Articles Posted in Nursing Home Residents

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Eleanor Groeller died, allegedly because of the nursing home negligence of Evergreen Healthcare Center where she was a resident. Her son, William M. Groeller Jr., who was administrator of her estate, filed a negligence complaint against Evergreen Healthcare.

The trial was held in the Circuit Court of Cook County wherein Groeller’s counsel requested that the judge give a jury instruction on institutional negligence as to the nursing home. However, based upon testimony from Groeller’s nursing expert about the alleged failings of the nursing home’s nurses, the defendant nursing home requested an instruction to the jury on professional negligence. That instruction was designed to instruct the jury on the negligence of the nurses, not the nursing home as an institution.

The trial judge decided to give both of these jury instructions. The jury returned a verdict for the nursing home and Groeller appealed arguing that the instructions were contradictory.

 

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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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M.A. was 76 years old when he was first admitted to a skilled nursing facility for rehabilitation after knee surgery. M.A. underwent physical therapy and began to recover.

He later developed shortness of breath and was administered oxygen and other therapy.

Over the next several days, M.A. experienced shortness of breath, which continued, sweating and a gray skin tone.

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It is not new that nursing home residents are too often at risk for abuse, neglect and injury in the more than 17,000 nursing home facilities operating in the United States. Too many times these facilities are understaffed or staffed with untrained or unskilled workers. All of this results in many reports of serious physical, verbal and even sexual abuse in Illinois nursing homes and in other states.

It has been more than a decade since there was a two-year investigative study completed that found more than 9,000 instances of abuse. The most common abuse problems are untreated bedsores followed by inadequate medical care, malnutrition, dehydration, falls, inadequate hygiene and cases of wandering residents.

The aging of adult Americans places even more stress on nursing home facilities and long-term care facilities in which the aging are most likely to be residing. The cost of maintaining a resident at a qualified nursing home is now out of reach for many families. Many times a family member or a loved one becomes unmanageable at home because of illness, injury, age, dementia or other onset of the conditions related to aging.

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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 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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Peter Piel, 62, resided at the Mirajoy Home. When a nurse’s aide attempted to transfer Piel from his bed to a shower chair, he fell, hitting his head, fracturing his left hip and injuring his right leg. He required surgery for the hip and was diagnosed as having brain damage and chronic pain. His injuries and permanent condition are all related to his fall at the assisted living facility.

Through his guardian, Piel filed a lawsuit against the nursing home and its owner claiming improper staffing and training. Among other things, the lawsuit claimed that there should have been two aides transferring Piel to that shower chair.

The defendants argued that his injuries were not related to his fall. They contended that the aide had caught him before he hit the floor and that his injuries were not as significant as claimed. Before the case went to trial, the parties settled for $1,500,000. The attorneys representing Piel’s guardian were Michael F. Moran and Alexander H. Feldman.

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An appellate court in Ohio has ruled that a family’s motion to compel was wrongly granted because there had not been an in camera inspection of the requested documents under that state’s peer review laws.

In this case, the nursing home decedent was living at Manor Care of Mayfield Heights. Her health had deteriorated while living there. The family sued Manor Care and others claiming negligence, statutory violations under the laws of the nursing home care law of the state and other claims. During the course of the litigation, the family of the decedent moved to compel production of documents related to an alleged investigation into the nursing home resident’s death. The trial judge granted that motion.

The appellate court reversed the trial court noting that although 42 C.F.R. §483.10 provides nursing home residents with timely access to their own records, under 42 U.S.C. §13.96(r) disclosure of records from a quality assessment and assurance committee is limited.

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In a measure passed by the Florida State Senate, lawsuits that allege nursing home abuse could be subject to smaller awards.  The bill would shield many private equity firms that own nursing homes around the state of Florida.  The bill is directed to shield from financial exposure in lawsuits for those in ownership positions and take no active role in the management of the facilities.  It would limit actions against any ownership party who had no impact on the day-to-day activities in the nursing home facility. 

The proponents of the bills say its purpose is to allow for private equity firms and other private investors to take a more active role in investing in nursing home facilities in the state.

According to the report, this bill was targeted at Tampa attorney James Wilkes, who has a reputation for successfully representing plaintiffs in nursing home abuse cases. The bill has the support of the Florida Healthcare Association, AARP, the Florida Justice Association, which represents a host of Florida trial lawyers. 

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