Justia Lawyer Rating for Robert D. Kreisman

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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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Marjorie Stearns, 89, suffered from dementia. She lived full time in a nursing home. The nursing home records showed that Marjorie had fallen at the nursing home. The nursing home initiated safety measures to protect against any future falls.

This Illinois Appellate case analyzed the legal concept of duty. It described two types of duties: one being the ordinary duty that all persons owe each other to guard against reasonably probable and foreseeable injuries that may arise as a consequence of an act and the second being an affirmative duty to act that arises as a result of a special relationship between one party and another.

In this case, the issue of duty was critical in that it had to be determined whether the ambulance service that was transporting the resident back from her dialysis treatment to the nursing home when she suffered a head injury had a duty to protect her.

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Cynthia Jaurdon-Simmons underwent neck surgery and was referred to Southern Nursing Home Health for her home-based daily wound care and weekly assessments of her viral infection.

About two months into her care, Southern Nursing Home Health stopped providing services to Jaurdon-Simmons, but the staff did not advise her of this or provide the necessary self-care equipment.

As a result of the lack of care, Jaurdon-Simmons did not receive the wound care that she needed. She suffered continued medical problems; her infection worsened. She sued the home health care agency claiming damages related to her pain and suffering. Before trial, the case was settled for a total of $99,000.

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Frank Hegyi, 91, was a hospice care resident with dementia at the defendant Fair Oaks Health Care Center in Crystal Lake, Ill. On June 10, 2008, he was sitting in his wheelchair in the facility’s dining room when he stood up and fell, fracturing his right femoral neck. He was hospitalized and died of unrelated causes on June 23, 2008.

His family sued the nursing home for negligence in violation of the Illinois Nursing Home Care Act, maintaining that the nursing home chose not place a “lap buddy” on his wheelchair. Damages were sought for pain and suffering.

The defendant nursing home argued that Hegyi was supervised appropriately and he was in the main dining room of the nursing home where he could be viewed frequently by the staff. The nursing home also argued that the use of lap buddy – essentially a cushion going across the wheelchair – was not required and its use had been decreased pursuant to restraint reduction requirements because state and federal law prohibit the nursing home from using restraints that could not be removed by the nursing home resident.

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Rosemary Jackson was a resident of the defendant’s Nature Health Trail Center in Mount Vernon, Ill., where she was rehabilitating after a colonoscopy at a different facility. She was 85 years old when she returned to Nature Trail following that colonoscopy. Over the next four days she was lethargic and showed signs of changes in her mental status.

Her daughter asked the nursing home staff to call the attending physician, but no call was made. On May 17, 2010, Jackson’s daughter telephoned the attending physician herself and told the doctor of her concerns about her mother’s condition. The doctor ordered an evaluation at the hospital.

An ambulance was called, but Jackson refused to go to the hospital. The daughter maintained that the nursing staff talked her out of going to the hospital.

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Salvador Palmieri was 86 when he underwent heart surgery and then experienced complications, which necessitated prolonged hospitalization in his hospital bed. A week after surgery, a nurse noticed new bedsores on his buttocks.

The hospital’s wound care nurse recommended cleaning and dressing the wound. However, a few months later, while Palmieri was still hospitalized, he became septic.

Palmieri was transferred to another hospital where he was diagnosed as having Stage IV sacral pressure sore, sepsis and other sores on his extremities. In spite of the medical treatment given, Palmieri died of sepsis, respiratory and kidney failure. He was survived by his wife and two adult sons.

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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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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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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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