Illinois Nursing Home Abuse Blog

Traditional nursing homes--known as “skilled nursing facilities”--are able to provide a degree of actual medical care at the facility itself. Of course, caregivers provide support--like making meals, washing clothes, help with grooming, and more. But they can also provide more sophisticated treatments. However, there is a limit to the scope of care available in these locations. When a serious medical emergency strikes, it is critical that the seniors in the facility be taken to an actual hospital to receive in-depth treatment or emergency services.

Sadly, there are circumstances when caregivers at a nursing home do not act in a timely fashion to ensure their residents receive the hospital aid they need. That seems to be what happened in a matter which led to a trial that ended last week.

Nursing Home Neglect Jury Decision
As discussed in an Arkansas Times story, the victim in the case was a 76 year old nursing home resident who lived at the defendant-facility in April of 2008. She was only at the home for a pair of weeks. The senior suffered a stroke and was expected to stay for a month-long stint during her recovery. But about halfway through that stay the woman awoke in the night with very severe abdominal pain. She had no bowel movements and was sweating profusely.

A doctor was called the next day to visit her, and after his examination he issued an order that the senior to be taken to a local emergency room. Because the resident had a history of abdominal abscess (as well as the recent stroke), proper care required that she received more advanced medical care than could be provided in the nursing home itself.

Even though the director of nursing received the transfer order from the doctor at 3:34pm that afternoon--she did not take immediate action. Instead, because she was leaving the facility for the day, she faxed a copy of the order to another part of the facility. Sadly, no one went to the location where it was faxed, and the order was ignored.

According to the story, the suffering senior was simply left to sit in her room--even though she was in so much pain that she was screaming constantly. She was making so much noise that other residents complained. A few hours later, around 10:20pm that night, the senior was found in her room--she had died.

A lawsuit was filed by the senior’s family. The case went to trial recently, and the jury issued a unanimous verdict in the plaintiff’s favor after hearing all of the details of the case. They awarded the family $5.2 million after finding the home guilty of negligence, medical malpractice, and basic violations of the rights of residents. It remains unclear if the family will receive the full award, as various arguments were made about the parent company’s immunity from the misconduct of the individual home.

This horrific case of a senior suffering for hours before dying because of an obvious error is an example to why we must continue to fight for the rights of nursing home neglect victims. No one should ever have to go through this agony as a result of basic caregiving lapses.

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State Supreme Court Mandates Arbitration in Nursing Home Death Case

Accountability for Failed Response to Nursing Home Abuse

Nursing home neglect and abuse lawsuits are guided by state and federal statutes, administrative/regulatory rules, and common law principles. Attorneys working on these cases may draw on any of these in order to ensure proper accountability for nursing home owners, operators, caregivers, and others whose mistakes (or intentional actions) may cause harm to seniors.

Considering the various sources of law, sometimes these legal cases can be quite complex. At times, the basis for accountability is not straightforward. For example, most understand that an individual caregiver can be held responsible when they intentionally harm a senior. However, rules about oversight of those employees may also mean that the operators of a nursing home (or owner/shareholders) may similarly be accountable for the actions of their employees.

In addition, facilities can also be held accountable in various ways not only for the damaging mistakes they make, but also for their response (or failed response) to claims of neglect or abuse. In other words, the poor response itself is a separate form of negligence, on top of the underlying mistreatment.

Citations for Failing to Report Abuse
That principle was in play in sanctions doled out to one facility as reported by the News-Bulletin. According to the report, the facility in question was fined and placed on state-mandated probation as a result of its failure to report neglect allegations and implement changes to ensure abuse is not perpetrated on residents. Importantly, this punishment was not handed down because of the underlying potential abuse, but simply for the failure to follow appropriate steps when made aware of the allegations. The action is a testament to the seriousness that we all place on ensuring proper treatment of seniors.

The particulars of this case are similar to that which exist in facilities throughout Illinois. It seems that at least three seniors may have been physically and verbally abused. Specifically, several members of the caregiving team at the home knew of “intentional rudeness, refusal of care and services, and rough physical treatment of residents.”

Sadly, instead of stepping up and ensuring the problem was fixed, those caregivers turned the other cheek and did not take action.

This inaction occur at nursing homes across the country every day. It is one thing for outside observers to stay mum when they have suspicions of mistreatment. We encourage all those who suspect neglect to say something, but it is understandable that it takes a bit more for an outsider to recognize problems and speak up. Conversely, there is no excuse for an actual caregiver to remain silent when they know that a co-worker is harming residents. The very act of not coming forward is itself an act of neglect that needs to come with accountability. Nursing home abuse should never be swept under the rug, least of all by those best trained to recognize poor care.

The attorneys at our firm have decades of experience vindicating the rights of nursing home residents and their family members. Please get in touch without our team today if you have questions about mistreatment of an elderly loved one close to you.

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Arbitration Fairness Act of 2013 Introduced in Congress

Levin & Perconti Filed IL Nursing Home Lawsuit Against Applewood Rehabilitation Center

Seniors in nursing home are in a fragile state of health. Sometimes nursing home providers will use that to argue that subsequent injuries or illness that residents contract are expected and unpreventable. In most cases that is nothing more than an excuse. The truth is that the resident’s medical vulnerabilities are the very reason why they are in the home to begin with, and the reason why care providers need to be incredibly vigilant about controlling all of the risk factors to allow the senior to remain in as good a condition as possible.

When proper care is not provided, it may be a sign of nursing home neglect, and residents and their families may be able to seek legal accountability. In many cases, the root neglect is in the action (or inaction) of care providers--like failing to monitor a change in condition or not providing supervision which leads to a fall. In other cases, the underlying issue is more complex, perhaps involving use of defective or dangerous products in resident care.

Dangerous Mattress Covers
For example, the U.S. Food and Drug Administration (FDA) recently issued a safety alert on some products that may be used in nursing homes, leading to illness and death: infection-riddled mattress covers.

The alert was directed at long-term care providers, nurses, doctors, aides, and others who have control over the care setting of medical patients and skilled long-term care residents. The Administration explained that they wanted to warn these individuals that “damaged or worn covers for medical bed mattresses can allow blood and body fluids to penetrate medical bed mattresses, posing a risk of infection to patients.”

As with so many medical objects, the mattress covers themselves are intended as a safety tool--to prevent substances and fluids from seeping into the core of the mattress. Yet over the past few years, the FDA has received hundreds of reports where the mattress covers failed in that role, allowing infected substances from making their way onto the mattress. This was usually caused by tears in the cover, a thinning of the material or improper use, with exposed portions or opening near the zipper.

All of this exposing the individual using the bed, like nursing home residents, to infection risk because of coming into contact with the body fluids of another. Considering seniors inherent vulnerability, those subsequent infections can be life-threatening. Because this risk is known, it is critical for caregivers to ensure these cover defects are caught and senior residents are not placed in risk situations.

The FDA safety alert includes a list of recommendations that caregivers can use to ensure that the covers do not pose a risk. In addition, the Administration includes contact information where others can report concerns and problems with mattress cover use.

Chicago Nursing Home Neglect
Providing inadequate care to local nursing home residents should never be tolerated. However, our neglect attorneys know that it happens every day in Chicago and throughout state of Illinois. The problems can range in scope from outright abuse to sloppy caregiving--like the use of defective mattress covers. If you suspect such care at a nearby facility, please don’t stay silent. Stand up and demand accountability.

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Illinois Nursing Homes & Special Focus Facility List

Defending Against Nursing Home Arbitration Clauses

Honesty is always the best policy. That is true is so many facets of life, from politics and family relationships, even to things like nursing home care. Nursing home residents and their families do not expect perfection when it comes to long-term care giving. But they do expect a commitment to providing the best care possible and openness if any sort of adverse event occurs. Time and again, however, nursing home owners and operators not only fail to ensure elder neglect is prevented, but they try to cover up their errors or sweep problems away.

This should never be tolerated.

State regulators in Illinois and throughout the country appreciate that ensuring proper response to adverse events--falls, development of pressure sores, outright abuse--is just as important as preventing the problem itself. In other words, not only should things like pressure sores be prevented, but facilities must be required to act in a timely fashion to report the sores and otherwise make relevant parties aware of the problem.

Sometimes there may be perverse incentives to do otherwise. For example, with pressure sores, many nursing homes may be tempted to hide the problem for as long as possible, fearing the consequences of their discovery. This only leads to further suffering for the resident.

All of this is why there need to be severe consequences for failing to prevent the mistreatment and not being forthright when troubling situations arise. The lives of nursing home residents can be made better by placing emphasis on exposing cover-ups and punishing those facilities who try to hide ill-events.

Failing to Report Sex Abuse
Take a recent report from the News-Journal Online. The story discusses a $36,000 fine against a nursing home for their failures to properly respond to a sexual abuse claim. The allegation was first made about a year ago. According to the story, a resident at the home told caregivers that she saw an employee at the facility climb into bed with her roommate. The roommate denied the suggestion. However, state rule required the facility to at least report the claim so that proper investigatory protocols could be followed. The facility did not say anything. This resulted in a $45,000 fine that was eventually reduced to $36,000.

Are the allegations of sexual abuse accurate? It is impossible to say, because the facility did not engage in due diligence to notify regulators and investigate. The fine itself is based on the problems with the response to the claims themselves, let alone the potential merit of the abuse allegation.

It is perhaps unsurprising that this facility does not have the best track record when it comes to providing superior care to seniors. The news article points to the facility’s CMS rating, noting it only receives two (out of a possible five) stars in overall quality of care indicators. The poor review from federal officials is based in large part on below average health inspections. Those inspections revealed excessive medication errors, poor nutrition standards, and deficient infection-control measures.

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Illinois Nursing Homes & Special Focus Facility List

Defending Against Nursing Home Arbitration Clauses

While large verdicts make headlines and seem to indicate the end of a long legal process--in many cases the verdict is just another stage in a prolonged battle. That is particularly true in cases where the verdict is large, where there were hotly contested issues, and/or if there are unique aspects to the case and liability. In those situations, the party that does not receive that verdict that they wish often use every available legal tool at their disposal to appeal and otherwise delay the time when there is a final resolution. In the nursing home neglect context, this usually involves large nursing home companies who fight tooth and nail from having to pay money following unfavorable verdicts.

Manor Care Neglect Judgement
For example, one of the largest ever verdicts against a nursing home company was reached in 2011. The legal case began as a somewhat typical nursing home neglect wrongful death case filed by a man who claimed that his mother’s passing was caused by systematic negligence at the nursing home where she lived. In addition, the lawsuit claimed that the home’s parent company, Manor Car, engaged in regular conduct that led to neglect, like short-staffing facilities.

Eventually, the case went to trial and a $90 million verdict was returned. The reason the verdict was so large was because significant punitive damages were handed down--totaling about $80 million. As reported in the Charleston Gazette, the punitive damages were reached after significant evidence was presented indicating the series of problems at the facility over a period of years that remained unaddressed. For example, in 2011, the home where the original resident in the case died, actually lost its Medicare and Medicaid funding because of a laundry list of quality of care violations. Before that, in 2009 another survey showed that the care at the home was very short-staffed--placing residents lives at risk.

Sadly, as is all too common, these previous signs of risks were mostly ignored, ultimately leading to unnecessary elderly suffering and death.

Appeals
This large verdict was meant as a clear punishment for the egregious conduct on the part of Manor Care to prioritize its own profits over patients care. The hope is that the company will begin making changes to ensure the seniors who rely on their care will be safe. Yet, the company is still fighting to not have to pay the full verdict amount. The first step in that battle was requesting a new trial from the original judge who heard the case. That request was recently denied.

But that does not mean that the appeals process is finished. The company will likely appeal to a higher court, making claims about errors in law. Specifically, among other claims, the company believes that the award is excessive and should fall under the state’s “medical malpractice cap” laws. The appeals court may review the case, focusing exclusively on the size of the judgment and whether or not it comports with current law. If it so desires, the defendant’s could even appeal to the state’s Supreme Court (or the U.S. Supreme Court) after that. Though only a small percentage of cases are ever heard by those courts.

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Understanding Punitive Damages

It is easy to wonder why nursing home neglect is so prevalent. Is it because so many employees at these facilities do not actually care about the best interests of their residents? Unlikely. The vast majority of caregivers are hardworking individuals who do the best with that they are given to provide proper care to the seniors who depend on them. Instead, most of the time the problem is rooted in something more fundamental, lack of resources provided by owners and administrators. When staffing level are too low or there are insufficient supplies and equipment, then caregivers are forced to make difficult compromises.

For example, most nursing home falls are caused by seniors who do not receive the help that they need when moving around, getting out of bed, going to the restroom, and similar basic tasks. When staffing levels are too low, then caregivers are often not able to provide the assistance with these tasks--upping the likelihood of a preventable injury.

It is along the same lines that over-medication often occurs. Overuse of antipsychotic medications, often referred to as “chemical restraints,” remains a very serious problem in many long-term care settings. Even though significant attention has been drawn to the issue in recent years, the issue is far from solved. Far too many seniors medicine that they do not need or doses that are too large, with serious consequences on their lives. Over-medication can be fatal in some instances (particularly for those with cognitive conditions like dementia), and drastically reduce the resident’s quality of life in others. The bottom line is that medication should be used as minimally as possible.

Nursing Home Neglect Citation
But that clear truth is often violated. For example, the Sacramento Bee reported on one facility across the country that received a significant fine as a result of public health official’s discovering over-medication likely led to the death of a former resident. According to the report, the 82-year old resident at issue entered the facility after suffering a stroke that left him partially paralyzed.

While at the facility, the caregivers allegedly over-medicated the resident, making him groggy and otherwise lessening his already diminished functional capabilities. Ultimately, the medication contributed to a fall that the man took from his wheelchair. He suffered serious injury in the fall (including a subdural hematoma), but he wasn’t taken to the hospital until days later at the insistence of his daughter. He eventually died as a result of complications from those injuries.

As a result of this misconduct the state health department investigated the matter. The concluded that state rules were violated and hit the home with a $100,000 fine. It is perhaps unsurprising that this lapse is care was not the first for these long-term care owners. The report indicates that only one year before this man died, the same company faced nearly $30 million in payments for neglect at a separate facility which caused the death of a resident. Unfortunately, shorting of resources leading to resident harm often occurs time and again at the same facilities.

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Elder Abuse Caregiver Had History of Problems

Levin & Perconti Secure Successful Verdict in Illinois Nursing Home Neglect Case

Nursing homes and hospitals often have close relationships. That is because individuals may go to and from one facility to another on different occasions. This relationship works both ways. On one hand, many seniors move into a nursing home only after a serious medical event which places them in a hospital. For example, after a heart attack, stroke, fall at home, or similar event, a senior may require hospitalization. Often, when the immediate injury is healed, the individual is still not in a condition to go back to prior living situation. That is why many seniors move into a nursing home directly into a nursing home.

Alternatively, while nursing homes do provide skilled medical care, they are not capable of providing every medical need for residents. When a nursing home resident suffers a serious medical emergency or an advanced ailment, then the resident must often go back into a hospital. This back and forth may happen several times, and there is therefore a clear relationship between many nursing homes and hospitals.

This is a natural relationship that is necessary to ensure that ailing seniors receive the exact care they need at the right time. However, this also sets up a tangential financial relationship between these entities. Hospitals often want to have the residents admitted for care when finances incentivize it. On the other hand, depending on insurance and payment structures, they often have the incentive to release patients--particularly those who have taken up a room for an extended length of time--into a nursing home. The nursing home obviously likes this as it is another bed filled and money coming in.

Money Over Care
Sadly, these money matters sometimes take priority of the best interest of seniors. For example, My Elder Advocate recently explained how a senior was forcibly ejected from a hospital and brought into a nursing home that he did not want to be at. The senior, an 85-year old man, was in the hospital recovering from an MRSA infection. Interestingly, the infection itself was developed while the man was in the hospital--a common problem plaguing many facilities. Antibiotic treatment are needed to recover from these ailments. Yet, before those treatments were even finished, administrators wanted the man removed from the hospital and brought back to a nursing home.

Bizarrely, several hospital staff members entered the man’s room and forcibly removed him from the hospital. In the rough-handling of the frail 95 pound elderly man, his phone was taken so that he could not call his wife. All of this led to his readmission to the nursing home he lived in previously. There are allegations of nursing home neglect at that facility, where he apparently lost over 2 pounds, suffered seizures, and otherwise did not receive the care he should have been entitled to. Yet, regardless of those allegations and irrespective of his desire not to go back to that facility before his antibiotic treatment was finished, he was forcible required to go back.

This represents a sad example of how resident interests can be ignored for the the interests of the facility itself. This should be fought against every step of the way.

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Elder Abuse Caregiver Had History of Problems

Levin & Perconti Secure Successful Verdict in Illinois Nursing Home Neglect Case

All those working on elder care issues understand that the vast majority of neglect goes unreported. This is a tragedy for two reasons. First, it means that individual seniors are forced to endure pain and suffering without help. Second, the under reporting means that more seniors in the future may be affected by neglect. That is because those who get away with mistreating seniors once are far more likely to do it again. Some caregivers who have a history of skirting requirements are often the ones found responsible for the most egregious cases of abuse and neglect.

For example, take a case out of California. We have already discussed the allegations against a woman who cared for ailing seniors in her own home. Headlines were made when the woman was charged with a felony following the death of one an 88-year old woman who was in her care. The senior had dementia and was under the woman’s care for five years. However, the quality of that care was suspect. That is because the woman developed incredibly serious (Stage IV) bedsores which ultimately led to her death.

Our neglect attorneys have worked on many cases where bedsores are at issue. Bed sores are almost always preventable, and when they arise, caregivers can be held responsible. Most of the time that responsibility comes in the form of civil lawsuits, which, for example, can provide financial compensation to those harmed. However, in more unique circumstances, those involved may also be punished criminally.

That is what happened in this case, as the caregiver who ran this facility is facing a felony. In one of the first such cases of its kind, the woman is now facing “involuntary manslaughter” charges. All told she may face up to twelve years in prison.

History of Problems
Since the initial filing, more and more information has been uncovered about the care provided at the home and the history of the woman now facing serious criminal charges. Perhaps not surprisingly, the woman was on the radar of the state’s department of social services for more than a decade and a half.

Amazingly, the woman was cited over forty times since 1996 for various care deficiencies and violations of state and federal caregiving rules. A Sacramento Bee story on the matter explains how more than half of those violations were “Type A” violations. These are the most serious mistakes which place the health and safety of seniors at risk. Yet, despite all of those problems, the state did not move to take away the woman’s license until after she was criminally charged with the death of her former client.

The case is a sad reminder that by the time a caregiver is actually held responsible for harmful conduct, on many occasions they have likely already harmed others without recourse. It is also a testament to the fact that state regulatory agencies cannot always be assumed to shut down poor facilities or care settings. The reality is that many negligent caregivers continue to provide services to vulnerable seniors.

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Hospital Fails to Report Elder Abuse

Family Files Wrongful Death Lawsuit Against Nursing Home

The financial awards given to a plaintiff following a civil trial are referred to as “damages.” Many are unaware that there are very specific rules about the types of damages and amounts that are awarded in each individual case. Far from a “free for all,” if a judge or jury finds a defendant liable in any case, they will conduct detailed analyses to determine the proper damage award. Attorneys will often provide separate arguments explaining the types of awards that should be given and provide specific information explaining why they are requesting certain dollar amounts.

Most damages are “compensatory.” That means that they are tied to very specific harms suffered by the plaintiff. Economic damages are those traced to financial losses of the plaintiff (i.e. lost wages, medical expenses). Non-economic damage refer to those losses that are not tied to a specific dollar amount (i.e. pain and suffering). Non-economic damages are still compensatory, however, because they are traced to a very real harm suffered by the plaintiff.

Alternatively, “punitive” damages are those which are not tied to the losses of a plaintiff. Instead, they are given solely to punish the defendant. Punitive damage awards are those that usually make newspaper headlines, because they can be sizeable. However, they are not just ad hoc judgments made on a whim. Instead, they are awarded for very specific reasons, when defendant conduct is outrageous and financial penalties are seen as the only method of ensuring changes so that the defendant never engages in that conduct again--and other similarly situated defendants learn of the decision and also make changes to ensure they do not act in the same manner.

Nursing Home Punitive Damages
Recently, as discussed in the Sacramento Bee, a jury awarded significant punitive damages in a nursing home neglect case. The case revolved around the death of an 82-year old nursing home resident. The woman was taken to the hospital after suffering serious harm as a result of several bed sores. Evidence at trial suggested that caregivers at the facility knew of the sores and told others to keep them secret, because of the adverse financial consequences for the facility. The jury in the case, after hearing the evidence, found that the facility’s poor care was responsible for the senior’s death.

In a separate damage phase of the trial (after liability was already established), the jurors admitted that they were shocked by the defendant (a large nursing home conglomerates) seeming refusal to devote sufficient resources to proper care. This was made all the worse when the jurors learned of the company’s financial situation. The defendant have revenues last year alone of over $1.5 billion, with raw profits of $116 million. Despite all of this, they paid no income taxes the last three years. The picture was painted of the large assisted-living company’s focus on more mergers and acquisitions in an effort for increase revenues. The care of the residents depending on reasonable care seemed secondary.

That is why the jurors eventually reached a punitive damage verdict in the amount of $23 million. These damages were intended to punish the facility for its egregious system-wide conduct. After all, if the company had no financial incentive to shape up, why would it?

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Family Files Wrongful Death Lawsuit Against Nursing Home

Hospital Fails to Report Elder Abuse

WANE News reported recently on a new nursing home lawsuit that was filed by a family after a resident died following some sort of fight with another resident. The victim was apparently suffering from Alzheimer’s. Sadly, these sorts of incidents happen again and again, and they are usually preventable. In fact, our own legal team is representing a family whose loved one died in a similar situation in a nursing home in Oak Park.

Reports on this case suggest that the victim was an 88-year old woman who had lived at the defendant-nursing home for some time to receive close care. As with most seniors who develop cognitive conditions like Alzheimer’s, the resident likely needed close supervision to ensure she did not harm herself or was harmed by others If the allegations in this latest suit are to be believed, then the long-term care facility in this case likely failed in that duty.

While the details in the report are somewhat sparse, law enforcement officials who were involved in the matter suggest that the senior likely suffered head injuries after being pushed onto the floor by another resident. For seniors with various vulnerabilities, even seemingly minor falls can have serious, perhaps life threatening, ramifications. Caregivers in these settings are aware of these risks and must act prudently to prevent them

Making matters worse, in this case there are allegations that the caregivers attempted to cover up the homicide. Details on a possible cover-up are not provided in the report, but, if true, it represents the length that some facilities go to in an effort to push problematic incidents under the rug.

Accountability Following Tragedy
Losing a loved one is one of life’s greatest challenges. For many local residents, the death of a parent represents an incredibly difficult time, with emotions flooding together, forcing one to remember their past and re-evaluate their future without those who brought them into the world. There is simply no easy way to deal with these matters. And as the above case demonstrates, things are made that much worse when the death may have been prevented.

It is cliche to say that nothing will bring a lost loved one back. However, that is not to say that all deaths that may have been connected to abuse and neglect should be ignored. While, a particular resident cannot be made whole, steps can be taken to help other residents who may suffer similarly if changes are not made.

As our nursing home neglect attorneys have explained repeatedly, many of the worst long-term care facilities only enact safety changes when forced to protect their bottom line. Saving resident lives, on its own, is often not enough. That is why demanding legal accountability is critical. Filing a wrongful death lawsuit or otherwise bringing the matter to court is the single best way to guarantee that negligent facilities will feel the sting of their inadequate conduct. In that way, fellow residents are given the best chance of receiving adequate care in the future so that they can enjoy their golden years in peace and tranquility.

For help with these matters in the Chicago area, please consider getting in touch without neglect attorneys today.

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Hospital Fails to Report Elder Abuse

Levin & Perconti Attorneys File Suit Against Hillcrest Nursing & Rehab

Many comedy skits have focused on the relationship between senior citizens and their medications. Over the past few decades there has been an explosion of medications available help patients deal with a wide range of medical health issues. Because the body is prone to more ailments as one ages, it is not uncommon for seniors to have various issues at the same time, requiring use of many different medications at once.

While these drugs are critical in minimizing symptoms, prolonging life, and otherwise making life easier to live, they are not without their risks. For one thing, because seniors so often are on different medications at once, it is incumbent upon caregivers to understand whether any combinations pose too high risks. Also, it is essentially that individual drugs be properly vetted to ensure their side-effects and potential serious harms are mitigated. Sadly, we still have a long way to go before all preventable medication errors are actually avoided, and many dangerous drugs continue to be produced and provided to unsuspecting patients.

Dangerous Drug Liability
When a medication causes harm, legal liability for the harm may fall on different parties, including medical providers who prescribed it, the pharmacists who filled the order, facilities where a patient resides, or the manufacturer of the drug itself. The specific cause of the harm often dictates which of those (or more than one) might be responsible.

The legal rules surrounding these liability issues are somewhat complex--and they are actually still evolving. For example, it is unclear if the rules are the same for the original manufacturer of a drug and those who make generic versions of it. A case that is to be heard before the U.S. Supreme Court will hopefully decide the issue for good in the interests of patient’s rights.

As discussed in a recent New York Times article on the case, the particular case began when a woman filed a lawsuit alleging that the makers of a generic drug should be responsible for the severe harm that the drug caused her. The drug makers contends that it is not responsible, because it is did not actually design the drug.

The woman took a mild pain pill known as sulindac. She was given the medication after her doctor prescribed it to deal with shoulder pain. Little did she know that she would have a severe reaction to the drug. Her skin essentially burned off as a result of the reaction, forcing into her a medically induced coma for months. By the end of the ordeal she was virtually blind and had permanent damage to her esophagus and lungs.

At trial the woman was awarded nearly $25 million, and the decision was upheld by an appeals court. The case was appealed to the U.S. Supreme Court which is set to hear arguments in the case, centered around the legal issue of whether or not a generic drug manufacturer can be held liable in cases like this.

It is useful for all those who may have suffered a severe adverse reaction to a drug to follow this case to understand if the court will ensure that manufacturers are held liable for the harm caused by the drugs that they produce.

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The Law & The Dr. Reinstein Fraud Case

Supreme Court Opens Door to Med Mal Lawsuit

Over the past few weeks a trial was underway in the first case alleging harm caused by the now-recalled versions of the Depuy hip implants. As we have often discussed in the last two and a half years, several thousand similar claims have been made, all alleging various harm caused by lack of proper warning and prudent action by Depuy Orthopaedics (and parent company, Johnson & Johnson). The company has already set aside significant sums of money in anticipation of the litigation and eventual payouts to those affected.

It remains unclear how each individual case will be handled. However, the end of this first trial is a good indication of how these matters may ultimately play out.

Verdict for $8.3 Million
As explained in a recent Bloomberg News article, last week the jury in the first case returned with a verdict in favor of the plaintiff. The plaintiff was a retired prison security guard who received a DePuy ASR XL hip implant in late 2007. Less than five years later, in February of 2012, the implant was finally removed after causing significant pain, suffering, and internal damage. The defective hip caused the man to use a wheelchair. He noted that had, “a kind of stabbing type of pain. It was debilitating. I couldn’t do anything, couldn’t walk long distances.”

Eventually, upon learning about the recall and being advised of the legal ramifications of the company’s actions, the man sought out counsel and filed a case. The matter went to trial earlier this year, ultimately spending five weeks there before being handed over to the jury for deliberations. After deliberating for about six days the panel returned a verdict in favor of the former patient. He was awarded over $8.3 million in compensatory damages. Slightly over $300,000 of the award goes directly for medical expenses while the remaining $8 million was for pain and suffering caused by the lengthy ordeal that the man was forced to endure.

Punitive damages were not found in this case. That is not uncommon, as a high bar must be met for a jury to award those damages which are akin to punishment for the companies conduct--as opposed to compensation for direct harm suffered by the plaintiff.

Regardless, the company’s attorneys argued after the fact that they plan to appeal the verdict. This is also not surprising. Because this is the first case, the company will expectedly fight until the end to set a precedent and try to position itself for the future. It is important to remember that the appeal is not simply a “do over.” Instead, the company must show specific legal errors that were made which may have influenced the verdict. It is insufficient simply to show that they disagreed with the jury’s decision.

What’s Next
This jury verdict represents resolution in just one case out of nearly 11,000 Depuy implant lawsuits that have been filed by those harmed by the defective hip implants. Some of those cases may go to trial--a second is already about to get underway--while others may settle. There is not necessarily anything in this particular outcome that guarantees an outcome in the other cases. In fact, some argue that considering the scope of the cases it is likely that punitive damages will probably be found by a jury somewhere.

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Defense Expert Claims No Harm in Depuy Trial

Doctors Remaining Silent - The DePuy Example

Underreporting of elder abuse is a long-documented problem. Because of the fact that many of the victims are not able to speak up for themselves and have few advocates, many instances of neglect and mistreatment are never made public. Many of those affected die without anyone ever being fully aware of the fact that they suffered in silence.

Those focused on correcting the underreporting problem often suggest that the best approach is to enact safeguards so that those who come into contact with seniors in various ways are trained to identify signs of mistreatment. That may include anyone from at-home therapists and bank tellers to financial advisors and estate planning attorneys.

Also, one of the most common “stop gaps” in that regard are caregivers at hospitals. For example, in many cases a senior will be brought to the hospital for some emergency treatment only for doctors to discover something like serious bedsores on the senior’s body. However, if doctors, nurses, and aides stay silent when they are confronted with signs of elder abuse, the senior may be sent back to a facility only to suffer more abuse.

Failure to Report
According to a report in My Elder Advocate, one hospital on the East Coast seems to have refused to report signs of mistreatment even though such reporting was actually required by law. The story explains how the resident was brought to the facility to have treatment for a urinary tract infection which was caused by the caregivers at his nursing home’s failure to properly clean the equipment. Besides the infection, the senior reportedly suffered from various other medical conditions caused by neglect.

One elder advocate explains how he spoke with a staff members at the hospital and asked the man to report the conditions that the senior patient had developed at the nursing home. However, hospital employee allegedly claimed that he did not have to report anything that did not occur at the hospital itself. A state law actually requires that such signs of abuse or mistreatment be reported. Illinois also has mandatory reporting laws.

The advocate also asked the resident’s doctor to report the abuse, but the doctor also refused. The article explains one obvious reason why that might have occurred: the doctor worked with the resident at both the hospital and nursing home. If the medical professional only reported the problem when the patient was brought to the hospital, then it would raise obvious questions regarding why he did not speak up sooner. As a result of this scenario, the doctor may have found it more secure to simply say nothing at all.

Interestingly, the story notes how this connection between medical teams and nursing homes and hospitals may act as a barrier preventing honest and complete reporting and potential nursing home abuse. By referring patients to one another, both may be able to generate large reimbursements that increase their bottom line. Obviously this potential conflict needs to be guarded against, as the safety and well-being of the seniors should be prioritized at all times.

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Refusal to Perform CPR at Nursing Home?

Billions Spent on Poor Nursing Home Care?

Considering the prevalence of elder abuse and mistreatment, it is relatively rare for any individual incident to attract widespread attention and public outrage. However, over the last few days there have been significant discussion and sharing of information about one particular case out of LA involving a care worker who refused to provided needed life support services to an ailing senior who ultimately died. The LA Times has been covering the story since the beginning

The administrators at the nursing home in question have suggested that the incident stemmed from a “misunderstanding” of emergency are procedures, but that has not stopped senior care advocates to understandably voice their frustration at a lapse that led to the passing of resident.

The Situation
According to reports, a call was placed from the nursing home to emergency responders after an 87-year old residents at the independent living center collapsed while in the dining hall. A nurse at the facility began speaking with a 911 dispatcher--telling the dispatcher about the women’s sporadic breathing. As expected, the emergency operator told the nurse that CPR should be performed immediately to help the senior.

The 911 tape recording show that the dispatcher was amazed to hear the nurse respond that she was not allowed to perform CPR on the woman. Apparently, the nurse’s supervisor was also standing near the phone at the time, but she is not heard of the tape. Reports indicate that the supervisor also instructed the nurse not to perform CPR>

At one point the exasperated dispatcher is heard saying, “Is there anyone willing to help this woman and not let her die?” The response: “Not at this time.”

Eventually emergency responders arrived at the facility. However, the repercussions for the senior of the delay in care were too much, and she ultimately passed away.

Bizarre Policy?
As the 911 call recording began spreading around online, listeners were obviously outraged by what they heard. How could the caregivers at the facility refuse to provide support?

According to comments made after the fact, a spokesperson for the home explained that it is the policy of the facility to not provide resuscitation to those who reside in the independent living portion of the home. There is also a skilled nursing and assisted living facility where CPR is performed. Importantly, the senior was not on a “do not resuscitate list” and it is unclear if she or her family knew that the policy of the caregivers was to provide no support at those times.

Investigation
The latest reports indicate that an investigation is now underway, conducted by the local police department, to determine exactly what happened and whether any changes need to be made. In the interim the nurse in question is on voluntary leave from the home. Repeating its claim that they did nothing wrong, spokespeople for the parent-company which owns the facility claims that as an independent living facility that is not licensed, the facility is not allowed to perform any medical services to residents.

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Billions Spent on Poor Nursing Home Care

Former Caregivers Recover Following “Whistleblower” Lawsuit

Our legal team is proud to represent nursing home residents and their families whenever negligent care by a facility causes preventable harm. There is simply no excuse for violating basic safety standards and allowing our vulnerable seniors and those with disabilities to suffer the consequences.

Recently our neglect attorneys filed suit against Hillcrest Nursing and Rehabilitation in Joliet on behalf of the family of a 49-year old former resident of the home, John Eric Rush. Mr. Rush suffered serious injury as a result of poor care and negligence by facility caregivers. Specifically, three lawyers from Levin & Perconti, Steven M. Levin, Jaime A. Koziol and Greta M. Hafeman, are representing the family in the suit filed in Cook County Circuit Court.

The Case
Mr. Rush needed long-term care because of several medical setbacks, including multiple strokes that resulted in paralysis on his right side. His impairments were severe, making it difficult for him to walk on his own or speak. His mobility problems placed him at heightened risk of developing bed sores, something that the caregivers knew about and were required to protect against.

Unfortunately, in a series of events that is all too familiar for those who follow neglect cases, the caregivers did not provide the close support that John needed. As a result, he developed several bed sores and was severely dehydrated. One of those pressure sores developed on his heel. The sore deteriorated his skin to such a point following infection that it had to be amputated. Sadly, the amputation was on his left side. His right side was already paralyzed as a result of the strokes, and so the loss severely affected his already significant mobility issues. Recognizing the poor care and injury caused by the home, John’s family moved him to a different location following the amputation.

John’s sad case is a testament to the fact that instead of providing proper care to maximize one’s quality of life, some long-term care facilities only watch as a resident’s condition is made worse by poor care.

In explaining their pursuit of legal accountability John’s sisted noted, “When John arrived at the facility he was able to walk with a walker and supervision. When I removed him from their care, he had to have a leg amputation and was deathly ill. I wasn’t sure if he would survive. If my actions against Hillcrest can save at least one patient and their family the worry, horror, frustration and pain that we encountered, then it is all worth it.”

Legal Accountability
It is essential for these nursing homes to be held accountable when they cause harm in this way. Sadly, many homes continue to harm resident after resident unless forced to change or close. This facility has shown those tendencies. Attorney Steve Levin explains, “Our firm currently has another lawsuit pending against Hillcrest. We will continue to take action to protect the safety and well-being of current and future Hillcrest residents and hope to send a message that inadequate care and abuse will not be tolerated. We urge anyone who has witnessed abuse or neglect at Hillcrest to come forward and tell.”

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Billions Spent on Poor Nursing Home Care

Former Caregivers Recover Following “Whistleblower” Lawsuit

Far too many nursing home owners and operators are focused almost exclusively on maximizing their own bottom line each month. That often means making choices about staffing, safety changes to the facility, commitment to staff training, the buying of supplies, and many other decisions where the best interests of the residents conflict with more profit for owners and operators. Obviously, a proper balance must be struck with reasonable levels of care provided to seniors at all times. When that profit motive is out of balance and harm results to a senior, then elder neglect has occurred and a civil lawsuit might be appropriate.

Yet, even when dealing with a lawsuit, some facilities take the same approach--willing to do anything to save themselves from having to pay out. In nursing home neglect lawsuits (and possible trials), that often means aggressive legal defenses that seem to throw everything but the kitchen sink at the plaintiffs in order to get the suit dismissed or encourage a settlement far below was is fair.

Judge Rejects Mistrial Argument in Nursing Home Case
For example, as reported in a recent Sacramento Bee story, one nursing home neglect case is now at trial. The plaintiffs in the case allege that poor care was provided to a woman, leading to the development of pressure sores, severe weight loss, and a significant fall that caused injury. The senior died shortly after she left the facility at the age of 82, and her three children filed suit shortly after.

Recently, the attorneys for the defendant asked the judge to declare a mistrial. They argued that the lawyers for the plaintiff “improperly” contacted current and former employees of the defendant-company and “coerced” their testimony. The judge rejected the call on two separate occasions. In responding to the claims, those representing the plaintiff and the plaintiff’s lawyer explained that the defense actions were “frivolous” and a “desperate measure.”

In dismissing the defendant’s arguments, the judge noted that the two witnesses whom the defense was complaining about were no longer working for the nursing home company. That means that they were not actually represented by the defense lawyers. There are unique rules about when attorneys can contact parties represented by a lawyer without the lawyer’s consent. However, the judge determined that those rules did not apply. That is because, the witnesses in question were not on the company payroll.

Experienced Nursing Home Neglect Lawyers
As the courtroom dramatics in this neglect case testify, anything can happen at trial. In their attempt to avoid accountability, virtually any argument under the sun might be raised. That is why it is critical to have the aid of attorneys who are experienced in these matters. In the Chicago area, the elder neglect lawyers at our firm have been helping families on these matters for decades. Please contact us if you think we can help ensure accountability for your loved one who might have suffered neglect at a long-term care facility in Chicago, the suburbs, or throughout Illinois.

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Importance of Death Certificates

The Dangers of Bed Rails

One of the signs that elder abuse is being taken more seriously are the increases in penalties faced by those who are caught engaging in this conduct. It is well understood that the vast majority of mistreatment of senior community members never ends up in a police report or complaint charges with regulatory agencies. Instead, most seniors suffer in silence, living out their golden years in pain and depression.

Yet, one way that those unreported cases might be influenced is by setting the the example via significant punishments for those actually caught doing wrong. The deterrent effect may work to prevent some neglect, with wrongdoers knowing that they could face serious ramifications for their conduct.

More Criminal Charges for Egregious Caregiving Lapses
For example, in what is being reported as a first of its kind prosecution, an elder caregiver who was supposed to provide support at a senior living home is facing manslaughter charges following one resident’s death. As reported in the Sacramento Bee, the 88-year old resident in question had lived in the senior care facility managed by the defendant since 2007. The senior passed away last June, and it was soon learned that the death was caused in large part by massive bed sores that she developed while living at the facility. Essentially, a few of the bedsores, particularly on her buttocks, were so severe that she developed sepsis. Sepsis is a far too common cause of death for nursing home residents related to severe bodily reactions from germ or bacteria infections.

Sadly, no one seemed to care about the woman’s condition until it was too late. An emergency room doctor who treated the senior explained that the bed sores were among the worst he had ever seen. They were of the “Stage 4” variety--the most severe category.

The facility where the senior died is somewhat unique, as the caregiver is only licensed to provide support to six residents at a time. However, the operator explained that she usually only kept two to three residents. Even that proved to be too much, as the awful conditions this woman was forced to live in testifies to. The elderly woman’s family in this case was paying several thousand dollars a month to the defendant in order to provide the close care that they thought their loved one needed. Little did they know that the woman was instead being ignored, allowed to develop the painful bedsores which ultimately took her life.

In defending the pursuit of criminal charges in this case--and in similar matters--the state’s attorney general explained, “We know abuse of our elders is becoming more pervasive, so we must become more resolute in our protection of them."

If convicted of the charges in this matter, the care facility operator could face serious sanctions. Currently in jail on $300,000 bond, the defendant could be sentenced to as much as twelve years in prison for the elder abuse charge and another four for involuntary manslaughter. The criminal charges included special allegations because the elder abuse involved great bodily injury and death.

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Importance of Death Certificates

The Dangers of Bed Rails

Illinois nursing home neglect often leads to the death of a resident. Because of the medical problems that many seniors already have, injuries caused by neglect often prove fatal where they otherwise might not have been as harmful for a younger community member. As most know, when neglect leads to a passing then legal accountability can be had, including the filing of a wrongful death lawsuit.

Obviously, one critical piece of information when it comes to proving these claims is the death certificate. The death certificate is a form that is usually jointly completed by a doctor and medical examiner to indicate details of the death (date/time), cause and manner of death. It’s self-explanatory that this information may impact a lawsuit. If a patient suffered a fall and the cause of death was something connected to trauma to the head, then there is an obvious connection between possible neglect and death. Even in cases where the cause of death was not something obviously connected to neglect, the evidence may prove useful. For example, a passing due to complications from an infection may be a sign of neglect, such as allowing bed sores to develop and worsen

The bottom line, however, is that these certificates are important documents, and it is critical that the information contained in them be accurate. Unfortunately, as discussed in a recent AMED News story, mistakes in death certificate documentation are too common. There are many reasons for the errors, including doctor unfamiliarity with the process. Observers note that training on how to properly fill out death certificates is nonexistent in many places. Some doctors never fill one of these out until they are actually in their residency. Others remain confused about what items they need to fill out and what should be filled out by the medical examiner.

Also, a doctor’s familiarity with a particular patient may influence the accuracy of the certificate. If the doctor is unfamiliar with a patient--perhaps only seeing them a few times--then they may have less information about the ultimate cause of the passing. Similarly, patients with cognitive mental challenges--like dementia and Alzheimer’s--are usually less able to share information with their doctors about symptoms, experiences, etc. As a result, if the resident passes away, the doctor may be less accurate in indicating exactly what the cause might have been.

For this reason, it is not uncommon for death certificates for nursing home residents to be filled with inaccuracies or vague statements. These errors can impact possible legal challenges if nursing home neglect is suspected to have contributed to the harm. An experienced attorney who has worked on these cases in the past can explain how information in a death certificate may impact your specific case. Importantly, the details of the certificate, while useful, are not necessarily proof-positive of anything. Instead, the details are only a snapshot of a medical opinion at a particular time. If new information is uncovered or provided to the medical professional, that opinion might change.

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Senators Send Letter Urging Bed Rail Action

MRSA Infections on the Rise in Nursing Homes

For several years we have discussed the ever-present (but little known) risks posed by bed rails. Patients in hospitals, nursing homes residents, and those with special beds at home can very easily become injured as a result of these metal rails placed on the sides of their bed. These objects are actually intended to improve safety, but when not designed properly or used incorrectly, they may lead to serious harm--even death. Far too many local seniors in long-term care facilities have been harmed as a result of these rails. Failure to account for the risks may be an example of nursing home neglect.

While it has been a hard fight to raise awareness of these risks, some advocates have been working tirelessly to ensure community members know of the harm. Recently, those efforts attracted even larger national attention when five sitting U.S. Senators wrote a letter to the head of the U.S. Consumer Product Safety Commission (CPSC), urging that they take action to minimize the harm that can result from these rails.

The Bed Rail Letter
Last year the CPSC finished a report that looked into the dangers of bed rails and possible steps to correct the problem. The report found that tens of thousands of emergency room visits were spurred by bed rail accidents over a nine year period. Over 150 deaths were reported directly from the products--and that is not counting the many injuries and deaths that may not have been reported as such. After reviewing the report, several Senators sent a letter to the agency head this month urging real action.

The letter, signed by Senators Merkley, Sanders, Harken, Blumenthal, Franken calls on the CPSC to take “immediate action” to address the dangers of these rails. The action that is requested includes a range of steps which will hopefully minimize the risk of harm and ultimately save vulnerable seniors from serious injury or even death caused by these products.

The Senator’s urged the CPSC to do three things: (1) formulate safety regulations so that the most dangerous designs are not used: (2) educate the public on the danger risks; (3) exercise its recall power, when necessary, to get the most dangerous objects out of the marketplace

Spurred By Neglect Lawsuit
As with many other consumer safety efforts, the efforts to protect community members from bed rails began with a community members seeking legal accountability following a death. A woman filed suit against a nursing home and those connected with the use of manufacture of bed rails after her mother died as a result of the product. After completing the legal matter, she then began advocating to prevent others from suffering similar harm. The CPSC report and this recent letter urging actions are direct by-products of that work.

These developments are an example of why our nursing home neglect attorneys at our firm are proud to work in this field. Change only happens when real people step forward and demand action. Nothing is gained by staying silent.

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MRSA Infections on the Rise in Nursing Homes

Excessive Medication Common in Nursing Homes

It goes without saying that seniors in nursing home have general vulnerabilities that make them more susceptible than the general public to long-term harm from certain medical risks. One of the most obvious example of this are infections. While healthy adults have stronger bodies and immune systems which are capable of fighting off many bodily invaders--seniors might not. That is why it is critical for caregivers and administrators at these homes do everything in their power to minimize the risk of infection spreading at these facilities. It is not an overstatement to say that lives literally hang in the balance.

In fact, according to a Medical News story one deadly infection is on the rise in nursing facilities: MRSA. More specifically, the article points to new studies which find that more needs to be done to control the spread of community-associated strains of methicillin-resistant Staphylococcus aureus (CA-MRSA). Hospitals are usually the focus of efforts to properly minimize MRSA spreading. But according to research published in the journal of the Society for Healthcare Epidemiology of America known as Infection Control and Hospital Epidemiology, nursing homes may be just as risky. As part of the effort, the researchers visited 22 different nursing homes over a several year period. Surprisingly, nearly 25% of residents examined shows traces of CA-MRSA.

The researchers point out that these drug-resistant strains are incredibly harmful and often lead to many different invasive diseases. Senior residents who develop this CA-MRSA while at the facility may be prone to develop abscesses, pneumonia, and infections of the bloodstream. There are many different infection control practices which should be instituted at these facilities in order to minimize the spread and subsequent harm. That is particularly important, because nursing home residents are uniquely positioned to develop the infection. The article authors explain: “Nursing home residents also have increased risk factors for MRSA, including diabetes, long-term use of indwelling devices, and inability to perform activities of daily living.”

The researchers who studied the issue argued that there may be a connection between hospital MRSA rates and nursing home rates. That is because many nursing home residents are admitted into the skilled nursing facility directly from the hospital. The strain can easily be carried from one setting to another.

Our Chicago elder abuse lawyers urge all local families to be very careful when monitoring a loved one’s condition at these facilities. Timing is often important when it comes to properly treating these complications, and so it is helpful to share any concerns with caregivers and medical professionals.

Unfortunately, it often takes aggressive action on the part of families and friends to ensure that nursing home residents receive the full care to which they are entitled. It is dangerous to assume that caregivers will identify all problems before others. There are many cases of family members who notice problems during a visit and are shocked to discover that caregivers failed to notice it earlier. The bottom line: do not let concerns about the care that a resident is receiving go unvoiced. Share your concerns and demand changes.

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Excessive Medication Common in Nursing Homes

Critiques of Elder Abuse Suspicions