Justia Lawyer Rating for Robert D. Kreisman

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An Ohio Appellate Court has held that an arbitration agreement signed by the son of a resident at the time of the father’s admission to a nursing home did not justify compelled arbitration. Marcus Vickers signed an arbitration agreement when his father, Jack Johnson, was admitted to the Canal Pointe Nursing & Rehabilitation Center.

After Johnson’s death, his son, Marcus Vickers, filed suit against the nursing home for negligence and wrongful death.  The lawsuit alleged survivorship as well as wrongful death claims.

The defendant nursing home filed a motion to stay the proceedings and compel arbitration.  The trial judge granted the nursing home’s motion and Vickers appealed.

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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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Violet Moseson, a 97-year-old resident of an assisted living facility, was mandated to be checked on every morning. The facility was to perform safety checks each morning for this resident and others. At the time of this occurrence, the electronic system through which the facility was supposed to communicate with Moseson was not turned on in her apartment when she moved in.

A week later, Moseson fell in her apartment at night. It was alleged that she spent the next 2-3 days trying to get help. There was a trail of blood and excrement in her apartment when a family member found her lying on the floor. Because of the severity of the fall, Moseson suffered spinal fractures, contusions as well as progressive dementia. Moseson died several months later and is survived by her two adult sons.

The decedent’s estate and family brought a claim that was arbitrated against the assisted living facility. It was maintained that the facility chose not to check on Moseson every 24 hours and chose not to activate the call system in her apartment. The defendant facility disputed the length of time that Moseson had been left in the apartment after her fall and countered that she was at fault for failing to purchase an emergency pendant. Many elderly people wear a pendant around their necks for emergencies. The pendant has a call button that alerts a switch board that then contacts family members.

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Ms. Doe, 78, suffered from blindness and mild dementia. Her nursing home care plan called for her to receive assistance from at least two people during any type of physical transfer. This would mean transfer from her bed or transfer from a chair or a transfer from her wheelchair. Nonetheless, only one nursing home aide assisted Ms. Doe when transferring her to the toilet. Under these circumstances, Ms. Doe fell and fractured her left tibia and fibula. She died six days later as a result of her injuries. Ms. Doe was survived by her two adult sons.

Ms. Doe’s family sued the nursing home claiming it chose not provide adequate transfer assistance, which led to her fall and unfortunate passing. The defendant nursing home argued that Ms. Doe’s death resulted from her underlying medical conditions, not from her fall. Before trial, the case was settled for $325,000 confidentially.

The attorney representing the Doe family was Brett R. Leitner.

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In a confidential settlement, a nursing home paid $475,000 to a seriously injured resident. The resident was listed and charted as being at a high risk for falling. However, several nursing assistants placed the resident at the edge of her bed and then left her alone.  This occurred while the resident was waiting for her dialysis appointment. The resident fell off the bed and hit her head on the floor.

The resident suffered a traumatic head injury and died one month after the date she suffered her head injuries. The resident was survived by her three adult children.

The lawsuit brought by the family of this resident alleged that the nursing home chose not to monitor the resident properly in order to prevent her fall. This case was settled as a confidential settlement.

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Sophia Alcon, 77, was admitted to Life Care Center of Pueblo, a skilled nursing facility. During the 7 months that she remained there, she suffered various injuries and illnesses, including urinary tract infections, bed sores, dehydration, malnutrition, pain, renal failure and aspiration pneumonia. She was brought to a nearby hospital where a staff medical provider noticed that her vagina was packed with dried feces. She died as a result of her medical conditions and is survived by her 10 adult children.

One of her sons, on her behalf and for the family, sued the nursing home and its corporate affiliates maintaining that they were responsible for her death. In the complaint it was alleged that the nursing home was negligent, was responsible for her wrongful death and was guilty of numerous consumer protection violations. Among other things, the Alcon family alleged that the defendants chose not to properly assess Sophia’s medical needs, formulate an appropriate care plan, provide adequate staffing and properly trained personnel at this skilled nursing facility.

The jury’s verdict of $5.56 million, included $5 million in punitive damages, which are designed to punish the defendants for the abusive treatment to Sophia Alcon.

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In an April/May CBA Record article written by attorney Dmitry N. Feofanov, the options for agreeing to confidentiality clauses in settlement agreements were explained. Too often confidentiality agreements seem to show up in settlement agreements or release documents when no negotiations have been previously entertained. At the very least, if a confidentiality clause is insisted upon by any party to a settled case, the inclusion should be negotiated as part of the consideration.

Mr. Feofanov’s focus was on the ethics rules of professional conduct. What Mr. Feofanov wrote was that confidentiality clauses should be avoided whenever possible and even with the risk that refusal to include confidentiality clauses to the agreement may undo a settled case.

Mr. Feofanov says he refuses to compromise on confidentiality clauses in any way and would not enter into settlement agreements that contain confidentiality clauses.

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The Illinois Nursing Home Care Act has been amended. The new law changes the requirements of nursing home facilities when they transfer residents. The amendment allows for exceptions to the requirement that nursing home facilities shall request a criminal background check on people admitted to a facility within 24 hours of admission when the transferring resident is either (i) immobile or (ii) moving into hospice.

These exceptions are applicable only if a background check was completed by the resident’s prior facility and the resident was transferred to the current facility with no time passing in which the resident was not institutionalized.

If either exception is applicable, the prior facility shall provide the facility to which the resident is being transferred with a copy of its background check of the resident and all supporting documentation, including, when applicable, the criminal history report and the security assessment.

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On April 13, 2016, a release from the National Pressure Ulcer Advisory Panel (NPUAP) stated that the term “pressure injury” replaces “pressure ulcer” in the NPUAP injury staging system. According to the report, a change in terminology more accurately describes pressure injuries to both intact and ulcerated skin. It was concluded that the previous staging system was confusing. A Stage I and Deep Tissue Injury described injured intact skin, while the other stages describe open wounds or ulcers.

In another change in terminology, the panel is now using Arabic numbers instead of Roman numerals in the names of stages.

A meeting of over 400 professionals was held in Chicago on April 8-9, 2016. Using what was called the consensus format, Dr. Mikel Gray of the University of Virginia guided the Staging Task Force.

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The Illinois Appellate Court for the First District has reversed and remanded a decision by a Cook County circuit court judge in a nursing home case involving discovery and confidentiality.

In 2011, Robert Holman was a resident of a long-term care facility, Renaissance at Midway.  On or about Jan. 22, 2011, Holman was attacked by another resident. He suffered injuries to his left eye, which caused a hyphema, an orbital fracture and a globe rupture.

On Jan. 17, 2013, a lawsuit was filed in the Circuit Court of Cook County by John Stuckey who was the attorney-in-fact for Holman and his sister. The lawsuit named Renaissance but did not name the attacker, who was identified in the lawsuit as “John Doe.”

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