Articles Posted in Nursing Home Residents

Edward Arnold was 70 when he was admitted to Whitestone Care Center for rehabilitation after a below-the-knee amputation of his left leg. After he went through dialysis, he was placed in a chair and left alone.

Arnold later fell, fracturing his right hip. The rehabilitation center’s staff then placed him back in his bed. Several days later, he was admitted to a hospital where he underwent hip surgery. Because of the hip fracture, he received additional rehabilitation, but he died months later of unrelated causes.

Arnold’s estate sued the nursing home, its corporate owners and managers, and other related corporate entities, alleging failure to adequately staff the nursing home, corporate negligence and joint venture liability. Continue reading

Ralph Ford, 73, lived at St. Francis Nursing Center. He suffered from cognitive impairment and had a tendency to wander.

On one night, he left the nursing home unnoticed in his wheelchair. He was found early the next day in a Dumpster several blocks away; his limbs were frozen solid. He unfortunately died shortly thereafter. He was survived by two siblings.

Ford’s estate sued the nursing home alleging it negligently allowed him to leave the nursing home through an unlocked, broken and unarmed door and then delayed initiating a search for him for five hours after discovering that he was missing from his room.

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The Texas Supreme Court has held that a plaintiff satisfied the requirements of the state’s Medical Liability Act. The plaintiff offered multiple expert reports in a case alleging that an assisted living facility and other medical providers chose not to timely discover a resident’s missing dental bridge.

Betty Hathcock lived at Village of Lake Highlands, an assisted living facility. She reported the loss of her dental bridge to the facility’s staff members, who searched the facility but did not find it. It was later discovered the bridge was lodged in her trachea when an x-ray was done. She had developed respiratory symptoms that worsened over the course of an evening. Unfortunately, Hathcock died shortly after the discovery of the dental bridge.

Hathcock’s daughter sued the assisted living facility claiming failure to timely discover the missing bridge. To support the lawsuit, the Hathcock family filed four separate expert reports to satisfy the medical liability statute’s requirements, including one report discussing the medical cause of Hathcock’s death. The defendant moved to dismiss the case; the trial judge denied. The appellate court reversed the trial judge, and the case was taken up to the Texas Supreme Court for further consideration.

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The Iowa Supreme Court has held that the state owed no legal duty to a nursing home resident who was allegedly sexually assaulted by a convicted sex offender who had been transferred to the nursing home after leaving the state’s civil commitment unit for sex offenders.

Mercedes Gottschalk was a resident of the Pomeroy Care Center, a nursing home.  She was allegedly sexually assaulted by a violent sexual predator who was transferred from a state sex offender unit to this nursing home after receiving an Alzheimer’s disease diagnosis.

Gottschalk, and then later her estate, sued the nursing home alleging that it was reckless and negligent in the way the nursing facility cared for her. Pomeroy Care Center filed a cross-claim against the State of Iowa seeking relief. The state moved successfully for summary judgment.  An intermediate appellate court affirmed that decision.

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Cecil Gary, a 60-year-old resident of the McCracken Nursing and Rehabilitation Center, had a history of stroke and was also an amputee.  Although he had limitations in caring for himself, he was aware of his surroundings and generally enjoyed his life.

As a resident of this nursing home, he experienced eight different episodes of dehydration and later developed nausea and severe pain. In this particular incident, the nursing home staff left him in bed, in distress, for about 27 hours before calling paramedics to transfer him to a local hospital. When he was transferred, he was diagnosed as being severely dehydrated and in hypovolemic shock and acute kidney failure.

At the hospital, he received 27 liters of fluid before sending him back to the nursing home. Once he was back at McCracken Nursing and Rehabilitation, he fell, breaking his hip in three places. Gary was not a candidate for hip surgery given his medical condition.

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In this case, the Kentucky Supreme Court’s clear-statement rule was held to violate the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment.

The Federal Arbitration Act (the Act) makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. ¶ 2, establishes an equal-treatment principle:  A court may invalidate an arbitration agreement based on “generally applicable contract defenses,” but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,” AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339.

The Act thus preempts any state rule that discriminates on its face against arbitration or that covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements.

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A federal jury in North Carolina entered its verdict in favor of the families of three nursing home residents who died at Blue Ridge Health Care Center.  The lawsuit filed for the wrongful deaths claimed these deaths were caused by the callous neglect of these and other nursing residents.

The jury awarded both compensatory and punitive damages in the case. The suit alleged that the nursing home’s medical staff chose not to properly monitor the patients, allowing them to remove their own breathing tubes without proper safeguards in place. The families alleged in these wrongful death lawsuits that the patients all required ventilator or tracheotomy tubes, which the residents were able to  remove on their own.  There was claimed to be little or no medical staff intervention to prevent residents from removing their ventilators or tracheotomy tubes.

The jury entered the verdict in favor of the families of the nursing residents — Baird, Jones and Kee — compensatory damages of $50,000, $300,000 and $300,000, respectively, and punitive damages to each family in the amount of about $1.5 million.

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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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Life Care Centers of America, which operates 200 locations and is based in Tennessee, will pay $143 million to settle a False Claims Act (FCA) litigation in which it was alleged that the corporation had billed Medicare for excess treatment. According to the report of the case, this was a record FCA settlement for the nursing home industry.

The consolidated cases arose because of two whistleblower cases as well as an unjust enrichment lawsuit brought by the Department of Justice (DOJ) against the owner of Life Care. The two former employees will share $29 million in the settlement payout.

This settlement was reported to be the largest in the Justice Department’s history involving a skilled nursing home chain. The size of the settlement was based on Life Care’s ability to pay this amount.  The government, which joined in the FCA cases in 2012, alleged excessive treatment of seniors in order to maximize Medicare reimbursements.

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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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