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Class Action Lawsuit Alleges that North Carolina Nursing Home Hurt Residents via Understaffing, Other Cost-Cutting Measures

November 18, 2022
Author: Daniel Gala

Litigation over allegations that a private-equity-owned nursing home in North Carolina harmed its residents by consistently understaffing its facility and failing to provide the necessary levels of medicine and other supplies continues to make its way through North Carolina federal court, albeit at a slower pace that the presiding judge would like.  

“I assume the plaintiffs are elderly and infirm,” United States District Judge Thomas D. Schroeder said at a November 10 hearing, according to NC Health News. “It would be nice to resolve this [litigation] sooner rather than later for the benefit of the parties.”  

Judge Schroeder urged the sides to strongly consider entering mediation to discuss a potential settlement rather than waiting to go to trial. A trial in the class action lawsuit has been scheduled for June 1, 2023.  

The Lawsuit  

Originally filed in May 2021, the class action complaint alleges that the Citadel Salisbury nursing home and its private-equity owners harmed its residents by engaging in cost-cutting measures that resulted in inadequate standards of care.  

“This case involves severe systematic understaffing at the Citadel nursing home in Salisbury, NC,” says the class action complaint. “The understaffing is proven by hours data reported to the Centers for Medicare and Medicaid Services (‘CMS’) by the facility’s owners and required to be accurate, by testimony of the Plaintiffs and of staff, and by state investigator survey results.”  

Though the facility in question has been in operation since 1988, it only became known as the Citadel Salisbury on February 1, 2020, when new ownership was grandfathered in under the existing operator’s license. The new owner was New Jersey-based private-equity firm The Portopiccolo Group LLC, whose sole members are Simcha Hyman and Naftali Zanziper. Portopiccolo, Hyman, and Zanziper all are named as defendants in the class action lawsuit, along with several other Hyman-and-Zanziper-controlled entities.  

According to the complaint, “Portopiccolo has described itself as a ‘private equity’ company which acquires ‘distressed assets.’ The owners, Hyman and Zanziper, previously ran a business that sold cut-rate medical supplies, known as Ultra Care Medical Supply. After selling that business off to private equity, they decided to bring their cost-cutting model over to the nursing home business. However, nursing homes bring with them extra responsibilities as they involve people not products.” h  

The Citadel of Salisbury was far from the only nursing home that Portopiccolo purchased, with its chain growing from “none in 2016 to over 120” in May 2021, according to the suit.  

Nursing Homes: From Non-Profits to For-Profit Enterprises  

Portopiccolo has hardly been alone in seeking to extract as much profit as possible from nursing homes, often at the price of patient care. As the lawsuit explains, “In recent years, the universe of nursing homes has changed. In the past, nursing homes were often run by local charities and nonprofits. However, the industry has been overtaken by for-profit operators, with the result being that today, 70% or more of all nursing homes are operated by for-profit chains.”  

This transformation has come at a severe cost to nursing-home residents, severely impacting the level of care they receive. And the private-equity takeover has not been limited to nursing homes. As Kaiser Health News (KHN) reported November 14, “Private equity is rapidly moving to reshape health care in America, coming off a banner year in 2021, when the deep-pocketed firms plowed $206 billion into more than 1,400 health care acquisitions, according to industry tracker PitchBook.” Over the past decade, private-equity firms have invested roughly $1 trillion, acquiring roughly 8,000 health-care organizations.  

The result of the for-profit takeover has been rising prices and diminishing care, an analysis by KHN found.  

“Their model is to deliver short-term financial goals and in order to do that you have to cut corners,” an attorney who represents health-care industry whistleblowers told KHN.  

A large study published in JAMA in September compared 578 private-equity-owned physician’s practices against 2,874 non-private-equity practices and found that, on average, the PE-owned practices charged $71 more per medical claim (a 20.2% increase) and billed for 9.4% more office visits lasting greater than 30 minutes, for which practices can charge a premium.  

In the case of Portopiccolo and its recently acquired chain of scores of nursing homes, the class action lawsuit alleges that “[i]t has grown its enterprise by using reckless cost-cutting measures that have led to it owning facilities predominantly ranked as only one- or two-star by the official U.S. Government CMS Nursing Home Compare regulatory apparatus and its five-star rating system.”  

Further, given private equity’s penchant for using high-interest debt to help fund its acquisitions, it is unclear how much control private-equity owners even have over their own businesses. These highly leveraged purchases not only require exorbitant amounts of money merely to service the debt, the loan agreements sometimes give lenders significant control over operations themselves.  

“Portopiccolo is heavily leveraged and indebted to private equity lenders and either refuses to, or lacks the ability of its own accord to, increase staffing supplies to necessary levels,” the class action lawsuit alleges.  

The Claims  

The class action complaint includes five counts: breach of contract, unfair and deceptive trade practices, breach of fiduciary duty, negligent infliction of severe emotional distress, and a count arguing for the liability of the other Portopiccolo-controlled entities.  

“As a systemic manner and on a class-wide basis, the Citadel Salisbury Facility has been chronically understaffed during pertinent times, thereby breaching the express and implied terms of its resident contract,” the lawsuit says, adding later, “Plaintiffs did not receive what they were entitled to by way of performance of the contractual duties and obligations of the Defendant in return for their own contractual agreement, promises and commitments to the Defendant. The families did not get the benefit of their bargain. Rather, while the Citadel Salisbury was fully paid either by families directly or from assigned payors like Medicaid on the families’ behalf, the Facility did not provide the service or supplies and the level of staffing that it was obligated to supply the resident population.”  

As for the unfair and deceptive trade practices claim, the complaint alleges that Portopiccolo and the entities it controls “engaged in unfair and deceptive trade practices including by misrepresenting the availability of medications and supplies to the Plaintiffs; by fraudulently recording inaccurate resident chart entries; by promising to effective[ly] communicate to Plaintiffs and failing to do so on matters of importance to the Plaintiffs concerning their loved ones; by implementing a business model of deficient staffing, supplies, medications and foods at odds with their public pronouncements and assurances, and by other modalities as the evidence may show.”  

Count three alleges a breach of fiduciary duty based on Citadel of Salisbury’s understaffing and its failure to provide adequate medications and other supplies. The fourth count, negligent inflection of emotional distress, claims that the defendants caused emotional distress not only to the nursing home residents, but to their family members, as well, who “are entitled to recover for severe emotional distress due to their reasonable concerns for another person, to wit, for each of their resident loved ones at the Citadel.”  

The fifth count highlights the complex web of interacting entities that the Portopiccolo owners Hyman and Zanziper created in order to conceal their self-dealing and insulate themselves from liability. According the lawsuit, the two managers divided their burgeoning nursing-home empire into no less than five separate entities, each of which controlled a different aspect of the operations. One entity—Salisbury Two NC Propco LLC—was established to own the real estate used by the nursing home. Another LLC—The Citadel Salisbury LLC—would hold the operating license and pay rent to Salisbury Two Propco for use of the facilities. Accordius Health LLC, yet another entity onwed by Hyman and Zanziper, was created to provide management services for Portopiccolo-controlled nursing homes. The pair even went so far as to create their own nursing-home staffing agency—Daisy Staffing LLC—which provided the facilities’ workers. On top of it all sat Portopiccolo, an entity controlled exclusively by Hyman and Zanziper.  

Conclusion  

The plaintiffs in the Citadel Salisbury case have filed a putative class action complaint in the hopes that many other residents of Portopiccolo-controlled nursing homes will join the suit and seek their own justice. With the highly leveraged private equity firm controlling more than 100 nursing homes, potentially thousands of residents have been negatively impacted by their profit-seeking behavior. More concerning still, Portopiccolo is representative of an ongoing trend afflicting not only the nursing home sector but the healthcare industry more broadly: that of private-equity firms seeking to purchase and extract profits from organizations that provide vital, life-saving services to patients and residents, resulting in diminished care and increased prices. The plaintiffs in the Citadel Salisbury case and countless other lawsuits are seeking to use the legal system to hold these private-equity firms accountable for their actions and the harm they have caused.    

If you or a loved one has been injured at a nursing home, contact TheLawFirm.com for a free legal consultation!    

Sources:  

Goldsmith, Thomas and Rachel Crumpler. (15 November 2022). Lawsuit charging private-equity owned nursing home harmed residents crawls forward. NC Health News.  

United States District Court Middle District of North Carolina. (17 May 2021). Complaint – Class Action. Sonya Hooker, Sybil Rummage, Donna Deal, Kenneth Michael Deal, and Betty Deal, individually and on behalf of a class of those similarly situation, Plaintiffs, v. The Citadel Salisbury LLC, Salisbury Two NC PropCo, LLC, Accordius Health LLC, The Portopiccolo Group, LLC, Simcha Hyman and Naftali Zanziper, Defendants.  

Schulte, Fred. (14 November 2022). Sick Profit: Investigating Private Equity’s Stealthy Takeover of Health Care Across Cities and Specialties. Kaiser Health News.  

Singh, Yashaswini et al. (2 September 2022). Association of Private Equity Acquisition of Physician Practices With Changes in Health Care Spending and Utilization. JAMA Health Forum.

US Supreme Court to Hear Case on Ability of Nursing Home Residents to Sue for Rights Violations

October 24, 2022
Author: Daniel Gala

On November 8, the United States Supreme Court will hear oral arguments in a landmark case that will decide whether or not individuals have the right to sue Medicaid-funded, state-run nursing homes over alleged violations of their federal rights. Whatever the outcome, the ruling likely will have ramifications that extend far beyond Medicaid and nursing homes.  

With so much on the line, the Health & Hospital Corp. (HHC) of Marion County, Indiana, which appealed the case to the Supreme Court, is under tremendous pressure from advocacy groups, politicians, and the public at large to withdraw its petition. However, the agency appears to have no intention of doing so.  

The case at issue is that of Gorgi Talevski, who was receiving care for dementia at an HHC nursing home in Valparaiso, Indiana. Talevski has since passed away, and his wife, Ivanka filed a lawsuit against HHC on behalf of Gorgi's estate. She alleges that, rather than treat her husband's dementia, the staff at the HHC nursing home instead overmedicated and chemically restrained him.  

At one point during his care, Gorgi was transferred to a different nursing facility, a move that Ivanka claims was illegal and a violation of Gorgi's rights as delineated in the Federal Nursing Home Reform Act, which is part of the vast body of law that governs Medicaid.  

In all, HHC operates 78 nursing facilities in Indiana, making it the largest operator in the state, according to the Iowa Capital Dispatch. A local government agency, HHC also operates the Sidney & Lois Eskenazi Hospital in Indianapolis and the Marion County Health Department.  

After Ivanka Talevski sued on her husband's behalf, HHC responded by not only denying any responsibility whatsoever for Gorgi Talevski's death but also challenging Ivanka's right to sue the agency in the first place. It is this issue that has made its way all the way to the Supreme Court.  

Section 1983 and the Ability to Sue over Rights Denied  

Ivanka Talevski alleges that Gorgi's rights under federal Medicaid law have been violated by HHC, which is an agency of the Marion County, Indiana government. She brought her suit under 42 U.S. Code Section 1983, which gives individuals the right to sue in federal court any person who deprives the plaintiff of his or her federal rights, even if the person is acting "under color of" state or local law.   

In response, HHC has said that individuals do not have a right to sue Medicaid-funded, state-operated nursing homes over alleged federal rights violations because Medicaid is essentially a contractual relationship between the states and the federal government. In its petition to the Supreme Court, HHC pushes its argument even further, saying this reasoning should apply not only to federal Medicaid law but to all so-called "Spending Clause statutes".  

"[Since 1990], this Court has consistently rebuffed efforts to find privately enforceable rights in Spending Clause statutes," HHC's petition states. "Indeed, several Justices have suggested that the entire project of enforcing such rights under 42 U.S.C. 1983 is mistaken: Spending Clause statutes are 'much in the nature of a contract.'" [Italics in original.]  

Therefore, HHC's argument goes, if Spending Clause statutes are merely contracts between the federal government and the recipients of the funds, the millions of individuals actually impacted by the programs (and the reason why the programs exist in the first place) have no standing to sue, even over rights explicitly granted to them by the statute in question.   

This reasoning is strongly opposed by a number of parties, including members of Congress, who filed a detailed amicus brief rejecting HHC's argument.  

"Congress has long passed legislation pursuant to its Spending Clause powers that permits private suits brought under 42 U.S.C. 1983 ('Section 1983') to remedy violations of such statutes," the brief states. "This Court should reject efforts to alter its established, uniform precedent."   

Through their brief, the members of Congress assert strongly that Section 1983 applies both to the Medicaid laws in question in the Talevski case and to Spending Clause statutes more broadly. They give two primary reasons why the Supreme Court should avoid reversing course now.  

"First, for decades, Congress has legislated against the backdrop that express rights derived from federal spending statutes may be enforced through Section 1983," the brief says. "The Federal Nursing Home Reform Act ('FNHRA') is one such piece of legislation. The text, the legislative history, and origins of FNHRA show that Congress intended to permit individuals to seek remedies for violations of FNHRA's '[r]equirements relating to residents' rights' under Section 1983. Alteration of this precedent would undermine the text and purpose of FNHRA."  

Secondly, the members of Congress warn that "curtailing Congress' ability to permit private enforcement of Spending Clause legislation and the programs established by that legislation...would have disastrous consequences."  

The brief continues:  

"Congress allocates billions of dollars each year in federal funds to assist the states in providing services for the nation's most vulnerable individuals. Neither federal nor state authorities have sufficient resources to provide complete oversight over the funding funneled into state programs. Instead, their attention must often be dedicated to remedying systemic abuses, while preserving the option for aggrieved persons to seek individual remedies in federal court."  

Public Outcry  

Advocates for people experiencing poverty, people with disabilities, and the elderly have been trying to raise public awareness about the Talevski case, working to increase the pressure on HHC to withdraw the case from the Supreme Court before it could become a highly damaging precedent.  

According to the Indianapolis Star, "In recent weeks, elected officials with oversight responsibility for Health & Hospital [HHC] have joined the chorus" of people urging the agency to reverse course, "including Indianapolis Mayor Joe Hogsett and a majority of the Indianapolis City-County Council."   

"Quite frankly, I am embarassed that the city and the state that I love, and the hospital corporation that I have supported, is at the forefront of this lawsuit," said Indiana State Representative Cherrish Pryor, who represents a district in Marion County.  

HHC also has faced pressure from the Indiana Black Legislative Caucus, whose chair, State Rep. Robin Shackleford, said the group had sent a letter to HHC requesting that it end its appeal to the Supreme Court.  

"With the overturning of Roe v. Wade, this Supreme Court is eager to take away more rights," Rep. Shackleford said, according to the Indianapolis Star. "They don't need encouragement from our public hospital in Indianapolis."  

Despite the pressure, HHC appears to be remaining steadfast in its approach. The issue was not even discussed at an HHC board meeting held October 18, despite the presence of dozens of protestors and advocates. The only time the Supreme Court case was raised was during the public comment period.  

"Shame on you," scolded Medicaid recipient Kim Saylor. "All of you."  

If you or a loved one has been harmed by a nursing home operator, contact TheLawFirm.com for a free legal consultation!   

Sources:  

Smith, Casey. (21 October 2022). Supreme Court case could halt civil rights lawsuits by nursing home patients. Iowa Capital Dispatch.  

Magdaleno, Johnny and Tony Cook. (18 October 2022). Despite outcry, Marion County agency doesn't pull case that's at Supreme Court. Indianapolis Star.  

42 U.S. Code Section 1983 - Civil action for deprivation of rights. Cornell Law School Legal Information Institute.  

United States Supreme Court. (23 November 2021). Petition for a writ of certiorari. Case No. 21-806. Health and Hospital Corporation of Marion County, et al., Petitioners v. Ivanka Talevski, Personal Representative of the Estate of Gorgi Talevski, Deceased.  

United States Supreme Court. (23 November 2021). Brief of Members of Congress as Amici Curiae in Support of the Respondent. Case No. 21-806. Health and Hospital Corporation of Marion County, et al., Petitioners v. Ivanka Talevski, Personal Representative of the Estate of Gorgi Talevski, Deceased.

Ill. Nursing Homes Residents File Class Action over Alleged Understaffing

October 17, 2022
Author: Daniel Gala

On September 27, eleven unnamed plaintiffs who all are residents of assisted-living facilities owned and operated by Alden Group filed a class-action lawsuit accusing the operator of placing profits over resident safety by systematically understaffing its facilities, even failing to meet minimum staffing levels required by law.  

“For many years Alden has engaged in an ongoing practice of profiting from systematically and knowingly understaffing the Alden Facilities, causing dangerous, distressing, and grossly unsanitary living conditions for thousands of residents,” the lawsuit, filed in Illinois state court, alleges.  

According to the lawsuit, Alden operates more than 50 different nursing facilities that collectively are responsible for providing care to thousands of residents, bringing in more than a quarter-billion dollars in revenue annually. Despite this largesse, the lawsuit accuses Alden of severely cutting corners to boost profits, to the detriment of residents who rely on Alden entirely for their care.  

“For many years leading up to and continuing through the coronavirus pandemic, Alden has systematically and knowingly failed to hire sufficient staff to responsibly care for its residents or even provide the bare minimum level of hours mandated by Illinois statutes,” the lawsuit says. “Alden endangers residents because it does not have enough staff to implement residents’ plans of care, to monitor residents’ conditions, to protect residents from injury, to give basic nutrition and personal care for residents, or even to provide safe and sanitary conditions.”  

The alleged shortcomings are staggering.  

“From 2018 through 2020, for example, Alden Facilities fell far short of the hours necessary to provide resident care [under Illinois state law]: Alden Facilities should have provided more than 1 million additional certified nursing assistant (‘CNA’) hours, and 300,000 more skilled nursing hours,” the lawsuit claims.  

Though directly harming thousands of the state’s most vulnerable residents, these shortcomings save each Alden facility millions of dollars annually.  

“For example, at Heather Healthcare in 2020, Alden provided less than 20% of the necessary hours of care from registered nurses and less than 50% of the necessary hours of care [from] CNAs to meet residents’ needs,” the suit says.  

The profit to Alden?  

“[U]nderstaffing at Heather Healthcare saves Alden approximately $2.2 million annually,” the lawsuit alleges.  

That same year, at Alden Town Manor, residents received about a third of the skilled care they were entitled to under the law, which the lawsuits says saved $3.3 million. Understaffing at Alden Terrace McHenry allegedly saves $1.8 million annually. Alden Lakeland saves $1.7 million by failing to provide residents with proper care. Alden Princeton pockets an additional $1.9 million every single year through illegal understaffing, the suit claims.  

All eleven plaintiffs are Medicaid beneficiaries who have been residing for multiple years at various Alden facilities in Cook County and McHenry County, Illinois. The plaintiffs range in age from 26 to 82, and the court-appointed guardian for each plaintiff is the Office of the State Guardian.  

The lawsuit argues that Alden has violated both the Illinois Nursing Home Care Act and the Illinois Consumer Fraud and Deceptive Practices Act and asks the court to certify the case as a class action. As remedies for Alden’s alleged wrongdoing, the plaintiffs request injunctive relief compelling Alden to rectify its unfair and unlawful practices as well as a court-appointed monitor to oversee its enforcement. The plaintiffs also seek monetary and punitive damages.  

If you or a loved one has been the victim of an unscrupulous nursing home operator, contact TheLawFirm.com for a free legal consultation!

Source:  

Cook County Circuit Court Chancery Division. (27 September 2022). Class Action Complaint for Injunctive and Declaratory Relief and Damages. Case No. 2022-CH-09574.

Family Sues Nursing Home that Served Woman Dishwashing Liquid Instead of Juice

October 6, 2022
Author: Daniel Gala

On the morning of August 27, the staff of Atria Hillsdale assisted living facility in San Mateo, California were supposed to provide residents with glasses of juice. Instead, three of them were served glasses of toxic dishwashing liquid.  

93-year-old Trudy Maxwell was among those given the industrial-strength cleaning solution. After suffering through two painful days, Maxwell passed away from the poisoning on August 29. Another resident also was killed.  

“We can confirm three of our residents were recently transported to the hospital after mistakenly being served dishwashing liquid as drinking juice,” a statement issued by Atria at the time said.  

Less than one month after Maxwell’s death, her family filed a lawsuit against Atria over her death, CBS Bay Area reported September 29.   

“Two excruciating days after the poisoning, Mrs. Maxwell died,” said an attorney representing the family, per CBS Bay Area. “Despite acknowledging the poisoning, Atria has yet to issue the family any apology. Instead, Atria has embarked on a disinformation campaign.”  

The family’s lawsuit alleges systemic problems at Atria facilities, pointing to a similar incident that took place at an Atria facility in Walnut Creek, California on the evening of August 23 during which a resident died after apparently having a “negative reaction” to something he ate.  

Atria has said that the employees involved in both incidents have been suspended pending internal investigations. San Mateo police are investigating the Atria Hillsdale dishwasher-liquid poisonings in conjunction with the California Department of Social Services Ombudsmen.    

“There’s no conceivable way that dishwashing liquid should make its way to a beverage glass,” said a second lawyer representing Maxwell’s family. “That’s a violation of every basic principle of nursing home care. The most basic principle is you’re there to protect the safety and well-being of the patient.”  

If you or a loved one has been seriously injured because of a nursing home, contact TheLawFirm.com for a free legal consultation!  

Sources:  

CBS Bay Area. (29 August 2022). Poisoning with dishwashing soap at San Mateo care facility leaves 1 dead, 2 hospitalized.  

CBS Bay Area. (29 September 2022). San Mateo nursing home faces lawsuit after resident dies of poisoning.  

CBS Bay Area. (2 September 2022). Walnut Creek nursing home suspends employees after resident’s death.

Philly Long-Term Care Facility Sued over Death of Resident Found with Paper Jammed down Throat

October 3, 2022
Author: Daniel Gala

On January 26, 2022, 50-year-old Cheryl Yewdall was found face down on the floor at the Merakey Woodhaven long-term care facility. She was lying in a pool of her own urine, and she had a piece of paper roughly half a foot in length shoved down her windpipe. Though Cheryl was still alive when discovered, she tragically passed away five days later.  

Cheryl had been born three months premature, and she suffered from cerebral palsy and extreme cognitive challenges. She had called Woodhaven her home since she was a child.  

Despite a law-enforcement investigation into the suspicious nature of Cheryl’s death, no arrests have been made or charges filed. Now, Cheryl’s mother has taken matters into her own hands, filing a wrongful death lawsuit against Merakey Woodhaven, the Associated Press reported September 27.  

Cheryl’s mother, Christine Civatte, has described the lawsuit as a search for answers amidst a daunting number of questions.  

“I need to know everything that happened. Every single moment,” she said. “I need to find out who found her. I need to know who did this.”  

Civatte’s lawsuit describes how, in the last year of Cheryl’s life, her family observed a troubling pattern of mistreatment by the staff of Merakey Woodhaven. In January 2021, Cheryl fractured her leg, but the injury originally went undiagnosed. Even after an x-ray finally was performed and the fracture confirmed, Cheryl’s leg was not put in a cast or otherwise immobilized, as was medically necessary. When questioned later about why this was never done, the staff said they were not trained in how to do so.  

Then, in September 2021, Cheryl turned up with mysterious swelling around her eye and cheek, which Marakey Woodhaven staff blamed on Cheryl having suffered a fall.  

Along with her other conditions, Cheryl experienced echolalia, which manifested itself in her frequently repeating the words and phrases of others. In perhaps the most chilling incident of all, one day, when talking on the phone with her sister, Cheryl said, “Listen to me, a**hole. Settle down, baby. I’m going to kill you if you don’t settle down. I’m going to kill you, a**hole.”  

According to the lawsuit, the audio of this horrifying statement was recorded by Cheryl’s sister on her smartphone.  

Merakey Woodhaven is owned and operated by Merakey, which describes itself as “a not-for-profit developmental, behavioral health, and education provider” that offers services to “50,000+ people each year at nearly 700 locations,” according to its website.  

“Putting our heart and soul into exceptional care,” Marakey’s homepage boasts.  

The death of Cheryl Yewdall launched an investigation by Pennsylvania state regulators that unearthed other troubling violations and resulted in Marakey Woodhaven being temporarily shut down. However, as of September 6, the facility had been allowed to reopen, the AP reported.  

For its part, Melakey has denied responsibility for Cheryl’s death, calling it a “serious and tragic accident” and adding that Cheryl “was a valued member of the Merakey community, and we were honored to have had her in our care for more than 40 years.”  

However, an attorney representing Civatte argues that there is no way that a six-or-seven inch paper towel or cleaning wipe could possibly have gotten down Cheryl’s throat by mere accident.  

“No one with a gag reflex within normal limits could have put a cleaning wipe…into their trachea,” the lawyer said.  

In the lawsuit, the allegations go further, stating outright that “Cheryl Yewdall’s lack of any history of engaging in pica behavior indicates that a staff member at Merakey Woodhaven placed the cleaning wipe in Cheryl Yewdall’s trachea.” (Pica is a condition involving the compulsive eating of non-food items.)  

Despite her willingness to bring the fight to Merakey on her own, Civatte recognizes that what has been done cannot be undone and that, regardless of the outcome of her suit, nothing can bring back Cheryl.  

“[Cheryl] was just so sweet and innocent and helpless, and she depended on them to care for her and lover and be safe,” Civatte told the AP. “I just thought they would protect her.”    

Source:  

Rubinkam, Michael. (27 September 2022). Philly care home resident died with paper jammed in windpipe, lawsuit alleges. Associated Press.

Nursing Home Operator Behind Hurricane Deaths Reportedly Reaches Class-Action Settlement

July 19, 2022
Author: Daniel Gala

A now-notorious Louisiana nursing home operator who moved residents to a warehouse with deplorable, unsafe conditions during Hurricane Ida, resulting in multiple deaths, has reached a settlement agreement in class-action litigation filed by former residents and the families of the deceased, the Houma, Louisiana Courier reported July 18.    

“We looked at the best thing for our clients,” said an attorney for the nursing home residents and families. “That would be to go forward with the settlement.”    

According to attorneys for the plaintiffs, they learned during the pretrial discovery process that the defendant nursing homes and their owner had no assets with which to pay a large settlement. Despite a case that potentially could reach billions of dollars in damages, it became clear that the only source of payment would be the defendants’ insurance policies, which capped the potential payout at $13 to $15 million. This amounts to roughly $15,000 to $17,000 in settlement money for each evacuee or their next of kin.    

The cases arose from the August 2021 evacuation of some 850 nursing home residents prior to Hurricane Ida. Hailing from seven different facilities, the hundreds of residents were crammed into a single warehouse ill-suited to provide for their needs. In all, seven residents died during the evacuation.    

The conditions at the warehouse were so bad that multiple residents called 911 seeking emergency assistance. On August 28, 2021, 66-year-old Debbie Strickland called 911 from the Independence, Louisiana warehouse to report herself as having been kidnapped.    

“They lied and said we were going to a real nursing home,” said Strickland said, according to the Lafayette Daily Advertiser “We ended up in a warehouse instead.”    

“They refused to help me,” Strickland said of the staff on hand. “They were barely feeding me. They put a diaper on me and they just changed me whenever, they didn’t care how I went to the bathroom. They would just come to the cot when they were in the mood to change me.”    

Some of the nursing home staff have echoed the residents’ sentiments about the appalling conditions.    

“I’m thinking to myself, what happened?” Janice Verdin, a former caregiver at South Lafourche Nursing Home, told the Houma, Louisiana Courier. “I kept thinking to myself about the hundreds of residents on the floor and what we would have done if the place had flooded. There was no way we could have saved them. That’s my biggest fear.”    

Ultimately, the Louisiana Department of Health had to evacuate the residents from the failed evacuation site.    

The man behind the botched operation is Baton Rouge businessman Bob Dean, Jr., former owner-operator of all seven south Louisiana nursing homes that were evacuated to the single, ill-equipped warehouse.    

All of Dean’s facilities have since been shut down by the Louisiana Department of Health, and Dean himself faces felony criminal charges over the tragic ordeal.    

On June 23, WWL-TV reported that Dean had turned himself in at Tangipahoa Parish jail after a warrant was issued for his arrest based on 15 felony charges, including eight counts of cruelty to persons with infirmities, five counts of Medicaid fraud, and two counts of obstruction of justice. Dean later was released on $350,000 bail.    

“I was surprised,” Dean’s lawyer said at the time about the filing of criminal charges against his client. “I still maintain that nothing Mr. Dean did rises to the level of criminal action, but obviously they feel differently.”    

Survivors of Dean’s deadly evacuation and their loved ones voiced their support for the criminal charges.      

“He’s getting his due, finally. Finally somebody’s getting him,” said Mickey Ryan, whose brother Michael Terranova was housed in the warehouse but thankfully survived.    

Ryan was a member of the class-action lawsuit that has now reportedly settled. Under the terms of the agreement, Ryan and other plaintiffs will still be able to sue other third parties, including medical professionals, over their failure to live up to their professional duties.    

If you or a loved one has been seriously injured by a negligent nursing home, contact TheLawFirm.com today for a free legal consultation!       

Sources:    

The Courier (Houma, Louisiana). (18 July 2022). Lawyers claim settlement is reached against former nursing home owner.    

Brown, Melissa. (8 September 2021). ‘I told them I had been kidnapped’: Nursing home evacuees call 911 about lack of care, food. Lafayette Daily Advertiser.    

Copp, Dan. (19 September 2021). ‘I still cry about it’: Family members heartbroken over nursing home evacuations. The Courier (Houma, Louisiana).    

Perlstein, Mike. (23 June 2022). Bob Dean’s attorney ‘surprised’ by charges against nursing home owner. CBS 4 WWL-TV Eyewitness News.

Estate of Deceased Woman Sues OKC Nursing Home over Fatal Medication Error

June 1, 2022
Author: Daniel Gala

The estate of a deceased Oklahoma City woman has sued her former nursing home, her former doctor, and others, alleging that a simple, easily avoidable error in the administration of her medication led to her death.

“Carole Sullivan died as a result of negligent medical treatment and nursing care rendered below the standard of care by the” defendants, “including care and treatment rendered by and through the said Defendants’ agents and/or employees,” the lawsuit, filed May 6 in Oklahoma County state court, alleges.    

Carole Sullivan was a previously healthy, independent retired nurse when, in May 2020, she was admitted to Mercy Hospital with bilateral hip pain and a urinary tract infection, which left her experiencing “weakness, impaired mobility, and decreased activity tolerance,” according to the lawsuit. The hospital medical team recommended that Sullivan be admitted into a skilled nursing facility where she could receive the attention she needed to aid in her recovery, and she subsequently was admitted into the Bellevue Health & Rehabilitation Center.   

“Mercy Hospital medical records confirm that prior to her admission at the Bellevue Facility, Carole Sullivan was taking Methotrexate ‘20 mg by mouth every 7 days,’” the lawsuit says. “The order for Carol Sullivan to be administered 20 mg of Methotrexate by mouth every 7 days is repeatedly referenced in the Mercy Hospital medical records. The Mercy Hospital medical records referencing the physician and discharge orders for administration of Methotrexate are contained within the Defendant Bellevue Facilities’ medical records and patient chart.”   

While a patient at Bellevue, Carole Sullivan’s primary doctor was Dr. Alexander Frank, MD, an employee of a company, Long Term Care Specialists, Inc. (LTCS), that “provided patient care to nursing facilities and assisted living centers throughout Oklahoma.” When Sullivan was admitted to Bellevue, Dr. Frank submitted an electronic prescription for Methotrexate to “a 27,000 square foot pharmacy” allegedly owned, operated, and/or managed by a company known as Remedi SeniorCare Holdings.   

Remedi’s records show that, for quantity, it was written, “Quantity sufficient as determined by pharmacy.” Further, Remedi issued the instructions, “‘Give 2 tablet by mouth in the morning related to traumatic ischemia of muscle…for 7 days.”   

“During the investigation following Carole Sullivan’s untimely death, it was found that a registered nurse, acting within the course and scope of her employment with the Defendant Bellevue Entities had incorrectly transcribed the original Methotrexate medication order,” the lawsuit says. “The Defendant Bellevue Entities’ medication order incorrectly states ‘Methotrexate Sodium Tablet 10 mg Give 2 tablet by mouth in the morning…for 7 days’ instead of ‘give every 7 (seven) days.’”   

Despite this serious error, Bellevue had in place a software system that warned staff about the danger of this once daily rather than once weekly regimen.   

“This computer program repeatedly generated ‘Black Box Warnings’ alerting the Defendant Bellevue Entities’ agents and employees, that the daily dose of 20 mg of Methotrexate was ‘outside of the recommended dose’. These warnings also advised of the ‘possibility of serious toxic reactions, which can be fatal…’” the lawsuit alleges. “Despite these red flags, and having medical records in their possession that repeatedly referenced the correct Methotrexate dosage levels, the Defendant Bellevue Entities failed to verify and promptly confirm that the Methotrexate dosage level was safe and correct.”   

Tragically, after five consecutive days of being administered the incorrect dosage, “Carole Sullivan was found by the Bellevue Facilities staff to be hard to arouse, unresponsive to sternal rubs, and was emergently transferred to Integris – Baptist Hospital.” She died ten days later.   

“Medical records confirm that Carole Sullivan needlessly suffered a painfully slow death,” the lawsuit filed on her behalf alleges.   

As a sign of the utter lack of regard Bellevue showed in ensuring the quality of its care, the lawsuit shares this example: “During the investigation following Carole Sullivan’s death, it was discovered that the Defendant Bellevue Entities had violated federal regulations by failing to maintain documentation of grievances for the calendar years 2020 and 2021 in the grievance log or book. Shockingly, the investigation revealed, and the Administrator at the Bellevue Facility confirmed, that said grievances had ben ‘shredded’.”   

In addition to Bellevue and its related entities, the lawsuit also names as defendants Dr. Frank, his employer LTCS, and the pharmacy owners and operators Remedi. The lawsuit includes a total of four causes of action, including negligence; negligent hiring, training and supervision; negligence by Remedi; and gross negligence. Additionally, the lawsuit calls for punitive or exemplary damages, arguing that the defendants’ conduct “constitutes intentional, careless, wanton and reckless disregard…and conscious indifference to the rights, welfare, and safety of Carole Sullivan.”   

If you or a loved one has been seriously hurt because of the negligence or misdeeds of a nursing home or other skilled care facility, contact TheLawFirm.com for a free legal consultation!     

Source:   

Oklahoma State District Court Oklahoma County. (6 May 2022). Petition. Case No. 2022-2156. Brian Stufflebaum and Kevin Stufflebaum as Co-Personal Representatives of the Estate of Carole Sullivan, Deceased v. Bellevue Northwest Nursing Center, et al

The Problems with Pre-Dispute Arbitration Agreements: Iowa Nursing Home Operator Forces Family’s Lawsuit into Binding Arbitration

May 3, 2022
Author: Daniel Gala

In another example of a troubling trend in nursing home litigation, an Iowa family suing a nursing home operator for negligence has had its case moved from state court into binding arbitration, meaning they will not have the opportunity to have their claims heard before a jury of their peers. The move is the result of a an arbitration agreement that the family signed upon their loved one’s moving into the assisted living facility.   

Former Wartburg College music instructor Michael Jensen went missing from Ravenwood Specialty Care in Waterloo, Iowa on July 6, 2020, and was not found until days later on July 10, when he was discovered in a ditch submerged up to his chest in water. As a result of the ordeal, Jensen spent 22 days in the hospital recovering from hypothermia, sepsis, skin damage, and potential skeletal and heart-muscle issues.   

In response, Jensen’s wife and children sued Ravenwood Specialty Care and its parent company Care Initiatives of West Des Moines, claiming that the facility was aware that Jensen was a risk for wandering off the property and that the facility was negligent in failing to assure his safety.   

Following the incident, the Iowa Department of Inspections and Appeals found Ravenwood to be in violation of mandatory regulations, fining the nursing home $8,750, which was later reduced to $5,687, according to the Iowa Capital Dispatch.   

However, the Black Hawk County District Court sided with defendants Ravenwood and Care Initiatives in their argument that the Jensen’s case belongs in binding arbitration rather than open court, pursuant to an arbitration agreement that Michael Jensen’s wife and legal guardian Jennifer Jensen had signed as part of her husband’s admission papers.   

  The Problem with Pre-Dispute Arbitration Agreements   

Arbitration and arbitration agreements do play an important role in the American legal system, helping to reduce the strain on our already overburdened and under-resourced courts. However, in recent years, arbitration agreements have increasingly been used by large, wealthy companies to preemptively deny their customers’ right to a jury trial. This has been particularly true in the nursing home industry, where many operators have forced binding arbitration agreements on unsuspecting families and residents as part of the complicated, often highly emotional intake process.   

“Like many groups, we do not believe that the time of admission to a nursing home is appropriate for informed decision-making about such [arbitration] agreements,” the American Bar Association (ABA) Commission on Law and Aging wrote in a piece published in 2019. “Nursing home admission is usually a time of crisis for individuals and their families; the resident is in an impaired condition, the choice of nursing homes may be severely limited, and the resident and family have no idea of the kind of dispute that might be bound by an arbitration clause in the future. There are advantages and disadvantages to arbitration, but it is only after a dispute arises that those pros and cons can be fully weighed, and an informed and voluntary decision can be made.”   

The National Law Review similarly has railed against these pre-dispute arbitration agreements, as they force the parties to make an important decision without knowing any of the relevant facts.   

“When entering a nursing home, you may be asked to fill out a procedural form called a ‘Pre-Dispute Arbitration Agreement,’” the National Law Review wrote in 2020. “This agreement essentially takes away your right to hold a nursing home accountable in court, for any and all potential negligence and wrongdoing. ‘Pre-dispute’ arbitration agreements require giving up this right before neglectful actions even take place. Therefore, you will never have the chance or opportunity to determine whether court is necessary or not should anything happen to you.”   

Many experts emphasize that many people signing pre-dispute arbitration agreements may not have a full understanding of exactly how broad a term “dispute” is in this context. Basically, a “dispute” covers any harm that a nursing home potentially could do to you or your loved one, including “[r]eceiving the wrong medication or dosage”; “[d]eveloping bedsores/pressure ulcers as a result of neglect”; “[s]uffering any injury that results from neglect, including falls and broken bones”; “[h]aving money or belongings stolen”; “[b]eing physically abused or assaulted by a fellow resident or staff member”; and “[b]eing sexually assaulted by a fellow resident or staff member,” per the National Law Review.   

By signing a pre-dispute arbitration agreement, you sign away your right to ever have any of your claims heard in a court of law before a jury of your peers, instead having your argument heard and case decided by a sole arbitrator whose decisions are largely unappealable.   

  Why Do Companies Love Pre-Dispute Arbitration Agreements So Much?   

Companies in a host of industries have come to favor pre-dispute arbitration agreements for a number of reasons. First, by not having to go to trial and greatly reducing the likelihood of an appeal, companies achieve greater cost certainty through binding arbitration than by having to deal with lawsuits in government courts. Second, arbitration proceedings are typically kept confidential, meaning that if a company caused some terrible harm, the likelihood of that information becoming public is much less in private arbitration proceedings than if the issue were litigated in open court. Third, arbitrators are running private businesses, and they need a steady flow of clients in order to make money. If an arbitrator gets a reputation for being “anti-business”, their bottom line might suffer. In the instance of a large nursing home, the nursing home is much more likely to be a repeat customer of the arbitrator’s services than an individual or family bringing a claim, putting that party at a significant disadvantage right out of the gate.   

Given these factors, it is understandable why businesses would want to push pre-dispute arbitration clauses on their customers. However, there is little if any reason for a consumer ever to sign one.   

  You DO NOT Have to Sign a Pre-Dispute Arbitration Agreement to Be Admitted into a Nursing Home!   

While recent rules issued by the Centers for Medicare & Medicaid Services (CMS) did not go as far as some advocates wanted by banning outright all pre-dispute arbitration agreements for nursing homes, these rules do make it illegal for a nursing home to require a pre-dispute arbitration agreement for admission. Therefore, even if a nursing home presents you with a pre-dispute arbitration agreement, you are not required to sign it. You can (and should!) refuse to do so.   

  If you or a loved one has been injured due to the negligence or wrongdoing of a nursing home, contact TheLawFirm.com for a free legal consultation!   

  Sources:   

Kauffman, Clark. (28 April 2022). Nursing home chain faces lawsuits, arbitration and fines alleging negligence. Iowa Capital Dispatch   

Sabatino, Charlie. (July-August 2019). Our New Nursing Home Arbitration Mandate: Educate, Educate, Educate. American Bar Association (ABA) Commission on Law and Aging. Bifocal. Vol. 40 Issue 6 (July-August 2019)   

The National Law Review. (11 November 2020). Saying “No” to Pre-Dispute Arbitration Agreements in Nursing Homes   

Kantor, Mark, et al. (20 February 2020). CMS issues new arbitration rule for nursing homes. American Bar Association Alternative Dispute Resolution Committee. Practice Points

Operator of Calif. Nursing Homes Accused of Lying about Staffing Settles for $3.25m

March 24, 2022
Author: Daniel Gala

The nation’s largest operator of senior-living facilities has agreed to pay $3.25 million to settle claims of improper conduct at ten of the company’s California facilities. A coalition of district and city attorneys led by California Attorney General Rob Bonta accused Brookdale Senior Living Inc., a company based in Tennessee, of numerous violations including discharging patients without proper notice and reporting false information to the Centers for Medicare & Medicaid Services (CMS).  

“This case demonstrates that we will hold senior living facilities accountable to follow the rules regarding proper notification before release or transfer of an elderly person in their care,” said San Diego County District Attorney Summer Stephan, per KPBS. “This lawsuit exposed the kind of misrepresentation that won’t be tolerated when it comes to protecting some of the most vulnerable in our community. Brookdale’s actions put seniors and people with disabilities at risk.”  

According to a statement issued by California AG Bonta, the false information allegedly submitted to CMS included “over-reporting the number of hours that nurses provided care to residents,” which was intended to boost the facilities’ star ratings, which are “used by consumers as a means of selecting a quality skilled nursing facility.”  

“Through its misrepresentations to CMS, Brookdale fraudulently increased its star rating in several categories to attract prospective residents and their families,” the AG’s statement said.  

In addition to misrepresenting the number of hours that nurses were providing care at its facilities, Brookdale also was accused of failing to comply with a mandatory 30-day notice prior to discharging residents.  

“Skilled nursing facilities are required to give notice of transfer or discharge at least 30 days in advance, or as soon as practicable. Brookdale failed to timely provide this required notice to its residents, with a copy to the local ombudsmen. Brookdale also failed to properly prepare its residents for transfer or discharge,” the AG’s statement said.  

The $3.5 million settlement consists of $2.4 million in civil penalties; $550,000 in costs; and $300,000 to the Kern County Long Term Care Ombudsman.    

Additionally, Brookdale will be required to pay for a quality control specialist to oversee Brookdale’s compliance with the settlement agreement for 18 months. The parties agreed to select Professor Christopher Cherney of Skilled Review Consulting, LLC for that role. According to his LinkedIn profile, in addition to being a consultant “on long term care facility administrations and operations,” Cherney presently is an adjunct faculty member at San Jose State University’s Public Health Department. https://www.linkedin.com/in/christopher-cherney-b4b29637  

Significantly, the stipulated judgment explicitly does not exempt Brookdale from further liability regarding California’s Medicaid program, potentially leaving the door open for further penalties against Brookdale in the future.  

“This Judgment does not apply to, resolve, estop, adjudicate, preclude or bar any claims for civil, criminal, or administrative liability that any person or entity, including Defendant, has or may have to the State’s Medicaid Program,” the stipulated judgment states.  

“Skilled nursing facilities should always provide their residents with the highest standard of care,” said AG Bonta. “Instead, Brookdale put seniors and people with disabilities at risk, and misled prospective residents and their families about the quality of its California facilities.”  

If you are a loved one has suffered harm due to the negligence or malfeasance of a nursing home operator, contact TheLawFirm.com for a free consultation!  

Sources:  

City News Service. (11 March 2022). Senior living facility operator settles lawsuit with state. KPBS  

State of California Department of Justice Office of the Attorney General. (11 March 2022). Attorney General Bonta Announces $3.25 Million Settlement with Brookdale Senior Living for Misrepresenting Quality of Care and Putting Seniors, People with Disabilities at Risk. Press Release  

Superior Court of the State of California County of Kern – Metropolitan Division. (11 March 2022). Final Judgment and Injunction. The People of the State of California vs. Brookdale Senior Living, Inc. Case No. BCV-21-100539  

Cherney, Christopher. (Accessed 23 March 2022). LinkedIn

Las Vegas Nursing Home With 30 COVID Deaths Says It’s Immune From Lawsuits

December 6, 2021
Author: Daniel Gala

A Las Vegas nursing home with a history of documented failures to follow basic COVID protocols and which has had 30 residents pass away due to COVID-19 has argued that federal law protects it from wrongful death lawsuits filed by the families of the deceased, the Las Vegas Review-Journal has reported.   

The 190-bed Heights of Summerlin has seen more than 100 residents test positive for COVID-19 since the pandemic began. Additionally, almost the same number of the facility’s 200 staff members also have tested positive. Now, at least seven lawsuits and four arbitration cases have been filed against The Heights of Summerlin alleging that the skilled nursing facility was negligent in protecting its residents from the danger posed by COVID-19.   

The plaintiffs in those cases would seem to have a great deal of evidence to support their claims that The Heights of Summerlin failed to take basic measures to prevent the spread of the coronavirus among staff and residents. In 2020, the Nevada Department of Health and Human Services released a report citing a number of deficiencies at The Heights of Summerlin, including several involving the improper use of PPE.   

“Concerns identified included: Staff assigned to the quarantine areas used N95 and were not fit tested, or medically cleared for use of the N95 mask. Residents received physical therapy in the therapy gym without wearing face mask. Residents outside of their rooms not wearing face mask, including a symptomatic resident in the quarantine area,” the 2020 report stated. “A laboratory vendor visited several areas in the facility, including the designated quarantine areas carrying a cart with supplies without properly disinfecting the cart. Staff were not clear about the personal protective equipment (PPE) that had to be used in the designated quarantine areas.”   

The list goes on. And yet lawyers for The Heights of Summerlin are claiming that federal law completely shields the nursing home from liability. Specifically, in arguing that the cases against The Heights should be tossed out of court, defense counsel has cited the recently amended Public Readiness and Emergency Preparedness Act (PREP Act), which protects a broad range of healthcare companies from pandemic-related lawsuits.   

“The PREP Act is designed to enable healthcare providers, including skilled nursing facilities, to focus on using every available means to combat a pandemic and save lives without being chilled in their efforts by the threat of lawsuits,” counsel for The Heights of Summerlin argued in court documents quoted by the Review-Journal.   

However, exactly which companies the PREP Act’s legal protections apply to is not exactly clear, and the answer could mean the difference between, on the one hand, plaintiffs receiving vindication in a court of law as well as financial compensation for the loss of a loved one, and, on the other, receiving nothing while knowing that the people who caused their loved one’s death have gotten away without punishment.   

The emotional toll that this legal uncertainty has taken on the survivors has been immense.   

“We’ve had no closure, we’ve had no resolve, we’ve had no peace,” plaintiff Sylvia Smith, who filed a lawsuit against The Heights of Summerlin over her father’s April 2020 death, told the Review-Journal. “It’s the family’s responsibility to fight for their family, dead or alive. And that’s what we’re doing.”   

In a positive development for plaintiffs seeking to hold nursing homes accountable for substandard care, the federal Third Circuit Court of Appeals recently rejected an attempt by two nursing homes to have state cases removed to federal court based on the PREP Act. Thus far, the PREP Act argument made on behalf of nursing home defendants has been rejected in approximately four dozen cases nationally, according to the Review-Journal, which cited only one instance of a court agreeing that the PREP Act’s legal shield applied to nursing homes alleged to have been negligent in their pandemic response.   

Sources:   

Nevada Erickson, Briana. (8 November 2021). Summerlin nursing home says it’s not liable in COVID death lawsuits. Las Vegas Review-Journal.   

Appeals Court Affirms Nursing Homes Not Immune From State Claims Under Federal COVID Immunity Law

November 3, 2021
Author: Daniel Gala

In a win for the estates and families that have sued nursing home operators across the country over the more than 135,000 nursing-home-related deaths that have taken place during the COVID-19 pandemic, a federal appellate court ruled October 20 that two lawsuits against New Jersey nursing homes belong in state—rather than federal—court.   

The lawsuit ruling—the first appellate decision to specifically address whether nursing homes are covered by federal COVID-era immunity laws—represents an enormous win not just for the plaintiffs in the two cases under appeal but for nursing home plaintiffs across the country. In response to COVID lawsuits, many defendant nursing home operators have argued that their cases belong in federal court because they are covered by the federal Public Readiness and Emergency Preparedness (PREP) Act, a 2005 law that empowers the Secretary of Health and Human Services (HHS) to grant certain individuals and entities immunity from specific types of lawsuits during a public health emergency.   

In brief, the PREP Act allows the HHS Secretary to grant immunity for “covered persons” for legal claims arising from their deployment of countermeasures used in response to a public health crisis, except for in situations involving willful misconduct.   

Defendant nursing homes have argued (1) that they qualify as “covered persons” under the PREP Act and that (2) this means that essentially any COVID-related lawsuits against them—even those involving solely state claims, like the two cases in question—would become a matter for federal courts to decide.   

However, the Third Circuit Court of Appeals has now officially shot down that argument in a precedent-setting opinion that will hold considerable legal weight in similar cases, both those currently pending and those yet to be filed.   

“The defendants invite us to assert ‘the judicial Power of the United States’ over a matter that belongs to the states,” US Circuit Judge David Porter wrote for the Third Circuit Court of Appeals in an Opinion issued October 20. “We decline that invitation. We will not exercise power that the Constitution and Congress have not given us. There is no COVID-19 exception to federalism.”   

The two nursing home lawsuits that were on appeal involved the tragic deaths of individuals who had been residents at two different New Jersey nursing homes— Andover Subacute Rehabilitation Centers I and II—both owned by defendants Chaim “Mutty” Scheinbaum and Louis Schwartz through their company Alliance Healthcare. The plaintiffs—family members of the deceased and representatives of their estates—sued the nursing homes, Alliance, and the owners, alleging that their loved ones died “as a result of Defendants’ failure to exercise due care with respect to coronavirus infections,” in the words of the district court judge who heard the cases.   

While the plaintiffs originally filed their lawsuits in New Jersey state court, the defendants moved to have the cases removed to federal court, arguing that the federal PREP Act applied to them and that it preempted any state court claims the plaintiffs might bring. Originally passed into law in 2005, the PREP Act allows certain individuals and entities to escape liability during a public health emergency by receiving a declaration from the Secretary of Health and Human Services (HHS).   

On March 17, 2020, the then-HHS Secretary issued the department’s first COVID-related declaration, which has since been supplemented by nine amendments and a technical correction. The defendant nursing homes argue that the March 2020 declaration as amended applies to them and preempts any state law claims.     

After the defendants succeeded in having the two cases removed from New Jersey state court to federal district court, the plaintiffs sought to have it returned to state court, and the district judge sided with the plaintiffs in an opinion filed August 12, 2020.   

“Defendants state they are ‘covered persons’ under the PREP Act and that such a ‘covered person’ shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure during a public health emergency,” US District Judge Kevin McNulty summarized in his August 2020 opinion.   

However, in later analysis, District Judge McNulty concluded that, even if the PREP Act did cover the defendants, the immunity granted by the PREP Act from state and federal legal claims is not absolute, as defendants argue it is.   

“Nothing in the language of the Act suggests that it was intended to more broadly displace state-law causes of action for, e.g., malpractice or substandard care—even if proper care possibly would have entailed administration of such countermeasures [as are covered by the PREP Act],” District Judge McNulty found.   

Seeking to keep the cases in federal court and overturn the district court’s PREP Act findings, the defendants then appealed to the Third Circuit Court of Appeals, marking the first time that a federal appellate court had opined on the issue of whether the PREP Act and the HHS declarations fully preempt all state claims related to actions nursing homes took related to the COVID-19 pandemic.   

“The nursing homes…argue that complete federal preemption of the [plaintiffs’] estates’ claims warrants removal to federal court,” the Third Circuit wrote in its October 20 opinion. “They argue that the PREP Act is so pervasive that the estates’ state-law negligence claims are really federal claims under the PREP Act, and are thus removable to federal court. We disagree.”   

The Third Circuit’s opinion, affirming the ruling of the district court, marked an enormous victory for nursing home plaintiffs across the country and a huge setback for nursing home defendants. Going forward, all district court judges facing this issue will be required to the Third Circuit’s precedent-setting opinion for guidance.   

The two cases at issue will now return to New Jersey state court for further proceedings.   

If you or a loved one has been the victim of an unscrupulous nursing home operator, contact TheLawFirm.com today for a free legal analysis!   

  Sources:   

United States Department of Health and Human Services (HHS). (Last updated 8 October 2021). Public Readiness and Emergency Preparedness Act. COVID-19 PREP Act Declarations. Office of the Assistant Secretary for Preparedness and Response   

United States District Court District of New Jersey. (12 August 2020). Opinion. Civ. Cases Nos. 20-6605 and 20-6985   

United States Court of Appeals for the Third Circuit. (20 October 2021). Opinion of the Court. Case 20-2833

Families Sue Nursing Home Over Loved Ones’ COVID Deaths

Oct 14, 2021
Author: Daniel Gala

The families and estates of 14 individuals who died of COVID-19 while residents at a nursing home in Northern California have sued the home, the owner, and several of his business entities, alleging that the facility was not licensed for operation and that the extremely inadequate care residents received amounted to elder neglect and abuse.

With the Centers for Medicare & Medicaid Services reporting more than 137,000 COVID deaths among nursing-home residents and more than 2,000 COVID deaths among nursing-home staff nationwide, it is highly likely that many similar lawsuits will continue to be filed across the country.

Filed in Shasta County state court, the lawsuit claims that, despite receiving multiple citations from the California Department of Public Health (CDPH), the Windsor Redding Care Center “continued its custom and practice of ignoring regulatory requirements and infection control procedures.”

As a result, plaintiffs allege, the Windsor suffered a massive COVID outbreak, with 60 of the facility’s 83 residents ultimately testing positive for the virus and roughly two dozen dying from complications due to the disease.

An inspection conducted by the CDPH on September 25, 2020 documented a number of serious violations, including multiple instances of nursing-home staff reporting COVID-19 symptoms yet being ordered to report to work regardless.

“Both [of the employees who had reported symptoms but were forced to work] later tested positive for COVID-19 but only after exposing countless residents to the virus,” the lawsuit says. “The inspector noted that one of the reasons the employees may have felt compelled to work was that Windsor had adopted a punitive sick leave policy in violation of California law.”

The CDPH inspection also revealed chronic understaffing and a profound lack of training, including training on basic elements of PPE (Personal Protective Equipment) use. According to the lawsuit, “[W]hen the inspector asked one nurse who was wearing a mask on her chin whether the mask should be covering her nose and mouth she responded by stating ‘I don’t know.’”

Originally filed August 26, the lawsuit includes six causes of action, including: abuse/neglect of an elder, wrongful death, fraud, and negligence. The two other claims involve alleged violation of California’s Patient Bill of Rights and of the state’s unfair business practices act.

An Unlicensed Facility, An Owner with a Track Record of Violation

Inexplicably, the Windsor Redding Care Center had continued to house residents despite its owner being denied a license to operate the facility years before the pandemic struck. In July 2016, the CDPH issued a notice of denial for the “River Valley Healthcare & Wellness Center” at 2490 Court Street, Redding, CA. The website for the defendant Windsor Redding Care Center (www.windsorreddingcc.com) lists an identical address for its facility.

“After careful review and consideration of your application and all of the supporting information, CDPH denies your application for a license to operate the above-reference [sic] facility,” states the CDPH denial letter, which is addressed to notorious nursing-home owner-operator Shlomo Rechnitz. https://www.documentcloud.org/documents/21069830-denial-river-valley-healthcare-wellnes-centre-lp

According to the CDPH letter, the denial was based in large part on Rechnitz’s past record as a nursing home owner-operator, with the agency’s review having found that facilities “owned, managed, or operated” by Rechnitz “directly or indirectly” had been cited with 265 different federal violations during the three years from June 2013 to June 2016.

These violations include numerous documented incidents of failure to provide a safe environment; failure to adequately monitor residents’ medication regimens; failure to maintain sufficient food supplies to meet dietary standards; failure to ensure compliance with infection-control procedures; and many, many more.

For years, Rechnitz has been accused of enriching himself by severely cutting costs at his nursing-home facilities, reducing staffing, services, and training to the point where he has been accused on multiple occasions of putting the health and safety of residents and staff at serious risk.

An April 2021 investigation by the nonprofit news outlet CalMatters into the state’s failing nursing-home licensing system revealed that Rechnitz, via his numerous companies, is California’s largest nursing home owner, controlling upwards of 80 different facilities with a combined total capacity of over 9,000 residents.

Rechnitz has been able to amass his empire despite his facilities repeatedly being cited for serious violations. In 2014, he was able to purchase 18 additional nursing homes through a bankruptcy auction, over the objections of then-California Attorney General Kamala Harris.

With the already-poor conditions at nursing homes across the country having exacerbated the horrific toll of COVID-19, it is likely we have only seen the beginning elder abuse lawsuits related to the ongoing pandemic.

If you or a loved one has been the victim of a nursing home that has failed to meet its required standard of care, contact TheLawFirm.com today for a free legal consultation!

Sources:

Centers for Medicare & Medicaid Services. (Last Updated 7 October 2021). COVID-19 Nursing Home Data

California Department of Public Health. (8 July 2016). RE: NOTICE OF DENIAL OF APPLICATION

Superior Court of the State of California County of Shasta. (26 August 2021). Complaint and Demand for Jury Trial. Hearden et al. v. Windsor Redding Care Center, LLC, et al

Wiener, Jocelyn. (6 April 2021). California oversight of nursing homes called ‘befuddling,’ ‘broken’. CalMatters

Nursing Home Wrongful Death Due To Corona Virus (Covid-19)

May 11, 2020
Author: Jeremy Fietz

Did your loved one contract the novel CORONA VIRUS (COVID-19) at a nursing home?    

Our investigations have revealed that some nursing homes may be either too late or too sloppy in their implementation of infectious disease protocols issued by the Department of Health & Human Services, Center for Disease Control.   

See - Nursing Homes Preparedness Checklist  

Very early in the spread of the novel corona virus (Covid-19) in the United States, it was identified that the elderly were at particular risk due to the nature of the virus.  A nursing home in Washington State was the first cluster of contagion in America in February 2020.  The risk to elderly residents of nursing homes was well known from the very beginning and yet some nursing homes did the bare minimum (or less) to protect our loved ones from this deadly virus.   

Actions to protect the nursing home residents should include strict infection controls, disinfection of all equipment between use by residents, disinfection of caregivers between contacts with different residents, strict food preparation and service protocols, limiting unnecessary contact between residents and staff, eliminating unnecessary contacts between residents, eliminating contacts between residents and outsiders, establishing strict disinfection procedures when anyone from outside the facility (including workers) enters the facility.  These are simple common sense practices that, if implemented, may prevent the death of many of our nation’s elderly.   

If your loved one is at a nursing home currently, please help protect them from viruses by asking about the facility’s adherence to the CDC’s guidelines and infection controls.   

If you lost a loved one, please accept our deepest sympathies for your loss.   Losing a loved one is always sad.  When it is preventable it becomes a tragedy.   

We have handled nursing home wrongful death claims for over 20 years.  Call now for a free evaluation of your potential claim. 

Call now to speak with a nursing home neglect attorney for a free consultation:
1-855-464-0808

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