Nursing Home Abuse Advocate

Nursing Home Abuse Advocate

News and updates on issues concerning nursing homes and assisted living facilities

Nursing Home Arbitration Agreements – A Light At The End Of The Tunnel?

Posted in Uncategorized

After last week’s somewhat lighthearted post about pet owners, it’s back to something more important. Something that may effect a majority of nursing home and assisted living residents and their families. That something is forced arbitration of disputes with facilities.

What is “forced arbitration”? Well, oftentimes when a resident enters a nursing home or assisted living facility, they are required to sign contracts, which often contain a clause which says, in essence, you cannot bring a lawsuit against the facility in any court of law. Instead, you have to utilize a private “judge,” otherwise known as an arbitrator (sometimes there will be a panel of 3 arbitrators) to hear your case. Even people who are not parties to the agreement, namely, the surviving members of a resident’s family, who claim their loved-one’s death is because of a nursing home’s negligence or neglect, or worse, may be forced to utilize this arbitration procedure.  In theory, this procedure should afford swifter justice at a reduced cost. In practice, the resident’s family usually comes out with the short end of the stick. A recent case out of Oklahoma, however, may prove useful in fighting against forced arbitration.

The Oklahoma Supreme Court issued a decision on September 30, 2014, in a case called Boler v. Security Health Care, L.L.C.,  in which it held because the next of kin of Cleo Bolder, a deceased nursing home resident, did not sign a contract with the nursing home in their personal capacities and their claim was not wholly derivative of their loved-one’s claim, the arbitration agreement did not apply to the next-of-kin. Now that is a mouthful; let’s unpack that a little bit.

(1) The next-of-kin did not sign the nursing home contract in their “personal capacities” means: Sure, Cleo’s next-of-kin signed the nursing home contract, but only on behalf of Cleo. They didn’t sign it for themselves. The Court held that because this was the case, the contract could not be enforced against the next-of-kin.

(2) The next-of-kin’s claim was not “wholly derivative” of Cleo’s claim means: Recovery under Oklahoma’s wrongful death statute is for the benefit of the surviving spouse and children or next-of-kin. It does not go to the person who died’s estate. That makes it not “wholly derivative” in the Oklahoma Supreme Court’s view.

In the past, nursing home arbitration agreements seemed like a long, dark tunnel to family members trying to get just compensation for a loved-ones’ death. The Boler case gives loved-ones a light at the end of that tunnel.


Who Says Pets Aren’t Members Of The Family

Posted in Uncategorized


Any one who knows me will tell you I am an animal lover. My chocolate Labrador Retriever, Maggie, comes to the office most days with me. (That’s Maggie’s picture.) At first, I was concerned how potential clients would view the fact I have my dog at the office with me. Then I figured: Hey, this is who I am. Also, I’ve found having Maggie around tends to put people at ease. In fact, there are days at Kormanik Hallam & Sneed when there are 3 dogs at the office!

Since I am an animal lover, the story about Cleo the cat and her owner Ms. Nancy Cowen. It seems Ms. Cowen had to move from her home to a nursing home facility; Cleo was left in the care of neighbors. Well, shortly after Ms. Cowen arrived at the home, staff noticed a cat hanging around the place. It wasn’t until a few weeks later that Ms. Cowen finally had the chance to see the cat and, of course, she recognized Cleo! Thankfully, the nursing home allows pets and Ms. Cowen and Cleo have been reunited.

Who says pets aren’t members of the family?

California Enacts A 100-Fold Increase In Assisted Living Facility Fines…That Just Tells You The Fines Were Too Small To Begin With

Posted in Abuse/Neglect, Nursing Home Abuse, Resident and Family Resources

In a recent San Diego Union Tribune article, Deborah Schoch noted California has just raised the fine the state can impose for violations which cause the death of an assisted living facility resident 100-fold. Sounds GREAT…doesn’t it? Well, dig a little deeper and you’ll find although it is a remarkable increase…the reason is that the fines were so low to begin with. Prior to the enactment of the current law, the most the State of California could fine a facility when it caused the death, thorough abuse or neglect, of a resident was $150.00. Unbelievable! Now, California can fine a facility $15,000.00. While that is a more respectable number…is it really enough?

In Idaho, according to the most recent Idaho Department of Health and Welfare regulations, the fines imposed on assisted living facilities are tied to the number of beds and the length of the alleged violation. Also, if the violation “places the health or safety of its residents in danger,” the state has the ability to remove all residents from the facility and appoint temporary management.

At the end of the day, it us up to the families of assisted living facility residents to protect the resident’s safety. If a resident dies due to abuse or neglect in an assisted living facility, the family should contact an attorney to be sure just compensation is obtained.

Infections In Nursing Homes – On The Rise…But Easily Preventable

Posted in Family Resources, Nursing Home Resident Safety, Resident and Family Resources, Resident Resources

A recent article on talks about a study performed by the Columbia School of Nursing shows infection rates at nursing homes are “on the rise,and that trend will continue until better hygiene practices are put in place.” The story, by Robert Preidt, contains important and useful information and some “simple” ways to decrease infection rates.

First, the bad news: The researchers analyzed data submitted by nursing homes to the U.S. Centers for Medicare and Medicaid Services between 2006 and 2010. According to the analysis, the data showed “rising rates of pneumoniaurinary tract infections, viral hepatitis, septicemia (blood infection), wound infections and multiple drug-resistant bacterial infections such as methicillin-resistant Staphylococcus aureus (MRSA).”

Now, the “good” news: There are simple steps which, if taken, could easily reduce the chance of infection. One example, cut the use of uniary cathaters and, instead, have residents use the bathroom on a regular basis. Sounds simiple, right? Well, nursing home facilities would need to hire sufficient staff to make this happen.

A second, universally recognized, method of reducing infection rates is even more simple: hand washing! The article quotes  the study’s author Carolyn Herzig, of the Columbia University School of Nursing: “When you walk into a nursing home for the first time, you should easily spot hand sanitizer dispensers or hand-washing stations. If you don’t see this, it’s an indication that infection control and prevention may be lacking at the facility.”

At the end of the day, it is up to all of us to prevent infections in nursing home facilities. If you do not see hand sanitizer dispensers or hand-washing stations, say something!

Big Pharma – Follow Up

Posted in Abuse/Neglect, Nursing Home Resident Safety, Nursing Home Resources, Resident and Family Resources, Resident Resources

In a recent post, I wrote about how “Big Pharma,” or pharmaceutical companies, have been pushing antipsychotic medications on nursing home residents as a method of making individuals who suffer from dementia more “manageable” for facilities who don’t have adequate staff or properly trained staff. Apparently, nursing homes are worried about the bad publicity.

In an article in The Hill: “Nursing homes are promising to reduce their use of antipsychotic medications on dementia patients 25 percent by 2016 and 30 percent by 2017.”  The questions are: (1) Is that “enough” of a reduction; and (2) With the amount of money involved, can we actually trust the nursing home industry to make the cuts?

The Hill article quotes Patrick Conway, chief medical officer with Medicare and Medicaid: “We know that many of the diagnoses in nursing home residents do not merit antipsychotics, but they were being used anyway.” If even one redident suffereing from dementia receives antipsychotic medication in an effort to control their behavior…that is too many. Shouldn’t the goal be “Zero tolerance”?

The amount of money made by Big Pharma in this area is staggering. My original post mentioned the $2.2 billion fine leveled by the federal government against Johnson & Johnson in 2013 for pushing antipsychotics to nursing homes to use on residents suffereing from dementia. Although not mentioned in my original post, this was not the first time Big Pharma had been fined. In fact, the AARP reports: “Back in 2009, Eli Lilly did the same thing with its antipsychotic Zyprexa, marketing to older people in nursing homes and assisted living facilities, federal prosecutors charged. In a settlement, the company agreed to pay $1.4 billion. At the time, Patrick Doyle, special agent in charge of the Office of Inspector General for the U.S. Department of Health and Human Services in Philadelphia, said: ”This case should serve as still another warning to all those who break the law in order to improve their profits.”

I may have a very jaded view, but here it is: There’s simply too much money to be made by Big Pharma for companies to give up this lucrative albeit illegal market. A $1.4 billion fine on a competitor wasn’t enough of a fine to prevent Johnson & Johnson from going down this path. Big Pharma is in the business of making money…the companies will do anything to improve their bottom line.

I do not expect this is the last you will hear from me about this issue.


Idaho Nursing Homes Are More Dangerous Than Last Year

Posted in Abuse/Neglect, Nursing Home Abuse, Nursing Home Resources, Resident and Family Resources, Resident Resources

Families for Better Care is a “non-profit citizen advocacy group dedicated to creating public awareness of the conditions in the nation’s nursing homes and other long-term care settings and developing effective solutions for improving quality of life and care.” According to Families, Idaho no longer ranks in the top-ten states for nursing home care.

Families “Nursing Home Report Card” uses data compiled by the Kaiser Family Foundation, performance measures utilized in Medicare and Medicaid’s Nursing Home Compare and the Office of State Long-Term Ombudsman complaint data. Basically, Families looks at lots of data and comes up with letter grades for the states. This link will take you to the page describing exactly how Families does its evaluation.

Let’s look at Idaho’s Report Card. In 2013, Idaho received an overall grade of “A” and was in the top ten states in the nation with a rank of 8th. In 2014, Idaho receives an overall grade of “B” and therefore is no longer in the top ten states, instead, Idaho now ranks 15th in the nation.

I think Families’ most disturbing findings are that “Severe deficiencies in Idaho nursing homes swelled 11 percent over the last year, pushing the number of potentially dangerous nursing homes to nearly one in every two” and “Verified ombudsman complaints increased 10 percent over the previous year, indicative of growing problems in nursing homes.”

What does this say about Idaho nursing home facilities? It says they are not as safe as they were. If you or a loved one is injured in an Idaho nursing home or assisted living facility, consider contacting the attorneys of Kormanik Hallam & Sneed LLP to discuss your potential options.


Surveillance In Nursing Homes: Shouldn’t The Facility Foot The Bill?

Posted in Abuse/Neglect

A recent article by Wes Venteicher in the Chicago Tribune caught my eye. The story is about some legislation in Illinois, which, if enacted, would allow cameras or audio recording devices in nursing home resident’s rooms, if the resident consents and the cost is covered. The legislation would also allow the recordings to be used in court and would include penalties for anyone who tried to obstruct or disable the device.

Illinois Attorney General Lisa Madigan announced the legislation and is quoted as follows: "The work that I have done … as attorney general has unfortunately proven that too often when our loved ones are in a nursing home they are not always safe and they are not always well cared-for." 

My question is this: If the nursing home or assisted living facility is responsible for providing a safe and caring environment…why should the residents or their families bear the cost of monitoring? It doesn’t seem appropriate to shift the cost away from the facility to the family who, quite frankly, may not be able to bear the cost. What do you think?


Three Key Signs Of Nursing Home Abuse

Posted in Abuse/Neglect, Nursing Home Abuse, Nursing Home Resident Safety

I am constantly reminded that abuse of nursing home residents is a significant problem. This post serves as a great reminder to all those who have loved ones or friends in nursing home facilities: There are at least three key signs of nursing home abuse: 

  • Bedsores. Bedsores, or "decubitus ulcers," are NOT normal, no matter how bedridden a nursing home resident is. Unless a doctor indicates bedsores are unavoidable, which should never be the case, a person who enters a nursing home or other facility without bedsores should not develop them during their time in the facility. Bedsores can lead to serious infection and even death.
  • Unexplained Injuries. Skin tears, bruises and fractured bones may be caused by inadequate care or physical abuse. Careless transport to and from bed is often the culprit as is physical abuse. Improper or inadequate staffing levels oftentimes lead to these types of injuries.
  • Inexplicable Depression. Mental abuse doesn’t leave any physical marks, but is nevertheless a problem in nursing home facilities. When a resident is spoken to in belittling, derogatory, intimidating or disrespectful ways, this constitutes mental and emotional abuse.

If you have a loved one or friend in a nursing home facility, please be alert to these signs and symptoms of abuse. Oftentimes, nursing home residents can’t protect themselves let alone communicate abuse is occurring. It is up to all of us to be alert.

If you suspect your loved one or friend is the victim of abuse, contact the administrator of the facility, law enforcement and the state authorities. If an attorney is needed, please consider Kormanik Hallam & Sneed.


Big Pharma – Pushing Antipsychotics On Nursing Home Residents

Posted in Nursing Home Abuse, Nursing Home Resident Safety, Resident and Family Resources

In a recent article, the American Association of Retired Persons (AARP), described in detail a serious problem in nursing home facilities: pharmaceutical companies "pushing" antipsychotic medications to be used on elderly nursing home residents with dementia. Often times, these types of medications are used as "chemical restraints" on nursing home residents. AARP’s article is, quite frankly, startling.

The article cites Charlene Harrington, professor of nursing and sociology at the University of San Francisco, who says "as many as 1-in-5 patients in the nation’s 15,500 nursing homes are given antipsychotic drugs that are not only unnecessary, but also extremely dangerous for older patients." 

The article also quotes Toby Edelman, an attorney for the Center for Medicare Advocacy, in Washington D.C., who calls the misuse of antipsychotic drugs "one of the most common and long-standing, but preventable, practices causing serious harm to nursing home residents." What does Mr. Edelman believe is the basic problem? Well, it’s corporate greed, of course: "When nursing facilities divert funds from care of residents to corporate overhead and profits, the human toll is enormous."

What is perhaps most disturbing is that big pharmaceutical companies are essentially acting like high level drug pushers. For example, in November 2013, the United States Department of Justice settled one of the largest health care fraud cases in history against Johnson *& Johnson. The company paid $2.2 BILLION dollars to resolve criminal and civil charges. Johnson & Johnson’s crimes: marketing antipsychotics to nursing homes, when the company knew they were not approved by the FDA as safe and effective for a general elderly population. Johnson & Johnson also allegedly paid kickbacks to doctors and other employees of Omnicare, the nation’s largest long-term care pharmacy provider.

Part of my practice is defending those charged with crimes. I can tell you, if a client of mine did the things Johnson & Johnson was accused of doing, a fine would have been the least of the client’s worries. My client would be looking at a long prison sentence, courtesy of the United States government!

Do you think you or a loved one in a nursing home is being wrongly given antipsychotic medications? If so, give us a call, maybe we can help.

How To Choose A Nursing Home…Use Your Eyes, Ears and Nose

Posted in Choosing a Nursing Home

A few weeks ago I wrote about a New York Times article by Katie Thomas, which addressed the problems with the Medicare 5-star rating system for nursing homes. Because I subscribe to the NYT, I am able to follow the reader’s comments on this article, and I have. One "Letter to the Editor" of the NYT is, quite frankly, provides critical information for anyone looking for a nursing home or assisted living facility.

In his letter, Mr. Steven Raichilson, Executive Director fo the Menorah Park Center for Senior Living, located in Beachwood, Ohio, "nails" the factors anyone visiting a nursing home must see to decide if it is an appropriate place for a loved one. In short, you have to use your "eyes, ears and nose."    Some examples Mr. Raichilson gives are spot-on: 
  • How does the facility smell? Is it free of urine odors?
  • How do the residents look? Are men shaved, is women’s hair brushed, are nails clean and residents dressed appropriately in regular clothes instead of pajamas?
  • How do the meals look? Are there wholesome portions, variety and thoughtful presentation?
  • What is the background noise in the nursing home? Is it TVs blaring and staff speaking loudly to residents, or are there meaningful activities going on with quiet, respectful and professional interaction between residents and staff?
When you’re looking for a nursing home or assisted living facility placement, you cannot simply rely of literature and ratings systems. You MUST go to the facility, preferably several times at different times of the day, to help you decide.        Choosing the right nursing home for you or a loved one is one of the most solemn things anyone can do. The place must not only provide the appropriate care, but must be as much like home as possible. Use ratings systems with a critical eye…but also visit the place. Use your senses…ithe time you take will certainly pay off in the end.