, she developed additional health problems from which she later died.

Tuomi’s husband and the administrator of her estate filed a wrongful death lawsuit on behalf of her beneficiaries and a survival action against Extendicare and Kendric Manor. Extendicare moved the trial court to compel arbitration under an arbitration agreement signed by Tuomi’s husband when she was admitted to Extendicare.

The trial judge held that Tuomi’s wrongful death beneficiaries, who were non-signatories to the arbitration agreement, could not be compelled to arbitrate. The trial judge also held that under Pennsylvania’s procedural law, the case brought as a wrongful death claim and survival action could be consolidated and in fact were required to be consolidated and remained together in court.

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In a nursing home dispute, the Illinois Appellate Court weighed in on an issue of whether a health-care power of attorney holder could bind the nursing home resident to an arbitration provision in order to gain admission to the long-term care facility. In this case, Edward M. Fiala Jr. sued Bickford Senior Living Group in Kane County, Ill. Bickford moved to compel arbitration based on an agreement, called “the establishment contract” that his daughter, Susan Kahanic, signed as attorney-in-fact under a health-care power of attorney.

Kahanic’s signature on the establishment contract was required in order to get Fiala admitted to Bickford Senior Living Group’s facility.

It was argued that the health-care power of attorney did not authorize Kahanic to consent to the arbitration provision in the establishment contract. The trial court agreed and denied Bickford’s motion.

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In an odd but troubling state of the law, the Illinois Appellate Court uncovered a hole in the Illinois Nursing Home Care Act protecting nursing home residents. In this case, Marvin Gruby was a resident of Manorcare Health and Rehabilitation Services. He was given notice that the nursing home wanted to involuntarily transfer him or discharge him from its Highland Park, Ill., facility. The move to discharge him was based on the allegations that he endangered the safety and health of other residents.

He filed a lawsuit claiming that the Illinois Department of Public Health deprived him of his right to a hearing under the Illinois Nursing Home Care Act and the federal Nursing Home Reform Amendments (NHRA) and appealed from a circuit court order that dismissed his complaint for administrative review.

The Illinois Department of Public Health started a hearing on Gruby’s objections to his discharge from Manorcare. During the continuance, Gruby was briefly hospitalized for a minor surgical procedure. While he was in Northwestern Memorial Hospital, Manorcare declared it would not permit him to return to its nursing home. Then it withdrew the notice of involuntary discharge or transferring and asked the department to “close this file.”

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On Dec. 13, 2006, Myron Tucker was admitted to a long-term care facility in Oak Lawn, Ill. Tucker was 52 at the time and was wheelchair dependent with impaired memory and judgment. His medical history included a seizure disorder, right-sided stroke with left hemiparesis, a craniotomy and brain surgery for a ruptured aneurysm.

The defendant physician, internist Dr. Neerja Ahlowalia, was assigned to act as Tucker’s attending physician at the long-term care facility or nursing home. On the night of Tucker’s admission, Dr. Ahlowalia telephoned orders for continuation of two anti-seizure medications as listed on the prescription bottles brought to the nursing home with him. The doctor ordered lab tests to be performed in the morning, including blood level testing of one of those medications. However, the lab tests still had not been done when Dr. Ahlowalia saw Tucker a few days later on Dec. 17, 2006.

Dr. Ahlowalia maintained she verbally asked the nursing home nurses to follow her prior order and she made no changes to her admission orders. This is the only time. Dr. Ahlowalia actually saw Tucker in person.

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The New York Times has reported that a California nursing home fined by the state for substandard nursing care and facing many lawsuits has gone to the bankruptcy court to try to extinguish the burden of these fines and coming judgments. The nursing home faced many lawsuits filed by families on behalf of patients.

The nursing home company, North American Healthcare, which owns and operates 30 nursing homes in California and other Western states, was criticized for taking the bankruptcy route to avoid paying out judgments and verdicts brought by injured or killed nursing home residents.

In 2014, another California nursing home chain filed for bankruptcy for the same reason. Also in Florida, a bankruptcy judge forced Medicaid officials to continue paying a nursing home that was protected under its Chapter 11 bankruptcy filing.

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As the baby boom generation ages, the population of nursing homes is also expanding. Elderly Americans and Illinois residents who reside in nursing homes are likely the most vulnerable members of this aging society. Nursing home cases should not be confused with medical malpractice cases. A medical malpractice case typically concerns particular acts of negligence, such as a failed surgery or misdiagnosis. In contrast, nursing home cases do not involve a particular or discreet act of negligence. Rather, a nursing home abuse case in Illinois involves a pattern of sub-standard care, abuse or neglect.

For example, a nursing home abuse case may involve bedsores. Bedsores can be wounds of the flesh that take form over many days, weeks or even months. A nursing home resident who is dehydrated or suffers from malnutrition would not be the result of a single wrongful act.

Many nursing home cases arise from substandard care, abuse or neglect. Often nursing homes in Illinois operate without a single on-site treating physician; instead, they have only one who may make regular rounds. At the same time, most well-run nursing home facilities provide treatment by a resident physician, a nursing home administrator, a well-trained nursing staff, CNAs, physical and occupational therapists, speech pathologists, wound care doctors, dieticians and other medical and nursing providers.

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The Illinois Probate Act was recently amended to include a new section entitled, “Presumptively Void Transfers.” 755 ILCS 5/4(a) et seq. The effective date of the statute was Jan. 1, 2015. The intended purpose of the legislation was to prevent unrelated caregivers from taking advantage of elderly or disabled persons in their making testamentary gifts under duress or under less than forthright circumstances.

In essence, the new statute states that if a “transfer instrument” is challenged by a court proceeding, there is a rebuttable presumption that the transfer instrument is void if the transferee is a “caregiver” and the transfer exceeds $20,000. 755 ILCS 5/4(a)-10(a).

According to the statute, once the presumption is in place, it can be rebutted by the caregiver in two ways:

(1) The caregiver, beneficiary, proves by clear and convincing evidence that the transfer was not the product of fraud, duress or undue influence; or

(2) By showing that the beneficiary’s share under the transfer instrument is not greater than the beneficiary’s share already in the effect prior to becoming a caregiver. 755 ILCS 5/4(a)-1(15)(2) and 10(a).

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The owners of a chain of nursing homes housed in multiple states around the United States have been held to have committed fraudulent transactions in an attempt to transfer liabilities to a “shell company.” The owners of Fundamental Long Term Care Inc. have been the subject of multiple wrongful death cases related to negligence in handling nursing home residents.

Liabilities that included many judgments in Florida have never been paid to the families of the residents who died at the hands of the nursing home personnel. There were reports of four wrongful death judgments in Florida alone. The company filed for bankruptcy protection, but not without careful scrutiny by the court and the judgment creditors.

The U.S. Bankruptcy Court judge in Tampa, Fla., ruled that the owners of Fundamental Long-Term Care Holdings LLC engaged in a “carefully orchestrated sham transaction” by selling a unit of the company in 2006 to a retired graphic artist who didn’t even know he had purchased the shares of the company.

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John Tully, 80, had a history of an unsteady gait. He was living at a nursing home owned and managed by the California Department of Veteran Affairs. Tully had fallen twice within a 10-day period and, as a result of his last fall, he fractured his spine. Complications from that fall included the loss of use of his legs; he now requires a catheter to urinate and must undergo a fecal removal procedure three times a week.

Aided by his attorneys, Stephen Garcia and William M. Artigliere, Tully filed a lawsuit against the Veterans Administration alleging that its nursing care was negligent in allowing him to walk without the assistance of a walker, which resulted in his first fall. They also alleged that the facility’s nursing assistant attempted to transfer Tully using a mechanical lift without proper knowledge on how to do so, which led to his second and most damaging fall.

The lawsuit also alleged that the defendant’s employees chose not to provide a proper medical evaluation after the first fall and did not timely inform Tully’s family about these two incidents. The defendant denied the allegations of the lawsuit; however, the case settled before trial for $1,250,000.

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