Justia Lawyer Rating for Robert D. Kreisman

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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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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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Robert Lankford, 69, underwent abdominal surgery. He was admitted to Life Care Center Pensacola for his recovery period. One of the nursing facility’s nurses mistakenly removed Lankford’s skin staples, which led to a wound infection. Lankford required a second surgery to close the wound.  Afterward, he was returned to Life Care Center where he was subsequently diagnosed with having C. difficile infection. Lankford later died of unrelated causes.

The Lankford family and estate filed a lawsuit against the nursing home and a related corporate entity claiming liability for its nurse’s blatant mistake of removing the staples and for the nursing home’s choosing not to adequately have in place infection control resources. The Lankford family maintained that had the nursing home been equipped properly, the infection could have been controlled, saving Lankford’s life.

The jury’s verdict was $303,300. The attorney representing the Lankford family was Clay Mitchell.

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Martha Pierce, 83, suffered a stroke and became partially paralyzed and weak on her right side. She required additional assistance from her nursing facility, the Allenbrooke Nursing & Rehabilitation Center.  One of the nursing home’s staff members identified Stage IV pressure ulcers on Pierce’s right foot. Even in view of that serious condition, the ulcers were allowed to worsen and Pierce developed sepsis. As a result, she required an above-the-knee amputation of her right leg and died four months later.

Pierce’s estate and family sued the nursing home and several corporate entities, claiming negligence in violation of the state’s Nursing Home Protection Act. The jury entered a verdict of $30 million, which included $28 million in punitive damages.

The attorneys representing Martha Pierce’s family were Kenneth L. Connor, Carey Acerra and Cameron Jehl.

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The plaintiff, August Bosman, who was the special administrator of the Estate of Joan Bosman, appealed from the denial of his motion for a new trial. The plaintiff argued that the court was in error in replacing a holdout juror with an alternative juror during jury deliberations.

The lawsuit was filed in June 2011 against Riverside Health System, d/b/a  Miller Healthcare Center and Riverside Senior Living Center where it was alleged that Joan Bosman suffered multiple necrotic pressure ulcers while she was a resident of the long-term care facility operated by the defendant Riverside Health System.

During jury selection, one juror was questioned about whether she had been personally involved in or knew someone who was involved in an incident that resulted in personal injuries or damages and if the incident resulted in a lawsuit. This juror said her friend had filed a lawsuit against a nursing home after her friend’s mother died from injuries sustained while she resided at the facility. The juror assured the court that her prior experiences would not affect her ability to sit as a juror. In addition, defense counsel asked this juror whether she personally had any experience receiving rehabilitative care or knew someone who had received care. The juror said she had no experience receiving rehabilitative care and that she could set aside her friend’s experience with the nursing home and decide the case on the evidence presented.

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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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