Justia Lawyer Rating for Robert D. Kreisman

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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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It happens that lawyers who handle nursing home abuse cases, medical negligence cases, personal injury cases, wrongful death cases, birth injury cases, product liability cases and general injury cases for those who were injured or killed work on a contingency basis with their clients. That means that the client pays nothing to the lawyer unless there is a recovery by way of a settlement or judgment. At times, cases that have been filed turn out to be not as solid as the lawyer may have envisioned. Sometimes, for other reasons dealing with the handling of the case or a client disagreement, the attorney and client agree to withdraw an appearance in the pending case so that the client can find another lawyer.

In one case that occurred in our practice, a case involving a man who was seriously injured in a motorcycle accident, the attorney first handling the case withdrew early in the litigation and left the client to search for another attorney. The client located an attorney whose primary practice is outside of Illinois, but hired Kreisman Law Offices to act as local counsel.

The case was a very difficult and serious injury case. It involved a motorcycle and road construction. The client hired new counsel and the litigation ensued. After the taking of as many as 50 depositions of fact witnesses, experts and medical witnesses and after a long and tedious mediation, the case was finally settled two years later.

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The Illinois Probate Act was recently amended to include a new section entitled, “Presumptively Void Transfers.” 755 ILCS 5/4(a) et seq. The effective date of the statute was Jan. 1, 2015. The intended purpose of the legislation was to prevent unrelated caregivers from taking advantage of elderly or disabled persons in their making testamentary gifts under duress or under less than forthright circumstances.

In essence, the new statute states that if a “transfer instrument” is challenged by a court proceeding, there is a rebuttable presumption that the transfer instrument is void if the transferee is a “caregiver” and the transfer exceeds $20,000. 755 ILCS 5/4(a)-10(a).

According to the statute, once the presumption is in place, it can be rebutted by the caregiver in two ways:

(1) The caregiver, beneficiary, proves by clear and convincing evidence that the transfer was not the product of fraud, duress or undue influence; or

(2) By showing that the beneficiary’s share under the transfer instrument is not greater than the beneficiary’s share already in the effect prior to becoming a caregiver. 755 ILCS 5/4(a)-1(15)(2) and 10(a).

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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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Mary Dwyer was 87 years old when she was admitted to Harbor View Heath Care Center for a short-term rehabilitation after she had surgery. During the following three months, she lost 20 pounds and developed multiple pressure sores, including a Stage IV sacral wound. Dwyer required two surgical debridements, application of a wound vac to remove fluid from the wound and a diversionary colostomy.

She then suffered a complication, which necessitated the reinsertion of her bowels into her abdomen. Following the surgery, Dwyer died several days later and was survived by her three adult children.

Dwyer’s family filed a lawsuit against the nursing home’s corporate owners and several affiliated companies claiming inadequate nursing home staffing. Specifically, the lawsuit claimed that the defendant nursing home did not have enough certified nursing home aides available to turn her every two hours or a full-time dietician who could assist nursing home residents like Dwyer during meals. After a jury trial, the jury returned a verdict of $13.2 million for this wrongful death action.

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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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A Georgia jury has awarded $43.5 million in damages related to the abuse and neglect of an 80-year-old man, Morris Ellison. Ellison was a resident of a nursing home where the ownership held title to a string of nursing facilities in and around the state of Georgia. Ellison eventually died in this nursing home.

Along with the neglect and possible abuse, Ellison was found to have been malnourished, dehydrated and lacking sufficient nursing and medical care, all of which was a contributing factor in hastening his death. But the background of this catastrophic case was that the nursing home owners had bilked Medicare and Medicaid out of tens of millions of dollars.

In this case, the nursing home’s individual owner and his wife ran three nursing facilities or long-term care facilities in Georgia. According to newspaper reports, this couple had a net worth of almost $100 million, relying almost exclusively on Medicaid and Medicare payments to operate their nursing home empire. According to the testimony in the case, one of the nursing home directors stated that the facilities were so lacking in funds that they were unable to pay for laundry, essential supplies and personnel wages for the nursing homes. The owners were systematically draining money out of the nursing homes, which resulted in a lack of food supplies, water, medicine, personnel and basic cleaning supplies.

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Sui Mee Chiu, 85, was admitted to the Arcadia Health Center for long-term care. A member of the Arcadia staff found a Stage I pressure sore on Chiu’s lower back. A care plan was then initiated by the nursing home staff. The plan included pressure-reducing measures, frequent bathing and wound care. However, the pressure sore progressed to Stage IV, necessitating 7 hospitalizations for wound care management. Chiu developed recurring urinary tract infections from her use of Foley catheters and required a year of antibiotic treatment.

Because of the antibiotic treatment, Chiu became antibiotic-resistant and died of pneumonia and respiratory failure about 15 months after the Stage I pressure sore was first discovered and diagnosed. She was survived by her two adult children.

Her family sued the nursing home and its licensee for negligence and for choosing not to implement the care plan in a timely fashion. It was claimed that had a proper treatment been implemented, Chiu’s pressure wound would have healed without a problem. The family also maintained that the nursing home chose not to keep adequate documentation regarding Chiu’s treatment at the nursing home.

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In a case that was filed in confidential style, Ms. Doe, an 85-year-old woman with dementia and other medical issues, lived in a nursing home that was owned by Kindred Healthcare Inc. A nursing aide penetrated Doe’s vagina with an object while the two were in a bathroom next to her room. Despite Doe’s heavy vaginal bleeding after the incident, Doe was not taken to the hospital for several days.

Doe was diagnosed later as having suffered vaginal trauma and bruising resulting from this sexual assault.

Doe’s family sued Kindred Healthcare claiming liability and injuries to Doe because of the sexual assault. The jury entered a verdict in favor of Doe’s representative in the amount of $2.01 million.

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