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Nursing Home Lawsuit News and Settlement Updates

• August 28, 2018

Nursing Home Neglect Lawsuit News: Investigators Reopen Cases Against Two Texas Nursing Homes Over Harvey Response

In the aftermath of Hurricane Harvey, which bombarded the Houston area with record rainfall in August 2017, the Texas Health and Human Services Commission investigated at least 44 different nursing homes over storm-related complaints. In only two of those cases did the commission level any form of punishment, in both cases imposing a fine of less than $1,000, according to an investigation by the Dallas Morning News published August 23, 2018.

Now, months after announcing that the investigations had been closed, the commission is taking another look at the actions of two nursing-home facilities that have been accused of not taking proper measures to protect their residents during and after the storm.

The commission reportedly has received 28 separate complaints related to the storm response of the Cypress Glen and Lake Arthur Place nursing homes. The facilities refused to evacuate residents prior to the storm, a decision that allegedly left elderly, enfeebled individuals wallowing for hours in possibly-contaminated floodwaters.

“They are responsible,” Peggy Bailey, whose husband was a resident at Lake Arthur Place nursing home prior to his passing away just months after Hurricane Harvey, told The Dallas Morning News, referencing the facility’s management’s role in her husband’ s death. “Because of the people sitting in that water and the backing up of the commodes, they should have gotten the people out of there. All that was just in the water and they were just sitting in it.”

James Bailey, 76, wheelchair-bound and receiving care for dementia, was left sitting for hours in up to a foot of filthy water that reeked of human waste. He later contracted pneumonia from which he passed away approximately two months later. His widow blames the operators of the Lake Arthur Place nursing home not only for her husband’s death but also for the unnecessary suffering he endured during his final days.

At the time of the storm, Jeff Rosetta, Lake Arthur Place’s chief administrator, was so adamant about refusing to evacuate the facility that police had to lead him away in handcuffs before volunteers could assist the ailing residents under his care out of the flooded premises. Per a search-warrant affidavit reviewed by The Dallas Morning News, a furious Rosetta referred to officers on the scene as “fake cops” and insisted that they “cannot take anyone out of this facility.”

Peggy Bailey reportedly does not blame Rosetta for the harm that befell the residents under his care, as she believes he was merely following orders from above.

Andrew Kerr, chief executive officer for Senior Care Centers, which owns both Cypress Glen and Lake Arthur Place, has argued that the company and its facilities lacked the independent authority to force an evacuation of residents, saying that only the government could issue such an order. According to The Dallas Morning News, state officials and other sources have confirmed the false nature of Kerr’s claim.

While the two nursing homes themselves have remained shuttered since the storm’s aftermath, a local criminal investigation into the facilities also remains open. According to Port Arthur police Detective Mike Hebert, the lead investigator on the criminal case and the officer who led the administrator Rosetta away in handcuffs, told The Dallas Morning News that his department will soon present its case to the Jefferson County district attorney’s office, which will determine whether criminal charges are warranted.

Both facilities had received abysmal ratings during their most recent government reviews prior to Hurricane Harvey, with federal inspectors granting the nursing homes each just one out of five stars, a rating that designates them “much below average.”

If you or a loved one has suffered harm as a result of an unscrupulous nursing home operator, contact the team of experienced attorneys at TheLawFirm.com right away for a free legal consultation with an actual attorney!

Source:

Dallas Morning News

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• August 13, 2018

Nursing Home Lawsuit News: Federal Appeals Court Reinstates Punitive damages Over Nursing Home Deaths

A Fourth Circuit appellate panel announced Thursday, August 2, 2018 its decision reversing a District Court Judge’s dismissal of $2.05 million in punitive damages against a nursing home operator that had been held liable in the deaths of nursing home residents under its care.

Citing evidence that an administrator for Blue Ridge Health Care Center had informed workers that staffing levels were being lowered as a cost-cutting move for the company, Judge Richard Gergel wrote for the panel, “Cuts to staffing and supplies were a deliberate corporate policy enacted to increase profits by millions of dollars. Defendants were repeatedly informed that those cuts placed patients at risk or serious injury—patients whose lives were entirely dependent upon Blue Ridge’s providing diligent care—yet after such warnings defendants continued to profit by endangering all their patients.”

In a case that will be all too tragically familiar to TheLawFirm.com readers, the estates of three deceased residents originally sued the owners of Blue Ridge in January 2014, claiming that the nursing home had been responsible for the deaths. According to the lawsuits, each patient required special tubes for breathing and needed close monitoring to ensure they did not remove the tubes.

However, the estates claim that not only did staff fail to adequately check in on its patients, but that alarms designed to alert staff when a patient removed his or her breathing tube were found to be in the off position.

The estates further alleged that the deaths were a direct result of staffing cuts that had been motivated purely by a desire to boost profit margins to the detriment of patient safety. Plaintiffs also accused the defendants of failing to appropriately oversee residents being distributed anti-anxiety medications and of failing to respond adequately to the risk of patient falls.

In February 2018, a jury found the facility Blue Ridge of Raleigh, its owner CareOne, and service-provider CareVirginia Management liable for the three deaths, ordering the companies to pay $5.2 million in compensatory and punitive damages, $4.55 million of which was tagged for punitive damages.

The district court judge later dismissed the punitive damages component of the verdict, saying that the evidence presented failed to meet the standard for punitive damages. But on August 2, the appellate panel disagreed, reinstating $2.05 million of the award.

Source:

Law 360

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• July 27, 2018

Nursing Home Lawsuit News: DOJ Says FLA Judge Erred in Verdict Against Nursing Home Operator

A Florida judge improperly applied the relevant legal standard when he overturned a $350 million Fair Claims Act (FCA) verdict against nursing home operator CMC II LLC, according to an amicus brief filed on July 20, 2018 by the US Department of Justice (DOJ) in the appeal of the ruling.

Whistleblower Nurse Angela Rukh brought the FCA claims against CMC II, which including allegations that the company failed to create comprehensive health care plans for its patients, overstated their needs in seeking government reimbursements, and provided unnecessary services.

According to the DOJ, US District Judge Steven Merryday misapplied the law in dismissing a $350 million judgment against the nursing home chain operator, focusing too much on the fact that the government did not seek reimbursement from the company once it became aware of the violations.

“Under the Supreme Court’s Escobar decision, the materiality inquiry is meant to shed light on the government’s decision-making at the time of the relevant transaction — not at some later date after the transaction is over,” the DOJ brief states, according to Law360.

While the fact of the government’s not seeking reimbursement may be relevant, it should not be determinative to the validity of the FCA claim, the government further asserted.

Rather than the jury’s nine-figure verdict being unreasonable based on the law, the DOJ argues that the jury, in fact, reached the only reasonable conclusion based on the facts as presented. Ruckh’s whistleblower action included evidence that CMC II “upcoded” certain treatments so as to categorize them for greater reimbursement from government payers like Medicare and Medicaid. Rukh also accused CMC II of “ramping-up” other services, again in order to receive more government money.

“For the upcoded and ramped-up claims submitted to Medicare, materiality is obvious,” the DOJ wrote. “Indeed, it is difficult to see how any reasonable jury could have concluded otherwise.”

If you or a loved on suffers harm at the hands of an unscrupulous nursing home operator, contact the experienced team of attorneys at TheLawFirm.com right away for a free legal consultation with an actual attorney!

Source:

Law 360

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• July 24, 2018

Nursing Home Lawsuit News: PA Appellate Court Revives Pain and Suffering Claims Against Nursing Homes

On March 17, 2013, Walter Bradley suffered a debilitating stroke, after which he required professional care and monitoring. He was checked in as a resident at Thomas Jefferson Health System, a facility run by the company HCR Manor Care Health Services.

However, according to a lawsuit brought on Bradley’s behalf by his family, he did not receive the care he required. Instead, Bradley developed bed sores and sepsis, which his estate alleges ultimately led to his death on September 3, 2013.

At trial, the claims were dismissed over the supposed expiration of the two-year statute of limitations to bring such allegations in court. However, a Pennsylvania court of appeals on July 16, 2018, reversed that decision, saying the lower court had erroneously established the deadline as two years following the development of Bradley’s bed sores, rather than two years following his death.

The ruling will now allow certain of the family’s claims to move forward at trial, including allegations of pain and suffering Bradley endured due to the mistreatment.

However, the appellate court did agree with the lower court’s ruling that the plaintiff had failed to establish a sufficient causal connection between the bed sores and Bradley’s death to support the claims of wrongful death and negligence, affirming the lower court’s dismissal.

“Following our review of the record, we agree with the trial court that [the plaintiff’s expert witness’s] passing reference to a ‘downward spiral’ failed to raise a genuine issue of fact for the jury to decide,” the appellate court wrote, according to Law360. “The causal connection from bedsores to sepsis to death is not so self-evident that expert testimony was not required.”

The case will now return to the trial court where the family will bring the pain and suffering claim.

Source:

Law 360

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• July 17, 2018

Nursing Home Lawsuit News: Appeals Court Upholds Tossing of Elder Abuse Claims Against Nursing Home in Choking Death

While a resident at California’s Victoria Healthcare Center, cancer patient Harvey Cohoon was on a strict diet due to his difficulty swallowing. Despite these known restrictions, Mr. Cohoon was served chicken by the very staff being paid to look after him. Unable to properly chew the food, Mr. Cohoon choked on the chicken and passed away one day later.

Following Mr. Cohoon’s untimely death, his niece brought a lawsuit on his behalf, claiming, among other things, that the nursing home facility was liable for elder abuse in serving him chicken that choked him. After trial, a jury agreed, ordering Victoria Healthcare Center to pay $1.6 million in damages on findings elder abuse and wrongful death.

However, the trial court judge later tossed out the elder abuse claim, finding that there had been insufficient factual grounds on which the jury could reasonably conclude that the facility and its staff were in violation of elder abuse laws. By dismissing these claims and the damages the jury had assigned to them, the judge effectively reduced the monetary award from $1.6 million to $350,000. The remaining funds were based on the jury’s finding of wrongful death, which was not vacated.

The trial judge dismissed the elder abuse claim on the basis that the nursing home’s conduct had been negligent but not reckless, the legal standard required under California’s Elder Abuse Act. This is in spite of the fact that Mr. Cohoon—whose difficulty swallowing was known by staff members—was served chicken twice on the same day, even after he choked the first time he was served the improper food. The plaintiff alleged that the nursing home was understaffed at the time and that proper staffing levels would have prevented Mr. Cohoon’s death.

On Friday, July 13, 2018, a three-judge appellate panel rejected this argument, upholding the trial court judge’s decision to toss the elder abuse claim. In its decision, the panel explained its conclusion that “[t]here is no evidence ... that inadequate staffing levels had led to previous safety issues. To the contrary, for the first 19 days of Cohoon's stay, he seemed to be receiving good care. ... The staffing had been adequate for his needs up to that point. There was nothing indicating that one or two additional staff members was clearly necessary for Cohoon's safety.”

That the panel would cite under three weeks of adequate care as evidence rebutting the fact that the improper actions of the nursing home’s staff directly led to Mr. Cohoon’s death illustrates the extent to which the law favors nursing home operators over the residents and their families who entrust those operators with their care.

This also represents another example of why it is essential to have knowledgeable, diligent legal representation on your side when seeking justice and compensation against powerful money interests. Nursing home operators have high-paid legal teams acting in their defense, as well as lobbyists in Sacramento and Washington nudging the law in their favor. This means that you need steadfast, experienced representation from lawyers with a proven track record of results, like those at TheLawFirm.com. Contact us today for a free legal consultation with an actual attorney!

Source:

Law 360

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• July 10, 2018

Nursing Home Neglect Lawsuit News: NY Times Documents Chronic Staffing Shortages at Nursing Homes

Though tragic in its truth, a new expose by The New York Times revealing chronic staffing shortages and other substandard conditions at nursing homes will come as no surprise to readers of TheLawFirm.com. The report published July 7, 2018 is based on an analysis of data obtained by Kaiser Health News, which showed a significant disparity between the unverified staffing levels self-reported by nursing home facilities and actual payroll data the companies have been required to share with Medicare under the 2010 Affordable Care Act.

Prior to implementation of the 2010 law often referred to popularly as “Obamacare”, the federal government relied on unverified self-reporting conducted by the nursing homes—which collectively receive tens of billions of dollars annually from Medicare for services rendered to Medicare recipients—to track staffing levels.

As the Times writes, “Most nursing homes had fewer nurses and caretaking staff than they had reported to the government for years, according to new federal data, bolstering the long-held suspicions of many families that staffing levels were often inadequate.”

Perhaps most appalling for nursing home residents and their families is the fact that the federal government relied upon this unverified, self-reported data in compiling its nursing home ratings. According to the Times, this made it possible for nursing homes to effectively “game the system”, earning themselves five-star government ratings based on data that has been shown to be problematic at best and outright fraudulent at worst.

“The payroll records provide the strongest evidence that over the last decade, the government’s five-star rating system for nursing homes often exaggerated staffing levels and rarely identified the periods of thin staffing that were common,” the Times reported.

Almost one-and-a-half million individuals in the United States are residents of skilled nursing facilities, and this number will only increase as members of the Baby Boomer Generation continue to retire in growing numbers.

If you or a loved one has suffered harm as a result of substandard care at a nursing home, contact the experienced team of attorneys at TheLawFirm.com today for a free legal consultation! The law places strict time limits on your ability to file a claim, so don’t delay!

Source:

Law 360

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• July 3, 2018

Nursing Home Lawsuit News: PA Supreme Court Denies Appeal, Paves Way for Re-Trial in Nursing Home Death

On June 26, 2018, the Pennsylvania state supreme court denied a nursing home operator’s request for appeal, effectively letting stand an August 2017 appellate panel ruling that called for a new trial over the death of a nursing home resident. Highland Park Care Center and its parent company Grane Healthcare Inc. have been accused of providing substandard care that allegedly led plaintiff Richard Scampone’s mother to develop a urinary tract infection and subsequently suffer a fatal heart attack.

Scampone’s original lawsuit dates all the way back to 2005, when he filed suit in Alleghany County Court of Common Pleas claiming that a staffing shortage at the facility had contributed to his mother’s death. However, as the initial trial neared its conclusion some two years later, the judge threw out all of the plaintiff’s claims relating to parent Grane Healthcare and did not allow the jury to impose punitive damages against Highland Park.

Despite these dismissals, a jury still ultimately found in favor of Scampone on the remaining claims, concluding that Highland Park was directly and vicariously liable. As part of its verdict, the jury ordered Highland Park to pay $193,500.

On appeal, in 2010, a court ruled that the trial judge had erred in dismissing the claims against parent company Grane and for not allowing the jury to award punitive damages. The subsequent retrial also ended with the judge granted a nonsuit in favor of the defendant companies, but, on appeal, that trial judge’s ruling also was overturned in August 2017 based on a finding that Grane owed a common-law duty to the plaintiff.

Grane had appealed that decision to the Pennsylvania supreme court, but with the court’s denial of Grane’s request, the case is set to begin a new trial in accordance with the most recent appellate ruling.

This situation shows once again the legal hoops that nursing home defendants will make plaintiffs jump through to receive justice, rather than simply putting that money and energy toward providing safe, quality care for their residents. That’s why you need a team of smart, dogged attorneys fighting for you! If you or a loved one is ever injured by a negligent nursing home, contact the experienced team of attorneys at TheLawFirm.com today for a free consultation!

Source:

Law 360

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• July 3, 2018

Nursing Home Lawsuit News: PA Appellate Panel Sends Nursing Home Negligence Claim Back to Trial Court

Finding that a lower court had abused its discretion by not determining from the outset whether a case belonged in arbitration, a Pennsylvania appellate panel on Thursday, June 29, 2018 ordered a case back to the trial court to make just that determination. The case involves a claim of negligence against a nursing home operator in the death of a resident.

“We agree with appellants that the trial court’s failure to determine whether the dispute was arbitrable at the preliminary objection stage was an abuse of discretion,” wrote the panel, according to Law360. “Because the trial court erred in failing to determine at the outset whether a valid agreement to arbitrate exists, questions of law and fact remain outstanding and unaddressed by the trial court.”

At the trial court level, St. John Neumann Nursing home, its owners, and operators had made preliminary objections and petitioned the court to compel arbitration based on a binding arbitration agreement. However, without explanation, the trial court overruled the defendants’ objections.

According to the defendants, Brenda Davis, who now serves as the administrator of the estate of decedent Ruth Roberts, previously had signed on Roberts’ behalf an arbitration agreement that called for submitting all medical malpractice and personal injury claims seeking more than $8,000 in damages to binding arbitration.

The case is yet another example of the widespread use of arbitration agreements in nursing home contracts. Residents and their caretakers are given enormous volumes of paperwork to review and sign at the time of admission into a nursing home facility. Oftentimes, arbitration agreements are just one page of many, and residents or their caretakers may not understand that they are not required to sign the agreement.

Arbitration agreements have gained in popularity across industries in recent years, as they are seen by companies to be an effective means of controlling litigation costs. Courts too have often favored arbitration as an alternative to further taxing already strained judicial resources, but there has been of late an increasing understanding that arbitration frequently favors large, powerful companies to the detriment of plaintiffs.

If you or a loved one is ever harmed by a negligent nursing home, contact the experienced team of attorneys at TheLawFirm.com now for a free consultation!

Source:

Law 360

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• June 25, 2018

Nursing Home Lawsuit News: Fla Appeals Court Upholds License Suspension Following Post-Hurricane Deaths at Facility

In the aftermath of Hurricane Irma, the air conditioning units at the Rehabilitation Center at Hollywood Hills failed. Residents who had made it through the vicious storm survived only to face stifling heat within the very facility that was intended to shelter them. As the hours passed, the staff made no effort to call 911 or otherwise contact emergency assistance. Perhaps most alarming, a fully operational hospital was located directly across the street.

Before the ordeal had ended, 12 residents of the nursing home had died, their internal core temperatures soaring beyond safe levels for extended periods of time. Four patients who passed away soon after arriving at a hospital were measured to have internal temperatures ranging from 107 to 110 degrees Fahrenheit.

In a victory for accountability too seldom seen in the nursing home industry, a Florida state court of appeals upheld on June 20, 2018 a lower court’s suspension of the nursing home’s operating license, having found the allegations “more than sufficient” to support the punishment.

“The order [of license suspension] did not merely allege a single lapse in judgment, but instead a failure to act towards multiple patients over the course of many hours, which lead AHCA to conclude the staff did not known to call 911 in an emergency,” the appellate panel wrote somewhat alarmingly, referring to the Agency for Health Care Administration (AHCA), the state body that had issued a report on the incident. “Thus, this order contained sufficiently detailed allegations of an immediate serious danger that was likely to continue without the suspension, which could not have been more narrowly tailored.”

If you or a loved one has suffered harm at the hands of a negligent nursing home operator, contact the experienced team of attorneys at TheLawFirm.com today for a free legal consultation!

Source:

Law 360

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• June 20, 2018

Nursing Home Lawsuit News: KY Appeals Court Overturns $18 Million Nursing Home Negligence Verdict

Agreeing with a lower court judge who had deemed a new trial necessary due to a subsequent ruling by the state’s supreme court, a Kentucky court of appeals on June 15, 2018 overturned an $18 million jury verdict in favor of the daughter of a woman who died while a resident at the Terrace Nursing and Rehabilitation Facility.

In a complex trial that lasted a full week, Patty Jennings—daughter of the deceased Eliza Jennings and administrator for her estate—had alleged that Terrace provided her mother with negligent medical care, which the surviving Jennings claimed played a role in her mother’s death. In addition, the decedent’s estate brought claims under Kentucky’s Residents Rights Act.

After the trial, a jury found in favor of the plaintiff, ordering Terrace to pay $8.5 million in compensatory damages and $9.5 million in punitive damages. However, as the trial-court judge considered the defense’s request for a mistrial, the Kentucky Supreme Court handed down a landmark decision in which it interpreted the Residents Rights Act to permit claims only by plaintiffs who were still living at the time of the suit.

With the supreme court ruling having essentially reversed the Residents Rights Act component of the Jennings’ claim, the judge ruled—against the plaintiff’s objections—that a new trial would be required. While Jennings had requested that the judge merely eliminate the Residents Rights Act components from the jury’s award, the judge agreed with the defendant nursing home that evidence presented at trial in relation to the Residents Rights Act claims had prejudiced the jury as to the negligence claims. On Friday, the appellate court agreed, paving the way for a new trial.

The case represents just one example of the fallout of the Kentucky Supreme Court’s 2015 decision in Overstreet v. Kindred Nursing Centers, which will severely curtail the strength of the Residents Rights Act in protecting nursing home residents.

If you or a loved one has suffered harm as a result of an unscrupulous nursing home operator, contact the experienced team of attorneys at TheLawFirm.com today for a free consultation with an actual attorney!

Source:

Law 360

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• June 4, 2018

Nursing Home Lawsuit News: PA Appeals Court Rules Nursing Home Must Face Negligence Charges In Court, Not Arbitration

In another instance of plaintiffs successfully challenging arbitration agreements imposed by nursing homes on their residents, a Pennsylvania court of appeals ruled May 30, 2018 that a nursing home facility must face negligence claims in court, after finding that an arbitration agreement signed by a wife on behalf of her husband was not legally binding on the husband.

Having residents and residents’ families sign arbitration agreements that essentially give away their rights to sue in court before a jury of peers is common practice for many nursing home operators. Arbitration—which critics often claim favors the powerful, moneyed interest—often results in smaller monetary awards for plaintiffs and less publicity, if not outright confidentiality, over cases and settlements.

Nursing home operators often slip these important agreements into thick stacks of documents that patients and/or their caretakers must fill out and sign prior to admission, and many plaintiffs complain later that they did not fully understand what they were agreeing to or that they may not have been legally required to sign the agreement at all.

In the instant case, wife Elizabeth Gross signed an arbitration agreement purportedly on behalf of her husband, who was to become a resident at the facility. However, it is not clear that Gross had any legal authority to sign this document on behalf of her husband—who later passed away as a result of alleged negligence on the part of the nursing home—although such is a common practice at some nursing homes.

In its decision, the three-judge appellate panel wrote, “The gist of the [nursing home] facility’s argument is that because decedent could not sign the admission agreement, ‘clearly someone—his wife—had the authority to execute this contract on his behalf. The facility’s bald statement has no basis in law. Agency is not assumed because one person does an act for another.”

According to the panel, the matter is well-settled under Pennsylvania law that a husband or wife does not automatically have legal authority to execute agreements on the other’s behalf simply due to marital status. The situation holds even when one of the spouses is legally incapacitated.

The ruling marks another instance of courts bringing into question the validity of these arbitration agreements, which is a welcoming development for plaintiffs and plaintiffs’ advocates across the country.

If you or a loved one has been injured by the negligent actions of a nursing home operator, contact the experienced team of attorneys at TheLawFirm.com today for a free legal consultation!

Source:

Law 360

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• May 21, 2018

Nursing Home Lawsuit News: FLA Supreme Court Ruling Will Lower Hurdles For Plaintiffs Suing Nursing Homes

On April 26, the Florida Supreme Court ruled unanimously that a case brought against a residential treatment facility could proceed on pure negligence grounds, rejecting arguments that the lawsuit should be classified as medical malpractice, which would render it subject to numerous additional legal requirements under Florida law. In affirming a decision by the Fifth Circuit Court of Appeals, the Florida Supreme Court found that the actions of the facility’s staff did not involve medical judgement or the treatment of a medical condition and therefore involved ordinary negligence rather than medical malpractice.

The case involved Cinnette Perry, a minor patient at The National Deaf Academy LLC, who had her leg amputated after suffering injuries when staff members forcibly restrained her after she was caught throwing rocks at one of the facility’s buildings. While the high court decision represents a victory for Cinnette and her family as they seek to bring those accountable to justice, according to outside observers, it could also be a win for injured nursing home residents as well.

As Y. Peter King wrote for Law360 in a piece dated May 17, “The Florida Supreme Court’s recent ruling that a residential treatment facility can’t categorize a suit over a patient’s injuries as a medical malpractice case will make it easier for personal injury plaintiffs to pursue general negligence claims against health care providers, experts said, since they won’t be subject to ‘onerous’ medical malpractice law requirements.”

These personal injury plaintiffs potentially include nursing homes residents who may have suffered an injury at the hands of nursing-home staff but in an action that does not constitute a medical act.

Among the crucial differences between an ordinary negligence claim and a medical malpractice claim is the length of time the law allows a plaintiff to bring his or her claim. Florida state law has a four-year statute of limitations for negligence claims but that number drops to just two years for medical malpractice.

Other pretrial requirements of medical malpractice claims have had a cooling effect on the bringing of non-medical claims against health care providers such as nursing homes, according to attorneys quoted by Law360. For example, even for a simple slip-and-fall case that just happened to take place at a doctor’s office, attorneys often would go through the pretrial requirements for a medical malpractice claim for fear of having the case tossed by the judge at a later date if they failed to do so. The costs of these pretrial requirements—which includes the hiring of expert witnesses and gathering of hundreds if not thousands of unsworn statements—can quickly reach into the thousands of dollars, a prohibitive costs for many plaintiffs and plaintiffs’ attorneys, many of whom work on a contingency basis.

That this issue was appealed to both the Fifth Circuit Court of Appeals and the Florida Supreme Court serves as yet another example of how profit-driven residential care facility operators would rather pump millions of dollars into expensive, seemingly endless litigation rather than simply improve their standards of care. If you or a loved one should ever be injured by an unscrupulous nursing home, it’s essential to have an experienced, knowledgeable, diligent attorney on your side, too. Remember TheLawFirm.com when the unimaginable happens.

Source:

Law 360

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• May 16, 2018

Nursing Home Neglect News: Nursing Home Charged In Death Of HR McMaster’s Father

In a sign that not even the powerful and well-connected are immune from the tragic epidemic of substandard care at nursing homes across the United States, criminal charges have been brought against a 30-year-old nurse in the death of Herbert McMaster, Sr., father of former Trump Administration National Security Advisor and three-star United States Army general H.R. McMaster.

The filing documents outlines a horrific scenario in which 84-year-old McMaster, Sr., having suffered a serious fall that caused him life-threatening injuries—including a blow to the head—was left overnight to die in a waiting room for the very facility being paid to provide for his care.

The situation highlights that substandard care be found across the broad spectrum of nursing-home facilities, which range from the bare bones to the exorbitantly luxurious. Attorney General for the Commonwealth of Pennsylvania Josh Shapiro used the opportunity to claim that authorities take such situations seriously, though one must wonder how many similar cases with victims of a lower profile go unpunished.

“When a family selects a senior living facility, they do not expect their loved one to be found dead in the lobby of a place that was supposed to be caring for him,” said Shapiro, according to Law360. “This nurse ignored her job responsibilities, falsified paperwork, lied to her supervisors and neglected Mr. McMaster, who died.”

Prosecutors allege that video-surveillance footage contradicts the records and statements of nurse Christann Gainey, who was in charge of the ward in which McMaster, Sr., was receiving care. He passed away just days after being admitted into the Presbyterian Senior Living Facility in Philadelphia.

Choosing a nursing home for a loved one is one of the most difficult choices a family can be forced to make, particularly with so many unscrupulous nursing-home operators putting profit about care. Should you or a loved one fall victim to substandard care at a nursing home, contact the experienced team of attorneys at TheLawFirm.com for a free consultation about your legal rights. It is vital to have a knowledgeable, dedicated attorney on your side through every step of the process, so contact us today!

Source:

Law 360

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• May 2, 2018

Nursing Home Lawsuit News: Washington Sate Appeals Court Nixes New Trial in Nursing Home Wrongful Death Lawsuit

In a victory for a nursing home accused of wrongful death by the estate of a deceased resident, a Washington state appellate panel announced on April 30 its reversal of a lower court decision that had called for a new trial in the case. Among other factors, the court of appeals based its decision on a finding that the trial court did not have access to the full transcript of the original 35-day trial in determining that a new trial was warranted, resulting in numerous errors.

The case arises out of the death of Saundra Sharp, who died of sepsis while a resident at Life Care Center of Port Townsend. Her estate sued the nursing home as well as parent company Life Care Centers of America Inc. and owners Cascade Medical Investors, alleging wrongful death. After a lengthy and complex original trial, the jury returned a verdict for the defense, but the court later would grant the plaintiff a new trial based on reasoning the appellate panel ultimately would find erroneous.

For example, the appellate decision questions the lower court’s determination that a defense discovery violation—which the appeals court characterized as merely an instance of a witness not being entirely prepared—was so prejudicial as to justify tossing out the jury’s final verdict. In its decision, the appellate panel wrote, “We are mindful of the great deference to a trial court in finding prejudice and granting a new trial. But the trial court’s general conclusions about orderly preparation for trial do not establish adequate prejudice warranting a new trial based on this single discovery issue.”

According to the US National Library of Medicine, sepsis is a serious condition that occurs when the body experiences “an overwhelming immune response to a bacterial infection.” When the body releases certain chemicals into the bloodstream to fight off the infection, it causes widespread inflammation, resulting in leaky blood vessels and increased blood clots, which in turn “deprives your body’s organs of nutrients and oxygen.” In severe cases, organ failure can result.

Source:

Law 360

National Institutes of Health (NIH) – US National Library of Medicine “Sepsis”

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• April 28, 2018

Nursing Home Lawsuit News: Louisiana Appeals Court Reverses Dismissal of Nursing Home Slip And Fall Claim

On April 25, a state appellate court in Louisiana reversed a lower court decision granting summary judgment to the defendant nursing home in a slip-and-fall case. In its decision, which sent the case back to the lower court for further proceedings, the court of appeals found that questions remained about facts central to the plaintiff’s case, such as whether nursing-home staff adhered to proper protocol.

The case stems from an incident involving not a nursing home resident, but a visitor. Patricia Bell was visiting her father-in-law, John Bell, at Evangeline Oaks nursing home, preparing him a homecooked dinner she had brought for him, when she allegedly stepped in a puddle of water on the floor, slipped, and fell, suffering serious injuries. The plaintiff subsequently noted multiple other puddles of water on the floor in her immediate surroundings.

In its defense, the nursing home has argued that available evidence demonstrates its staff’s compliance with existing policies and procedures, including its spill-cleanup and housekeeping policies.

In its decision, however, the appellate court presented examples of policies with which the staff may not have been in compliance, over which disputes of fact exist. For instance, a nurse has testified that she checked on Mr. Bell, the resident, once every two hours—as required in the nursing home’s policies and procedures—but the nursing home has been able to provide no documentary evidence supporting the nurse’s claim that she did actually check in on Mr. Bell at those intervals at or around the time of the incident. Such questions of fact, the appellate panel noted, are the sort to be decided by a jury following a trial.

The Louisiana appellate court decision marks the second time this case has been remanded back to the trial court. In the first instance, the appellate panel reversed the trial court’s decision to allow a directed verdict, finding fault in, among other things, the trial court judge’s applying the wrong burden of proof on the plaintiff.

The case represents yet another example of the many problems that can arise when nursing homes are run on the cheap by profit-seeking companies, posing risks not only to residents but to their guests as well. If you or a loved one has been injured as a result of substandard care on the part of a nursing home, contact the experienced team of attorneys at TheLawFirm.com today for a free legal consultation!

Source:

Law 360

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• April 4, 2018

Nursing Home Lawsuit: PA Court Rules Nursing Home Can't Force Arbitration On Negligence Claim

In another example of a growing trend taking place in courts nationwide, a Pennsylvania appellate panel has affirmed a lower court’s ruling that a nursing home operator cannot force a woman’s negligence claim into binding arbitration. The court determined that the woman’s daughter had been acting outside the scope of her authorization when she purportedly executed the arbitration agreement on her mother’s behalf.

Plaintiff Elsie Clementson brought a claim of negligence against Evangelical Manor nursing home after suffering a fall that resulted in a broken tibia. The nursing home moved to have the case removed to arbitration based on a so-called Responsible Person Agreement (RPA) signed by Clementson’s daughter, Joanne Reilly.

However, in affirming a lower court’s 2016 ruling, the Pennsylvania appellate panel found that the RPA bound Reilly personally, not Clementson. In its decision, the panel stated that the nursing home had failed to provide any evidence that Clementson was aware either that her daughter had signed the RPA or that the arbitration clause contained therein even existed.

In pertinent part, the panel wrote, “In sum, we find no error in the trial court’s finding that there was no agency, and hence, no binding agreement to arbitrate. The RPA was an agreement between the facility and Ms. Reilly personally; she did not execute it pursuant to any authority conferred upon her by her mother.”

The trend of courts finding RPAs and other arbitration agreements nonbinding on nursing home residents where those agreements have been signed by family members without the knowledge and authorization of the resident is a significant one because for years nursing home operators have been using arbitration agreements to keep cases of nursing home negligence out of the public court system, where there would be greater attendant publicity and where a jury of citizens—rather than a single paid arbitrator—would decide the verdict and damages.

If you or a loved one has suffered harm while a nursing home resident, the experienced team of attorneys at TheLawFirm.com are standing by now for a free consultation.

Source:

Law 360

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• March 28, 2018

Nursing Home Lawsuit: Ohio Appellate Court Upholds $1.1 Million Negligence Award

On Friday, March 23, an appellate panel in Ohio upheld a $1.1 million judgment against a nursing home and nursing home operator, who had been accused of negligence and malpractice in the death of resident Donald Lee Howard. In its decision, the panel also reversed a lower court ruling that had dismissed the survivorship claims of the resident’s son, remanding them for further proceedings.

In reaching its conclusions, the panel disagreed with the lower court’s reasoning that certain of the plaintiff’s claims qualified as medical in nature and that therefore the statute of limitations on those claims had passed. The appellate panel found, to the contrary, that the defendant companies—HCR ManorCare Inc., HCR ManorCare Services LLC, Heartland Employment Services LLC, and Heartland of Springfield LLC—are in the business either of operating nursing homes or of providing custodial care to the elderly, operations that do not provide a sufficient basis for the plaintiff’s claims to be qualified as “medical”. Since under Ohio law non-medical claims have can be brought for a longer time period than medical claims, the appellate court ruled, the plaintiff’s survivorship claims were not barred under the statute of limitations.

The appellate panel also rejected the nursing home companies’ contention that the lower court jury had been improperly prejudiced by statements made by plaintiff’s counsel to the effect that the defendant companies had “killed” the deceased resident. The panel ruled that defendants had not properly contested the statement at the time and had not proposed to the court any jury instructions aimed at remedying the alleged prejudice, pointing out that a court does not have an affirmative duty to issue corrective jury instructions where such has not been requested by one of the parties.

“Courts are not required to give limiting instructions unless they are requested to do so,” wrote the panel, according to Law360.

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