August 25, 2016

Woman Injured by Fall in Nursing Home Files Lawsuit

by Levin & Perconti

Falls are the number one cause of injuries among the elderly. According to the CDC, Centers for Disease Control, older individuals suffer serious injuries due to falls although most falls are preventable. Falls in nursing homes are certainly disconcerting because residents are supposed to be kept safe from harm. When a fall occurs, it is likely due to negligence on the part of the nursing home management or staff. In one recent case, a woman filed a lawsuit against the nursing home where she resided alleging that they were negligent after she suffered serious injuries from a fall. The lawsuit was filed against Glenwood Healthcare & Rehab Inc. in Glenwood, IL.

Injuries from Falls

Falls can lead to severe injuries in the elderly. Scrapes, bruises, and broken bones are very common injuries that result from falls. One of the most serious types of injuries is a hip fracture. A hip fracture may necessitate surgical treatment and has a lengthy recovery time. Head trauma is also a serious concern for the elderly. Older individuals take a longer time to heal and while healing they may encounter other difficulties or complications that cause a health decline.

Continue reading "Woman Injured by Fall in Nursing Home Files Lawsuit" »

July 21, 2015

Collecting Money From Your Judgment

by Levin & Perconti

In our society, people often say, “You should sue him,” when a business deal goes wrong, or when someone suffers a personal injury or property damage. But suing someone, and even winning, is only the first half of the process. The second half, and often the hardest part, is collecting on the judgment award and actually receiving money for the harm caused.

Collecting A Judgment in Illinois

The process of collecting on a judgment starts with learning what assets the debtor owns. Typically, there are four main sources of money that a creditor can look to for money from an individual debtor, including (1) the debtor’s bank accounts; (2) the debtor’s personal property; (3) the debtor’s paycheck; and (4) the debtor’s real property.

Citation To Discover Assets

Continue reading "Collecting Money From Your Judgment" »

June 8, 2015

Arbitrators Accused of Unfairly Favoring Nursing Home

by Levin & Perconti

In states across the country, there have been battles between states and nursing homes, and between nursing homes and residents or their loved ones, over the use of arbitration provisions in nursing home contracts. When a family rushes a loved one in for care, particularly when they are frail or just came out of the hospital, they are likely to sign on the dotted line relatively quickly to ensure that the patient receives their care immediately. While it is on these parties to generally understand what is in these contracts, the same cannot be said for the specific arbitration provisions. These clauses are intended to require nursing home residents or their loved ones to waive their rights to take legal disputes with the facility to a jury trial in a court, and instead submit to binding arbitration, which is an out-of-court alternative dispute process.

While there have been conflicting decisions as to the validity of such contractual provisions as jurisdictions differ and certain provisions are considered on a case-by-case basis, some court shave found this mandatory arbitration to be a broad and ambiguous requirement which residents and their families, unless well-trained lawyers, could not impliedly or expressly consent to because they cannot truly understand the scope of what they are agreeing to waive. It is generally feared that arbitration provisions favor nursing homes who can hire high-powered expert attorneys, and because arbitration involves a separate set of rules, and the decision is made by one or a few arbitrators, as opposed to a jury of peers as contemplated by the U.S. Constitution.

Continue reading "Arbitrators Accused of Unfairly Favoring Nursing Home" »

June 5, 2015

New York Facility Faces Major Cover-Up Charges

by Levin & Perconti

The abuse and neglect of nursing home and long-term care facility residents can result in injury, illnesses, injuries, or even deaths. It can lead to administrative and civil liability, or even criminal charges in particularly egregious circumstances. However, there is another act that can truly threaten the integrity of the nursing home system and the safety of patients and residents: the cover-up. On top of committing acts of abuse, financial exploitation, or neglect of nursing home residents, the active cover-ups of these acts make things even worse, and can certainly lead to further civil and criminal liability, such as obstruction of justice. We have blogged about attempted cover-ups before, including a recent case in Illinois. Another appalling case comes out of Western New York, near the Syracuse area.

Continue reading "New York Facility Faces Major Cover-Up Charges" »

May 14, 2015

Abuse of Dementia Patient Leads to $1.2 Million Jury Award

by Levin & Perconti

Out of Oklahoma, which is one of the worst states in the country for nursing home quality of care, comes another incredibly sad story of nursing home abuse that has resulted in some form of justice, though not one that can ever change what happened. The daughters of a 96 year old nursing home resident, who suffered from dementia, sued the facility when they discovered evidence that their mother was abused by two staffers at the nursing home. The lawsuit proceeded in federal court, and resulted in a jury verdict for $1.2 million. As reports indicate, defense attorneys for the nursing home intend to appeal the verdict, which they characterized as “excessive.” The staffers were fired, but that was the least of their punishments. One of the accused aids, who reportedly was in the U.S. illegally, was arrested and charged criminally, and eventually plead guilty and was sentenced to serve two years behind bars. The other worker fled.

The Nursing Home Abuse

Continue reading "Abuse of Dementia Patient Leads to $1.2 Million Jury Award" »

April 29, 2015

Connecticut Nursing Home Workers Vote to Strike

by Levin & Perconti

The nursing home industry in many areas has been challenged by complaints of abuse and neglect by aides, state and federal surveys and investigations with the possibility of sanctions that go so far as denying licensure, as well as the uncertainty as to sources of funding to pay for care at these facilities. These issues and accompanying discussions are often framed in terms of the lasting and consequential effects on facility residents, and the disciplinary actions taken against a nursing home and/or specific nurses or aides. In Connecticut, however, there is news of specific action that nursing home workers are taking to protect themselves from their employers and a threatening state budget proposal.

In the state of Connecticut, in earlier April, a significant 3,500 employees from 27 different nursing homes agreed to go on a workers’ strike starting the last week of the month. Local reporting details the primary motive as protesting the state government for its budget that may threaten reimbursements to nursing homes through federal insurance programs like Medicaid, which is typically a tremendous source of income for nursing homes. Connecticut’s governor has proposed a budget that would eliminate a previously planned cost-of-living increase that is factored into reimbursements to medical providers for care given to Medicaid insurance recipients. As indicated in an article, approximately 70% of nursing home residents in Connecticut are covered by Medicaid insurance, and cuts to that would obviously take away from money going to the facilities, which in turn are used to in part pay employees’ salaries.

Continue reading "Connecticut Nursing Home Workers Vote to Strike" »

April 22, 2015

Nursing Staff Fails to Notify Doctor of Severe Symptoms

by Levin & Perconti

When it comes to vulnerable individuals, particularly the elderly or infirmed, pneumonia presents not just an illness, but a condition that could lead to death if left unattended by doctors. In western Minnesota, an elderly nursing home resident was hospitalized after he was found to have numerous open sores on his body, very dry skin, and exhibited symptoms of malnourishment and dehydration. Prior to being rushed to the hospital, the nursing home staff gave him extra oxygen as well as cough syrup to help with his breathing problems as well as his changing body temperature. They added Tylenol to the mix as well, and used a cold cloth to try to control his temperature. When he got to the hospital, he was not responsive. Hospital staff diagnosed the pneumonia there, and noticed that he had very little food or liquid, in addition to the clear sores and dryness on his skin. Sadly, within three days he had succumbed to the pneumonia.

Staff Never Notified the Doctor

There is a particularly disturbing aspect of this case that will undoubtedly put this nursing home in a bigger spotlight, and should be of tremendous concern to nursing home consumers and their families. While clearly there must have been questions as to the chosen methods to treat the patient – Tylenol, cough syrup, and oxygen – for pneumonia symptoms, the astounding discovery was that nursing home staff allegedly failed to even once consult a doctor about the patient’s symptoms that affected his body temperature and breathing abilities.

They merely tried to treat the patient themselves until a more heightened temperature and worse breathing finally prompted them to do something else and send him to the hospital. However, too much damage was possibly done, and he eventually passed away. To add to this sad story, the victim’s family was not notified of this man’s bad condition, either, until the night before he was hospitalized when they were told he had a cold and high temperature.

History of Documented or Alleged Negligence

According to newspaper reports, the owner of this particular nursing home operates a total of 26 facilities in Minnesota alone, and nearly 300 across the country. This one patient is one of others who have problems as a result of alleged negligence at other facilities owned by this particular owner. As is typically the case when incidents of abuse or negligence occurs and a facility is put on warning or subject to sanctions, this facility reportedly submitted a plan to make fixes and re-train staff with regard to when to notify a doctor of problems. Notably, the victim’s doctor was reported as having said he expects to be notified of a “patient’s failing condition” days prior to resorting to hospitalization.

Scrutinize Nursing Homes Carefully

This particular facility’s apparent history of negligence and consequent citations makes it clear the importance of consumers researching facilities as thoroughly as possible through state health or aging departments as well as through the federal government’s Centers for Medicare and Medicaid Services, which publishes ratings on its Nursing Home Compare website. The alleged negligence in this Minnesota case is horrendous, as the patient is said to have not received water or food, did not have adequate oxygen, and was left with open sores which can initially develop due to being in the same position for prolonged periods, a failure to change bedding, and/or failure to adequate bathe a patient and can only get worse without cleaning and proper treatment and dressing. Staffers seemingly lacked the training to know best when to consult a doctor when a patient had deteriorating circumstances. Properly trained and educated nursing home staff is crucial to the proper care of residents.

See Related Blog Posts:

Selecting the Best Nursing Home for Your Needs

Investment Firm Takes Over Family-Run Nursing Home

April 20, 2015

Daughter of Nursing Resident Killed by Overdose Calls for Independent Investigation

by Levin & Perconti

As we have discussed in multiple posts, and as has been followed in the news in recent weeks, a 98-year old resident of a nursing home in South Holland, Illinois, died in a mysterious incident in early February 2015. At first it was unclear what had happened, and initially news outlets reported that the victim was one of six residents who experienced abnormal blood pressures and respiratory issues.

However, the other five residents initially survived those ailments, while the 98-year old resident passed away (the causes of their problems were as yet deemed unknown; by early March, two of the other victims – aged 88 and 98, had passed away, though any connection to this initial incident is unclear). Fire officials ruled out any gas or carbon monoxide poisoning. Authorities opened investigations into the matter, including conducting a toxicology test. A nurse at the facility was suspended after these latter deaths.

Continue reading "Daughter of Nursing Resident Killed by Overdose Calls for Independent Investigation" »

April 15, 2015

As Elderly Population Grows, Long-Term Insurance Scales Down

by Levin & Perconti

We have written before about how the elderly population will continue to grow in the years to come, as the members of the enormous baby boomer population enter their golden years. As they grow older, the need for various levels of third-party care will be necessary or at least preferred to keep them as healthy as possible and in some cases allow them to lead relatively independent lives. As this segment of the population grows, the costs of caring for so many will increase, possibly putting a strain on finances and the abilities of insurance companies to adequately cover care for their policyholders.

Life Spans & Insurance

In recent decades, in addition to health insurance, other long-term insurance policies such as life insurance were considered essential parts of planning ahead for the eventual need for care in later years. In recent news, however, this fact-of-life type of insurance is on the cusp of becoming much less affordable, and thus much less available to the growing crop of elderly Americans. The expectations about life spans of policyholders and how much it would cost to care for them influenced policy provisions and premium rates, yet this sector has apparently hit a breaking point because those past assumptions have not matched the current reality as costs increase for an aging but still living part of the population.

Continue reading "As Elderly Population Grows, Long-Term Insurance Scales Down" »

April 2, 2015

West Virginia Judge Will Not Recuse in Nursing Home Case

by Levin & Perconti

We previously posted about a fascinating situation in the West Virginia judicial system involving an apparent conflict of interest by a judge on the state’s highest bench, and a nursing home case. The Chief Justice of the West Virginia Supreme Court, the state’s highest court, was called upon to recuse herself from a case before the court that found against a nursing home at the trial level and resulted in a $90 million award to the family of an elderly nursing home resident that passed away after nearly three weeks at the facility.

There was conflict over whether the resident’s dementia led to her ultimate death, or if it was dehydration from a possible neglect by nursing home staffers that led to her death. The high court upheld the ruling against the Heartland Nursing Home, also refusing to throw out punitive damages, and modifying the damages award to reduce it to about $48 million. The Chief Justice wrote the majority opinion rendering the decision in the plaintiff’s favor. The case went up on appeal in part on the argument that state law capped certain medical malpractice damages. The controversy over the Chief Justice’s involvement in that case centered on over $30,000 in campaign contributions she received for her re-election campaign and that was coincidentally arranged for by the attorney of the plaintiff in the Heartland case, who himself reportedly made a contribution of $1,000. This attorney also bought a Learjet plane for $1 million from the Chief Justice’s husband.

Continue reading "West Virginia Judge Will Not Recuse in Nursing Home Case" »

March 2, 2015

Resident’s Restraint and Abuse Raises Important Nursing Home Safety Issues

by Levin & Perconti

In Scranton, Lackawanna County, Pennsylvania, a former nursing home aide will go to trial over accusations that several months ago the staffer, who was a certified nursing assistant, assaulted one of the Gardens of Green Ridge nursing home residents. The allegations include that the young nursing assistant physically restrained the 76-year old female resident by holding the resident’s room door closed to keep her trapped inside the room. In addition to this particular restraint, the nursing home aide has also been accused of physically assaulting the patient by dragging her around by her wrists and arms, which resulted in bruising in those areas as well as on her shoulders.

It has been stated that the nursing home has cameras that have captured the alleged abuse and physical restraint, and that witnesses testified that they heard the resident hit the aide, and that the resident yelled at the aide to not touch her. However, the accused’s defense attorney indicated that the aide was simply following orders from a superior to keep the patient in line because she was agitated. Notably, the patient suffered from dementia. As the trial approaches, the one good piece of news is that the patient has been moved to a different nursing home, and is reportedly doing all right.

Continue reading "Resident’s Restraint and Abuse Raises Important Nursing Home Safety Issues" »

February 23, 2015

Psychiatrist Settles Pleads Guilty and Settles Civil Claims

by Levin & Perconti


A few months ago, an Illinois psychiatrist was suspended indefinitely from practicing because of his alleged abuse of an antipsychotic drug called clozapine. Dr. Michael J. Reinstein prescribed clozapine to more than half of his patients at nursing homes as well as mental health facilities. Clozapine is used to keep patients sedated when they become irritable or violent – many of them suffer from dementia or other ailments, and antipsychotic drugs such as clozapine are used to hold them down. Such drugs can be considered an unacceptable form of chemical restraint that advocates have fought against in recent years in favor of more humane methods that avoid drug dependency.

Continue reading "Psychiatrist Settles Pleads Guilty and Settles Civil Claims" »

February 2, 2015

Who is Keeping Track of Your Loved One?

by Levin & Perconti

Many across the country, but especially in the northeast and in Western New York, recall the pre-Thanksgiving deluge of snow that completely buried the greater Buffalo area, and left businesses closed and residents shut in their homes. The snow fall was so deep and the roads so buried and treacherous that it was nearly impossible to get around. Some facilities even had to be evacuated. Even the Buffalo Bills had to escape to Detroit, Michigan, to play its game that weekend that was supposed to be played in Buffalo.

Amidst the madness, a nursing home in the Buffalo area was forced to evacuate its more than 170 residents as well as staff personnel because the snowfall was so heavy that local building and fire officials thought it might actually collapse the building’s roof, which is what already had happened to an adjacent building. This of course could lead to injuries and burying the residents in mounds of snow, so it was a seemingly prudent and responsible decision by the facility’s management to protect its residents.

Continue reading "Who is Keeping Track of Your Loved One?" »

January 9, 2015

Senior Chicago Resident Dies from Building Fire

by Levin & Perconti

In the course of examining the numerous unfortunate cases of abuse and neglect of patients at nursing homes and long-term care facilities, sometimes other issues, even basic ones, get lost in the shuffle but are very significant when it comes to caring for patients. In addition to meeting adequate standards of care in accordance with government regulations and the ever-evolving patient bills of rights, nursing homes also have a duty to ensure even the most basic safety for its residents irrespective of medical treatment.

This includes making sure that the building that houses the patients is itself safe and up to the proper safety and fire codes; that all fire alarms and sprinkler systems function properly; and that evacuation protocols are designed to ensure residents are removed from the building in the event of fire or other imminent danger. In recent coverage about the deficiencies at Sauk Valley nursing homes, it was reported that in addition to negligence and a lack of care, some of the nursing homes even failed to properly follow building and fire codes.

Continue reading "Senior Chicago Resident Dies from Building Fire" »

June 1, 2014

Prevalence of Credit Card Fraud Against Elderly Population

by Levin & Perconti

Various news outlets reported recently on a case of financial predatory behavior which required the involvement of law enforcement. At a Utah assisted living facility, a Certified Nurses Assistant was accused of significant financial fraud against an 88 year old resident patient. The woman was accused of stealing two credit cards from the resident, one of which was used 15 times in mid-May 2014. On that one card the nursing assistant racked up charges of $2,963.14. She also used the second stolen credit card about 9 times just prior to use of the first, racking up $576.29 in charges. Police arrested and charged the nursing assistant on a third degree felony count of exploitation of a vulnerable adult, as well as three (3) third degree felony counts for unlawful use of a finance card, as well as a class-A misdemeanor charge of theft.

Police arrested the nursing assistant on evidence from security camera footage that captured her making purchases at local businesses where the two credit cards were used. Police showed this footage to a manager at the nursing home, who positively identified the nursing assistant. When police were able to adequately connect the dots, the jig was up for the allegedly abusive (financially) nursing aide. Her bail was set at $21,943.

Elder Financial Exploitation
This case adds on to the long list where nursing home facility staff members take advantage of their residents. Rather than care for them, they seek to enrich themselves. In Utah, as in many locations, exploitation of a vulnerable adult is a serious crime. In Utah, for example, it is defined as the act of preying on a person who is age 65 years or older, or a person who is 18 years of age or older and is physically or mentally impaired such that they might be unable to protect themselves, take care of their own basic necessities like food, shelter, clothing and healthcare, and are otherwise unable to perform basic tasks of everyday living. Furthermore, it includes an adult that is unable to fully understand the circumstances and implications of an abusive, neglectful or exploitive scenario such that they are unable to remove themselves from the situation. By taking advantage of the resident patient’s situation in which she required care because of her age and inability to take care of herself, the nursing aide grossly violated the law that intends to protect patients like this one.

Such acts are not just restricted to swiping credit cards. They may include stealing cash, or taking control of a resident’s bank account by stealing or coaxing the information out of him or her. When a family puts a loved one in a nursing home or assisted care facility, they entrust the care of that person to professionals who are not just trained in supporting the patient medically, but also entrust that the loved one will not be taken advantage of during their stay. Financial fraud or theft constitutes an egregious violation of a nursing home resident, and cannot be tolerated.

See Other Blog Posts:

New Example of the Importance of Evaluating a Nursing Home in Illinois

Case Study: Theft and Elder Financial Abuse in Nursing Homes

May 31, 2014

Reports of Elder Abuse at a Kansas Nursing Home Involving Several Staff Members

by Levin & Perconti

We have previously discussed how both federal and state agencies have a hand in regulating nursing homes where those nursing homes at least in part accept federal money, typically through Medicare of Medicaid. Often these regulatory and enforcement duties will overlap, and authorities on the federal and state levels work together through information sharing to weed out abuse and neglect, and bring nursing home facilities under tight scrutiny to ensure they operate in compliance with laws, rules and regulations, and that patient residents receive the proper care and home environment they need and deserve. Another example of the crossover between federal and state authorities occurred in Kansas, where a nursing home was fined for incidents of neglect and abuse of patient residents. This unfortunate case also served as an example of the importance of unannounced surprise inspections of facilities to properly assess them to ensure they operate appropriately even when no one is watching.

Elder Abuse Allegations
In a very saddening turn of events, a nursing home in Andover, Kansas was recently exposed for allegations based on neglect and abuse residents. The Kansas Department for Aging and Disability Services notified the nursing home of the allegations after a department inspector interviewed more than a third of the patient residents there. The inspector conducted these interviews on a surprise visit to the facility, which is typically how agencies conduct reviews of nursing homes (Illinois is no different). This also came after a report had been made to local police about abuse, as the police report spurred the state agency to act on this particular facility.

Continue reading "Reports of Elder Abuse at a Kansas Nursing Home Involving Several Staff Members" »

May 27, 2014

Abuse at Understaffed and Underperforming Nursing Homes

by Levin & Perconti

Nursing home or long-term care facility negligence or abuse can often amount to a significant award of damages to a plaintiff. Such damages awards will often include nominal damages for the actual liability based on negligence or intentional abuse, as well as punitive damages that can punish the facility and make a statement as to how severe the abuse was against the plaintiff. A recent jury decision in Colorado demonstrates this where a plaintiff and his family were awarded $3.3 million in damages, comprising of $300,000 for the actual negligence, and $3 million in punitive damages against the facility. This case was the second in approximately one year that families suing the facility won an award of damages.

The Case Details
In 2013, the family of an 82 year old patient resident of a Colorado nursing home sued the facility alleging that over the course of his three years there, he suffered from many bed sores, skin tears and abrasions, infections (including from E. Coli as well as a urinary tract infection), and he was dehydrated and malnourished. He also significantly lost weight and at one point lost the ability to use his arms and legs. The complaint alleged that this was a result of the facility staff’s failure to give the level of care that the patient needed, particularly given a medical status that heightened his needs. The plaintiff suffered from mild retardation as well as dementia, among other problems. The staff failures to pay him enough attention and to do the very things they were hired to do to keep the plaintiff comfortable and as healthy as possible under the circumstances. The family also alleged violations of the Colorado Consumer Protection Act by the facility because it advertised itself as a top rate nursing home when it allegedly knew full well that it could not give the proper care and treatment to patients to keep them healthy and well.

Continue reading "Abuse at Understaffed and Underperforming Nursing Homes" »

May 17, 2014

More Claims of Veterans Administration Abuses

by Levin & Perconti

In the aftermath of the scandal surrounding the Phoenix, Arizona Veterans Affairs Hospital, more reports of horrendous management that has affected the health and well-being of our veterans have emerged in other places. As discussed in a prior post, the Phoenix scandal involved keeping veterans in need of medical help on a secret waiting list as opposed to an official waiting list because of the serious backlog the facility faced in seeing and treating many of the veteran patients. Because the facility could not meet standards for efficient and timely treatment, rather than have it documented, they kept a secret list to track these veterans and then only transferred the patients to an official list when it was clear that they could be seen within a reasonable time from the moment of placing them on the official list.

Most recently, in light of the news about the Phoenix facility, the Chicago Tribune reported that federal auditors investigated allegations at a Veterans Affairs Hospital near Maywood, Illinois in western Cook County that the facility there also kept secret waiting lists to falsely demonstrate that it met VA regulations on timely treatment. Meeting such standards would ensure senior officials could earn bonuses for the hospital’s performance, which are based in part on the speediness of seeing veteran patients. These particular allegations came to light from a social worker, and also filtered through the local union for federal government employees before reaching the media and federal investigators. The investigation is in its nascent stage, as the allegations remain just allegations, and the whistleblower has not yet brought forward documentation to back these claims out of fear that hospital workers could experience retaliation as a result of the disclosures. Hospital leaders have disputed the allegations at the facility that has seen over 54,000 veterans in the last year, stating that any cited evidence cited (although not presented) does not actually consist of separate waiting lists. VA Inspector General investigators may look into it at the behest of U.S. Senator Mark Kirk of Illinois.

Legal Claims
While investigations into the Phoenix scandal are ongoing, and investigations are only just commencing into the allegations of secret wait lists at the Illinois facility, there will soon come the time for the affected veterans and their families to consider legal action for damages. Plaintiffs would invariably bring these lawsuits under the Federal Tort Claims Act.

The Federal Tort Claims Act (FTCA) generally allows private citizens to sue the United States in federal courts for injuries sustained as a result of a tort committed by someone acting on behalf of the federal government or in their capacity as an employee of the federal government. This is not universal coverage as there are certain exceptions, such as for law enforcement activity. However, those veterans who have not received adequate care as a result of the absurdly long wait time, and those families of veterans who died as a result of not receiving the necessary care, may have actionable cases against the Department of Veterans Affairs for damages caused by its employees’ negligent handling of wait lists, or in this case intentional cover up of that improper procedure. Those who were injured should strongly consider their rights to claims. No one should be treated this way, not least of all the brave men and women that served our country with honor and distinction, and have asked little else of us.

See Other Posts:

5 Tips for Detecting Elder Abuse or Neglect in Nursing Home Facilities

Negligent Caregiving at Hospital Results in $6 Million Levin & Perconti Settlement

May 13, 2014

Secret Lists at the VA

by Levin & Perconti

In recent weeks news broke out of Arizona that a Veterans Affairs Hospital failed to follow up with veterans seeking medical care within a required amount of time, and in many situations ignore veterans who needed an immediate check-up, medication, treatment or other assistance. Many of these veterans suffered worse illnesses and some died as a result of not getting the adequate care they needed. It is awful enough how the VA in general has a backlog on serving our brave veterans, who risk their lives to defend our country and deserve our care and concern when they return home, and for the rest of their lives. It was a recently retired physician from the facility who blew the whistle on this scandal to the Arizona Republic after also attempting to go through Congress as well as the VA’s Office of Inspector General.

What is worse in this current scandal, is how this particular Veterans Affairs Hospital in Phoenix maintained “secret waiting lists” that effectively kept secret that these men and women were awaiting medical care. When the facility could forecast that it would be able to see a veteran patient within a certain time that conformed to VA regulations, it would move that person onto the official waiting list for the first time to make it seem as if his or her wait time was adequate and reasonable. This official list is what is reported to the main agency and any other relevant bodies in Washington, D.C., and the Phoenix facility sought to make things appear as if everything was okay. On top of this, they shredded evidence of the secret lists to cover up the failure to adequately care for veterans.

These veterans waited months on end for the care they not only deserve but to which they are also entitled. According to at least one report, between approximately 1,400 and 1,600 veterans had to wait months for their doctor visit. Many died as a result of not being seen or getting the care they needed, with some reports showing that at least 40 individuals died while waiting for doctor appointments at the Phoenix hospital. Top administrators knew about it and did nothing to correct it. Senior officials at the facility were also left in their positions in spite of congressional knowledge and the agency’s Inspector General investigation.

Adding to the outrage is one recent report based on a review of public records from the VA facility in Phoenix that show its staff earned relatively high salaries bonuses. While not yet reported or corroborated by other outlets, the article details how the hospital apparently spent hundreds of thousands on interior and exterior aesthetics around the facility, and high executive physicians make in the mid-$350,000s with some nursing staff making in the mid-$140,000s.

Veterans Affairs Secretary Eric Shineski has vowed to take action on this problem and will not resign. In the meantime, veterans affected by this issue and their families will likely consider legal action at some point. Such action would appropriately come under the Federal Tort Claims Act, which would grant these victims a private right of action against the federal government – specifically the VA – for their actions that has led to more permanent health problems and even death for veterans. In an era where long-term care facilities and nursing homes have committed egregious negligence and abuse against their patients, it is furthermore disheartening that a facility dedicated to treating veterans has similarly committed such wrongful omissions.

See Other Posts:

5 Tips for Detecting Elder Abuse or Neglect in Nursing Home Facilities

Negligent Caregiving at Hospital Results in $6 Million Levin & Perconti Settlement

May 12, 2014

Making Claims Under the Federal Torts Claims Act

by Levin & Perconti

In cases of widespread nursing home and long-term care facility abuses and negligence against patient residents, those patients and their families will often have recourse through tort actions for injury under relevant state laws. As previously discussed, there may also be False Claims Act cases to be made where companies operating nursing homes that receive federal dollars through Medicare and Medicaid fail to follow the law, rules or regulations in implementing those funds into their care of the patient residents. Such misuse or fraud of government funds can result in a recovery for the plaintiff and the government. On top of this, patients of a government operated facility, such as a Veterans Affairs hospital, who suffer injury or death as a result of negligence or abuse may bring a claim for damages under the Federal Tort Claims Act (FTCA).

The FTCA is the prime law under which private individuals can sue the government for injuries sustained as a result of the government’s actions or inactions, or those of employees or other individuals working on behalf of the government, such as a VA hospital administrator or doctor. In general, those individuals will not be subject to liability; only the government itself will. In light of the recent reports on the secret waiting lists at the Phoenix VA facility that led to further injury to veterans as well as the deaths of at least 40 veterans, those veterans and their families may very well have the right to sue for damages under the FTCA.

In order to demonstrate liability and a claim for damages under the FTCA, a helpful summary of the law outlines the four elements that must be demonstrated. These generally conform to the requirements in all tort law to show a tort occurred:

(1) Injury or property damage by a federal government employee;
(2) Federal government employee at the time performed his or her official duties;
(3) Federal government employee was negligent or wrongful in his or her acts;
(4) The negligent/wrongful act caused the injury or damage

Any veteran who suffers damages as a result of abuse or inadequate care at a government operated facility (a VA hospital, military hospital on or off base, or a federally supported clinic) and who is not on active military duty is eligible to file a claim. It is notable that under Supreme Court precedent, active duty military members are not allowed to make an FTCA claim since injuries are presumed to be a part of their service, although some in Congress has wanted to give active military access to remedies under the law. This also bars claims by veterans for injuries resulting from negligence committed during their active duty, but which were not symptomatic or apparent until after discharge or retirement from service. Family members of active military are permitted to sue under the FTCA for injuries received from treatment at a government-sponsored hospital, clinic or facility. With regard to government funded clinics, victims of negligence may also have a claim under the FTCA even if the treating physician or nurse were not government employees, because by accepting federal money, the clinic’s employees are unofficially considered government employees for the purposes of the FTCA.

Just as a resident patient of a nursing home can bring claims for injury due to negligence, so can patients at government-operated facilities or government-funded clinics. Such claims are more than likely to arise in the recent Veterans Affairs scandal. In filing this claim, it is important to understand what form you must use, where to file, as well as implications for how such recovery may affect any disability claims you make.

See Other Posts:

5 Tips for Detecting Elder Abuse or Neglect in Nursing Home Facilities

Negligent Caregiving at Hospital Results in $6 Million Levin & Perconti Settlement