Effective July 29, 2010, the Illinois General Assembly amended the Nursing Home Care Act to include what it termed “whistleblower protection”. 210 ILCS 45/3-810 (West 2010). Section 3-810 specifically provides a private right of action for nursing home employees who are retaliated against for reporting or threatening to report to a supervisor or a public body any action or incidents they believe to be a violation of the law, a rule, or a regulation regarding care and treatment of nursing home residents. Prior to this amendment, Illinois Courts did not recognize a private right of action for nursing home employees who reported violations and were retaliated against. In Young v. Alden Gardens of Waterford, Bethany Young, RN filed suit alleging, in part, that she was retaliated against for refusing to falsify medical records on November 9, 2009. The trial court dismissed her claim under Section 3-810 based on the fact that the Nursing Home Care Act did not provide a private right of action for retaliatory discharge at the time the conduct occurred. The court noted that because the amendment affected a substantive change in the law, it could not be applied retroactively to Young’s claim. Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887 ¶ 11.
Several different Chicago home health companies and facilities are named in the complaint, which seeks to hold the entities accountable for the actions of their employees in the scope of their employment.
The plaintiff in the case is a man filing suit on behalf of his now-deceased father. The father was receiving care at his home. However, in mid-November of 2011, the senior was brought to a local hospital for a range of problems, including several bed sores, an infection, diabetes problems, and sepsis. His lower leg was amputated to stave off the infection, but the senior died a few days later as a result of complications.
The lawsuit alleges that the senior’s death was caused by inadequate care by those charged with providing him services at home. The complaint suggests that the defendants provided inadequate care, did not monitor the senior, allowed him deteriorating condition to go unnoticed, and otherwise failed to meet their duty.
Several specific claims are made, including a wrongful death action, survival action, and a claim based on the Nursing Home Care Act. This is common in elder neglect cases, as mistreatment can lead to liability under multiple theories.
The Nursing Home Care Act claim is slightly different than the others as it refers to defendant’s liability as an actual elder care facility required to uphold certain aspects of the Nursing Home Reform Act which was passed as part of the federal Omnibus budget Reconciliation Act (OBRA). The complaint notes that the defendants breached the law in various ways, including failing to inform the senior’s family of his medical condition, providing substandard nutrition and hydration practices, failing to enact a corrective plans to care for the senior, and more.
Home Care Neglect Lawyers
Our legal team at Levin & Perconti are proud to work on behalf on all families throughout Illinois whose loved ones may have been harmed by negligent senior care. That includes abuse in the nursing home, mistreatment by home care aides, and everything in between. If you or a loved one may have been harmed in this way, please contact our team to see how we can help.
Not only can legal accountability ensure redress in your own case, but it can spur changes on a system-wide level that improve care for many others. Far too many seniors spend their golden years suffering in silence. Take a stand today and help those unable to help themselves.
While nursing home neglect receives more attention, mistreatment of seniors occurs in many settings. That includes inside senior’s own homes where they receive support from traveling medical aides. In fact, considering there is a general trend away from institutionalized care, we can expect more and more cases of neglect in other settings. Be assured, no matter where it happens, elder abuse is unacceptable, and there are legal avenues to pursue to demand accountability.
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The federal Nursing Home Reform Act covers many of the rights that nursing home residents are guaranteed. These rights are codified in the Code of Federal Regulations Title 42- Public Health Law, Part 483.
These rights include:
The right to choose a doctor
The right to receive advance information about treatment
The right to be free from all kinds of nursing home abuse
The right to obtain clinical records upon request
The right to have notice before a room or roommate change happens
The right of residents to manage their personal finances.
Many nursing home residents may feel overwhelmed by the focus on care planning and medication management and may wonder about their freedom, privacy, choices, sense of independence and control while living in a nursing home. Residents shouldn’t worry however, because there are both federal laws and state laws that protect the rights and civil liberties of nursing home residents.. For example, if a resident wants to visit with whomever they choose in their nursing home, this right is guaranteed. Likewise, if a resident wants to always wake up at a certain time and always wants to go to bed at a certain time, these rights are protected also.
Most nursing homes seek to allow residents the freedom to make their own decisions. Many people might wonder: how can nursing home staff ensure that all residents’ rights are protected when they are required to deal with so many people with vastly different medical needs? The fact is that living in a nursing home does not take away a senior citizen’s rights to make choices about their own life. Most people don’t realize it, but nursing home residents enjoy the constitutional freedom to associate with whomever they choose..
Ways that Nursing Home Residents Can Address Concerns
A nursing home resident who lives under the care of staff every day and feels dependent on them for their basic needs might be a little intimidated about approaching staff about problems that they are having which may infringe on their rights or their quality of life. What if a resident at a nursing home feels their privacy is violated because a staff member has been entering their room without knocking? What if a resident in a nursing home has a roommate who has trouble remembering to turn down the volume on their television set late at night? Even though these types of problems are not life-threatening, the residents involved have the right to have the staff at their nursing home address these issues. If a nursing home resident has a grievance, they should first document the situation in a written letter and include a brief statement of the facts along with the names and titles of the people involved. The resident should make sure that their letter includes a discussion of the effects that the particular problem are having on them.
Nursing Home Responses to Resident Concerns
If a resident at a nursing home has a problem that implicates their rights, most nursing homes will seek to quickly resolve the problem. Nursing home administrators may want the resident to talk directly to the department head who is in charge of that area of the nursing home. For example, if a resident has a dietary concern, the nursing home administrator may refer them to the food services supervisor.
A nursing home resident who has a problem that implicates their basic rights can also ask for a care planning conference or a special problem-solving meeting with the nursing home administrator. This type of meeting generally will involve all of the people at the nursing home who can offer solutions for solving the problem.
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It is a sad tale that plays out in our community every day. Local resident Nancy Rivera’s mother began suffering cognitive challenges. Like so many others, the senior, Carmen Marrero, suffered from Alzheimer’s, and her condition slowly deteriorated. About three months ago her health was in such a place that she needed around-the-clock care. It was more than Rivera could provide on her own.
To ensure her mother’s safety, the adult daughter moved her parent in a facility she assumed would provide the close care needed--the Grove at the Lake Living & Rehabilitation Center in Zion.
Sadly, in just that very short time, evidence suggests that Ms. Marerro did not receive anywhere near the care she needed. As discussed in a recent Sun Times report, since moving into the facility, Marrero needed to be taken to a local hospital for medical care at least twice.
The first trip occurred in early August. Employees at the Zion nursing home told Rivera that her mother had fallen and suffered a head injury. Fortunately, the senior did not suffer permanent injury and she was released shortly after her arrival. Yet, even then, there were signs that something was amiss. That is because the senior was brought to the hospital wearing only a man’s large T-shirt. The shirt did not even belong to her. How the senior ended up in that situation is unclear. However, attention to adequate presentation and grooming is often a sign of the overall quality of care provided at a home.
The second hospital trip occurred only a few weeks later. At that time the daughter was told that the problem was in her mouth--the senior has an abscess. Yet, after arriving at the hospital Rivera learned that the situation was far worse. She explains that her mother had a black eye, bruises on other parts of her body, and a jaw that was swollen and broken in three places.
Rivera notes that a surgeon at the facility told her such injuries were likely caused by another fall or some other incident. They would not spring up randomly--or be caused by an abscess.
Right now the senior remains in the hospital in poor health.
Illinois Nursing Home Neglect
Following this latest incident, Rivera took action. She spoke with local advocacy groups which in turn have called on officials in the Illinois Department of Public Health to investigate. A complaint was filed with the Department of Public Health, and local law enforcement officers are also examining the matter.
In addition, the family has retained the services of our Illinois nursing home attorneys at Levin & Perconti to ensure all their rights are protected and every available option is considered to demand accountability and raise awareness.
This case is one of many examples of the negligent care provided to so many vulnerable seniors in local facilities. If you have suspicions, it is important to speak up. For help ensuring fairness and accountability for a loved one who was hurt in a nursing home, please contact our legal team today.
A nationwide nursing home resident advocacy group, “Families for Better Care,” recently released a comprehensive “Nursing Home Report Card.” The study culls 2013 data in at least eight different criteria to grade each individual state on the quality of nursing home care provided. The grade is an easy-to-understand gauge of the current state of long-term care in each region.
So how did Illinois stack up in this effort? Not good. Nursing home caregivers in Illinois received the lowest grade possible, an F. Overall, the state was in the bottom ten nationwide. Those of us who work on IL nursing home neglect cases fully appreciate the scope of mistreatment faced by so many seniors. But it is still discouraging to see even more confirmation of the inadequate services provided to some of our most vulnerable community members.
Poor Illinois Nursing Home Care
The state’s failing grade in this particular report care is attributable to a range of factors. Perhaps most notably, Illinois has a horrific record for ensuring adequate frontline staffing. These “frontline” staff are the individual caregiving aides who provide most of the actual non-medical support to seniors. These caregivers are responsible for tasks like changing clothes, ensuring proper nutrition, helping with grooming, transferring residents, and more.
Yet, despite the critical role played by these caregivers, Illinois had the fewest of these care workers per resident in the entire country. In other words, many Illinois nursing homes are chronically understaffed. It is little wonder that many state seniors experience falls, wandering accidents, and suffer from bed sores caused by inadequate wound- dressing/turning support.
The state was also near the very bottom when it came to total citations found by inspectors. Illinois was in the bottom ten both for overall deficiencies and severe deficiencies. The severe deficiencies refer to situations that place residents at risk of serious injury or even death.
In a press release on the results in Illinois, the executive director for the group that put out the report explained, “According to the report card, 96 percent of Illinois’s nursing homes were cited one or more deficiencies. Worst yet, 1 in 4 nursing home were cited a severe deficiency, indicating widespread abuse, neglect and mistreatment.”
We Can Do Better
This latest report is just another in a long-line of alarming news about the poor quality of care provided in Illinois facilities. Each of these should act as a wake-up call to those who own and operate nursing homes in the state.
Unfortunately, the problem will not be solved by increased awareness alone. In fact, over the past few years state lawmakers have actually passed updates to the law seeking to improve these poor statistics. But there is a difference between passing a law and making sure that the rules are enforced. In Illinois, far too many homes simply ignore basic caregiving standards (and legal requirements) to the detriment of the seniors in their care.
This is exactly why our attorneys continue to urge families and loved ones to come forward on their own with signs of neglect. There are simply not enough inspectors in the state to properly monitor quality. Instead, the job falls to individual family members refusing to remain silent after a relative was hurt as a result of neglect.
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There is such variety in the quality of nursing homes that it is absolutely essential to take care when making a selection for a loved one. Weighing the facility’s track record, location to family members, available amenities, perspective of current residents, and other factors is critical. It is not a stretch to say that the life of your relative is on the line, and it is well worth it to take all the available time to make the appropriate choice.
But as far too many Illinois families know, there often is not much available time. Many seniors suffer a fall, stroke, heart attack, or other accident that forces them to move into a facility where they can receive around the clock assistance right away. Adult children, other relatives, and friends often have to help make a nursing home decision almost immediately.
Prepare Ahead of Time
While it is impossible to know exactly what the future holds, it is never a bad idea to conduct some basic research ahead of time to understand the long-term care process for your or a loved one. Investigation does not mean that the need for nursing home care is automatic. Instead, it is just a pragmatic step to prepare for an uncertain future.
Deciding on reasonable facilities is just one of many questions to consider. For one thing, there any many different types of long-term care settings, each offering different levels of care. Understanding the distinctions is helpful.
On top of that, finances must be accounted for. Where will the money come from to pay for the care? Long-term care costs can be quite significant, and many seniors do not have the resources to pay for it on their own--at least not for long. In addition, Medicare, which provides healthcare for many seniors, actually does not cover most long-term skilled nursing home stays (only short rehab needs). Instead, that burden falls to Medicaid. Qualification for Medicaid is far different than Medicare, as it is based on financial need and not age. Qualifying for Medicaid often requires one to “spend down” their assets. This can result in a family home or other assets being lost. Steps can be taken to protect some of those assets, but it is usually only possible when an estate planning attorney is consulted who can use specialized legal tools (like a Medicaid Asset Protection Trust) to guard against future uncertainty.
One helpful resources to browse with regard to all of these issues actually comes directly from the federal government. The U.S. Department of Health and Human Services created a website: www.longtermcare.gov. The site has a wide range of information about types of long-term care, making reasonable choices, and understanding the related finances..
The attorneys at our firm have worked with countless families whose loved ones suffered serious injury (or even death) as a result of poor nursing home care. Considering the stakes and the prevalence of mistreatment, we urge all local residents to familiarize themselves with these long-term care issues as early as possible to give your loved one the best chance possible of receiving appropriate care free of error.
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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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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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The majority of nursing home residents rely on Medicaid support to pay for the long-term specialized care that they need. As a result, the Medicaid program has enormous control over the care at most nursing facilities--they can make requirements and pull funding when those requirements are not met.
The “Nursing Home Compare” website that we frequently reference is based almost entirely on how well those homes do on various inspections and quality of care indicators. These inspections and checks are performed annually, and so they provide a helpful way to gauge how different facilities are improving (or not improving) in their efforts to raise standards, eliminate elder neglect, and ultimately improve the well-being of residents.
This is helpful for seniors and their families when making decisions about which home to choose. It is also useful for regulators, as they make decisions about whether the very worst homes which provide poor care should remain open.
Special Focus Facilities
One way that regulators identify the lowest-quality facilities and ensure they improve is by use of designations known as “Special Focus Facilities” (SFF). SFFs are a list of homes that are under particularly close scrutiny by regulators, usually as a result of past incidents of harmful neglect and chronically poor conditions.
Nursing homes on the SFF list are visited and inspected more often than other facilities. If the situation does not improve at these facilities they may face a range of adverse effects including citations, fines, or even complete removal from the Medicare and Medicaid programs (which usually result in the facility’s closure). The longer that the home is on the SFF list, the more serious the sanctions. The idea is that if the facility operators do not get their act together in a reasonable time, residents should not continue to be put in harm’s way.
Special Focus Facilities - Illinois Nursing Homes
This week the Centers for Medicare and Medicaid released the latest list of facilities nationwide that were part of the SFF program. The lists are broken down into several categories including:
*Facilities that were newly added to the list
*Facilities that remained on the list this year but showed improvement
*Facilities that remained on the list this year but did not show improvements
*Facilties that “graduated’ from the program this year.
Illinois residents and their families should take a look at the list (download in .pdf form here) to get an idea of where local facilities stand. Some of the Illinois nursing homes mentioned are:
*Newly added to the list: Arthur Home in Arthur, Illinois; Pickneyville Health Care Center in Pickneyville, Illinois
*Facilities that showed improvement (but are still on the list): Elmwood Nursing & Rehab Center in Maryville, Illinois; Plaza Nursing & Rehab Center in MIdlothian, Illinois.
*Facilities that did not show improvement: Meadowbrook Manor in Bolingbrook.
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Choosing the right nursing home for a loved one is a difficult task. The potential for mistreatment and abuse of a vulnerable relative is often on family member’s minds. According to McKnight’s Longterm Care News & Assisted Living, the Center for Medicare and Medicaid Services (CMS) is striving to make this process easier. The government agency responsible for administering Medicare and other programs, as well as providing information to health professionals and the public, is currently in the process of expanding its database to provide more detailed information about nursing home deficiencies.
CMS began posting nursing home deficiency reports last summer, based on information reported to the agency through standard health and complaint surveys. CMS conducts these investigations as part of its role in overseeing that nursing homes comply with health and safety laws. The data currently provides information as far as fifteen months back and one survey cycle, but CMS aims to provide information as far back as three cycles for standard health surveys, and three years for complaint surveys. In addition to the increased time period, CMS also intends to provide indicators as to the severity of each deficiency cited. All in all, the added information will likely give families a greater sense of control and security in the nursing home selection process, and will help to hold deficient nursing homes accountable.
CMS’s pledge to provide greater information to the public couldn’t come earlier. Recently, in Connecticut, a string of nursing homes have been found to have left vulnerable elders in desperate conditions. The CT Post reports that the Connecticut Department of Public Health (DPH), a state agency, found numerous violations of the state’s regulations for nursing homes. In one case, a resident with a leg wound had refused treatment for so long that maggots were found to be festering inside of it. The DPH found that the nursing home responsible had performed a psychiatric evaluation on the resident, but had failed to approve her for psychiatric admission, and had failed to provide an alternative treatment plan. In another case, a resident suffered extreme weight loss due to loss of dentures, a condition to which the responsible facility’s nutritionist was never alerted. In the final case, a resident was moved from a wheelchair to a bed without a mechanical lift, contrary to the patient care plan. The resident was injured from being dropped during the transfer. The DPH administered fines for each deficiency cited.
Like Connecticut, in Illinois, the Department of Health oversees enforcement of the Nursing Home Care Act and regulates long term care facilities. The Nursing Home Care Act enables the Illinois Department of Health to penalize nursing homes that fall below regulations. Penalties are assessed based on the severity of actual or potential physical or mental harm.
Victims and their families also play a critical role in holding nursing homes accountable for deficiencies. Victims and their families can seek compensation for nursing home abuse by filing a lawsuit. Private suits not only help to compensate victims of nursing home abuse, but also expose nursing home deficiencies and help to deter further abuse.
While greater transparency may make the process of selecting a nursing home easier, families may still face the frightening potential of nursing home abuse. Federal and State agencies can hold deficient facilities accountable through their administrative powers, as the victims of abuse can through the justice system. If you or a loved one has suffered Illinois nursing home abuse, please contact us. We may be able to help you hold a nursing home accountable.
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Family Files Wrongful Death Lawsuit Against Nursing Home
Levin & Perconti Secure Successful Verdict in Illinois Nursing Home Neglect Case
There are different kinds of senior care facilities, each offering differing degrees of specialized medical care for elderly residents in need. When people think of the traditional “nursing home,” that usually refers to a skilled nursing facility. These locations offer the most intensive care that one can find in a long-term setting outside of an actual hospital. In that vein, seniors who are at these homes often need far more support than those at less intrusive locations--like assisted living facilities. There are many other differences which distinguish these home was well--including the number of actual medical professionals working with residents.
Because traditional nursing homes often provide more sophisticated medical care, there is a chance that actual medical malpractice might be committed at the facility. This might occur, for example, when a nursing working at the home violates the standard of care when performing medical services--perhaps involving medication.
Yet, even though skilled medical care is provided at these facilities, much neglect--and the nursing home neglect lawsuits that follow--are not actually based on medical malpractice. Instead, they often stem from negligence of a more fundamental nature. This might include failing to protect a resident from being attached by a fellow resident or failing to properly aid with transfer while allowing a resident to fall.
Another far too common example of negligence at nursing home is wandering. When not properly supervised, some residents are prone to wander to parts of the facility where they are not allowed (and that pose safety hazards). In more serious situations residents may even leave the facility itself. There are countless examples of seniors who leave a home and are killed after being exposed to the elements. Residents with degenerative brain injuries--like Alzheimer’s and other dementias--are by far the most likely to suffer harm in this way. Caregivers at these facilities must be well-aware of who poses these wandering risks and take steps to minimize the risk. When they fail and harm results, legal action might be appropriate.
Illinois Wandering Example
This risk was demonstrated recently at a Southern Illinois facility. According to a report in the Belleville News Democrat, this week a resident wandered out of a facility without caregivers knowledge. The man is 84 years old and suffered from dementia. He was first discovered missing on Wednesday morning. Fortunately, this case has a happy ending. About an hour after he was first identified as missing, a motorist saw him walking in pajamas on a side road. The traveler took the man to a local gas station and waited while authorities were called. The senior was taken to a hospital to be examined but he appeared to be relatively uninjured.
While this situation did not result in permanent injury to the senior, there are many other cases where the opposite is true. At the end of the day there is simply no excuse for caregivers allowing seniors with cognitive mental conditions to leave the facility unnoticed. It is critical that serious analysis be conducted at the home to ensure that this never happens again. Whether it is increase staffing levels, better training, and/or change of safety protocols, something must be done to prevent another senior from being exposed to the same harms.
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The San Francisco Gate reported last week on a new lawsuit filed by a family following a tragic incident at an assisted-living facility. The details of the case are similar to one’s that our nursing home lawyers here in Chicago have seen time and again. It is a testament to the fact that many facilities continue to fail to learn from the past, with the same sort of preventable incidents occurring time and again, residents suffer as a result.
According to the report, the case stems from the death of an 85-year old female resident at the defendant-facility The woman suffered from Alzheimer’s, which was assuredly one of the reasons she was living in the facility to being with—to receive the close care she needed to stay safe each day. Attorneys representing the family in the matter explain that the 85-year old senior was having issues with another resident. The elderly woman told officials at the facility that the other resident was threatening her and stalking her.
However, the staffers only response, they claim, was to tell the woman that she should ignore the aggressive fellow resident by walking down a different corridor. That minimal advice proved to be fruitless. That is because the man eventually attacked the elderly woman. She died a few days after the attack from her injuries.
After the incident and learning more about what might have happened, the family visited with legal professionals who work with abuse and neglect cases at long-term care facilities. Those attorneys eventually filed an injury and wrongful death suit against the defendant facility. That is common after these incidents.
When a resident dies as a result of injuries which could have been prevented with proper care, then at least two legal claims are often raised. First, a negligence claim is filed on the behalf of the deceased for the negligence that caused this harm. If any funds are recovered for that claim, those funds would go to the deceased’s estate—and then dispersed as part of their will or other estate planning documents. In addition, a wrongful death lawsuit is filed on behalf of specific survivors (usually children, parents, or siblings). That claim is for damage suffered specifically by those relatives. If any damages are awarded for that claim, then they will go directly to the relatives named as plaintiffs in the suit.
Resident on Resident Violence
Unfortunately, resident attacks on other residents are not uncommon; it occurs far more than many suspect. The risks are higher for residents who suffers from cognitive challenges, like Alzheimer’s and other dementias. For example, our team of attorneys is working on just such a case following a similar attack in Oak Park. As in this case, the resident in the Oak Park facility was suffering from cognitive deterioration problems. The family placed their loved one in the home specifically because they knew he needed close care to help with his condition. They never expected that by placing him at the facility they would be exposing him to more dangers—and an attack that would ultimately claim his life. But when caregivers fail to do their job appropriately at all times, then accidents like this are far more likely to occur.
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The Illinois Nursing Home Care Act protects the rights of residents in long term care facilities relating to privacy, freedom from neglect and abuse, and self-determination. Under the Act, a long term care facility is any place that provides personal care, sheltered care or nursing for three or more persons not related to the facility owner by blood or marriage. These facilities are required to comply with the Act and are responsible for preventing nursing home resident abuse and neglect.
Some of the major residents’ rights protected under the Act include:
• The right to wear your own clothing and have a safe, secure storage place for your personal property
• The right to privacy of your bedroom space, including not sharing a room with someone of the opposite sex unless the person is your spouse
• The right to choose your own doctor and make decisions about your medical care
• The right to be free from restraint or confinement without consent
• The right to communicate through phone and mail and receive visitors
• The right to manage your own financial affairs
• The right to be free from abuse and neglect
• The right to discharge or transfer to a different facility at your request
• All of your rights as a U.S. citizen, including freedom of speech, religion, and the right to vote
The Illinois Department of Public Health (“IDPH”) enforces the Act throughout Illinois. If a facility has violated any of your protected rights, your options include 1) filing a complaint with the Long-Term Care Ombudsman; 2) filing a complaint with the IDPH; or 3) consulting an Illinois nursing home abuse attorney about filing a private lawsuit. The Long-Term Care Ombudsman is required to investigate your complaint and can ask the facility to voluntarily comply with the Act’s requirements. If the facility fails to address the violation, the IDPH can investigate and impose fines and other penalties for any violation it finds, up to and including revoking the facility’s license to operate.
In addition to submitting a complaint to the Ombudsman or IDPH, you can also pursue a private nursing home lawsuit. The Chicago nursing home abuse attorneys at Levin & Perconti have handled hundreds of complex nursing home cases involving injuries arising out of Illinois Nursing Home Care Act violations. These cases include securing a record $2.9 million jury verdict against a suburban Homewood nursing home for the family of a deceased resident who suffocated due to the home’s negligent care of her tracheostomy tube.
WQAD News reported today on the latest surprise Illinois nursing home inspections conducted as part of Operation Guardian. The project, spearheaded by the Attorney General’s Office, is aimed at conducting unannounced visits at these facilities to ensure the safety of nursing home residents and compliance with state and federal laws.
The visits have gained attention both for the poor conditions found at some facilities and the wanted criminals arrested. In every single one of the inspections to date, nursing homes have been found to violate Illinois nursing home law in permitted residents with outstanding arrest warrants to live in the facilities. This conduct puts all residents’ safety at risk. The latest inspections at two northern Illinois facilities—East Moline Nursing and Rehab and East Moline and Galesburg Terrace—led to one arrest, this time of a nursing home employee.
While Operation Guardian seeks to root out some potential dangerous residents, the vast majority of potentially harmful nursing home residents will remain hidden. That is why it is imperative for nursing homes to conduct their own screening protocols to keep out particularly dangerous individuals. On top of that, these facilities need to provide careful monitoring of all complaints from one resident against another.
We have previously discussed the efforts being fought to limit damage awards possible in nursing home liability lawsuits. Another development on that front will come when the Illinois Supreme Court decides the case of Thomas Vincent v. Alden-Park Strathmoor, Inc. – determining whether punitive damages are available for suits filed under the state’s Nursing Home Care Act. As explained in the Chicago Daily Law Bulletin, the law allows survivors of victims of willful and wanton nursing home conduct to sue the facilities for the death of their loved one.
Specifically at issues is whether the responsible nursing home can be charged punitive damages for its egregious conduct. Those damages are levied as a form of punishment and deterrence against the offender. Two of our attorneys, Founder Steven Levin & associate Michael F. Bonamarte IV, filed an amicus brief on behalf of the Illinois Trial Lawyers Association in support of the Plaintiffs in this case. Our position was clear that the Act allowed the jury the option of awarding punitive damage if they deemed it necessary after hearing all of the evidence in the case.
Steven Levin explained that the punitive damage possibility is “a crucial safety rule and it’s an important principle that our most vulnerable citizens need.”
The perverse effect of disallowing the damages would make it cheaper for the nursing home if the resident dies from their poor care instead of being injured.
Another unfortunate example of elder abuse announced yesterday in Florida highlights the constant need to provide close scrutiny of all facilities providing care to our vulnerable seniors.
ABC Action News reported on the arrest of the Juanita Jackson Wright an assisted facility operator. Ms. Wright operated five nursing home which were supposed to provide critical care to elderly residents in the area. However, the state task force charged with rooting out illegal and negligent Medicare and Medicaid conduct discovered the three of those facilities were not even licensed by the state.
Of course, states require these facilities to maintain a proper license in order to ensure that the facility is abiding by all of the legal requirements enacted to ensure proper care of the residents at the home, including adequate staffing levels, appropriate emergency training, physical safeguards at the facility, and many other requirements.
Besides not obtaining licenses, Ms. Wright’s nursing homes had already been condemned by state officials. Investigators had discovered so many errors and dangerous conditions at the facility that they determined the homes to be unfit for habitation.
Our Chicago nursing home lawyers at Levin & Perconti are experienced in holding nursing homes accountable. We have fought time and again for residents who have been injured and neglected in homes failing to abide by state and federal law. For example, we successfully negotiated a $1.5 million settlement with a nursing home that had violated that Nursing Home Care Reform Act. The legal and technical requirements created to monitor these facilities can be dense and confusing. That is exactly why you should seek out experts who have years of experience understanding these laws and fighting for the victims when they have been ignored. If you suspect any questionable behavior at a nursing home nearby, please don’t wait until it is too late. Contact a nursing home attorney immediately.
Follow the link to read more about this latest example of nursing home neglect.
Pressure-related injuries are a common problem in elderly residents living in nursing homes, due to the fact that many nursing home residents are immobile or have limited mobility. Oftentimes, these residents cannot turn themselves on a regular basis or reposition themselves easily. When a person stays in one position for a signficant period of time, the constant pressure cuts off circulation and this causes tissue to die. The most common areas that pressure sores form are on a person's elbows, sacrum, hips, ankles and heels. According to a Center for Disease Control study that surveyed over 1500 nursing homes in 2004, with the findings released in 2009, over eleven percent of all nursing home residents suffered from a pressure sore of some stage.
It is easier to prevent a pressure sore than to treat one that has already formed. Therefore, it is crucial for nursing home staff to employ measures to prevent residents from forming sores in the first place. When a nursing home resident is admitted to a facility, they are assessed to determine their risk for bed sores. If a resident is deemed to be at high-risk for developing pressure sores, nursing home staff members must develop a plan to address this risk and implement the plan accordingly in order to prevent sores.
If a resident is at-risk, a nursing home should perform daily skin-checks to monitor the resident's skin integrity to determine whether the resident's skin is intact. A nursing home may also use devices, such as pressure-relieving pads and mattresses, to reduce pressure to bony prominences. In addition to devices, nursing home staff must turn and reposition at-risk residents every few hours and ensure that their skin is clean and dry. Moisture and unsanitary conditions increase the chances of developing sores, so it is important for staff to clean residents thoroughly after bladder or bowel movements and make sure the area is completely dry. Residents must also stay well-nourished and hydrated. Malnutrition heightens the risk for pressure ulcers and slows the healing process.
Although nursing home staff members should be well-trained to address a resident's risk, residents often fall victim to pressure sores. If not identified and treated in a timely manner, pressure sores can worsen and become infected. In many instances, residents die of complications when their blood becomes infected as a result of a pressure sore. If a nursing home takes all the proper steps to prevent and treat pressure sores and one still forms, it may have been unavoidable. However, sometimes nursing home staff members and physicians fail to follow the standard of care for treating at-risk residents. When a resident suffers injury or death as a result of a nursing home negligence, the facility may be held liable for its actions.
Illinois nursing home residents who have suffered serious pressure sores and related injury or death in facilities throughout the state may be entitled to seek compensation for their suffering. If you have a loved one living in an Illinois nursing home who has developed pressure ulcers, it is important to first seek medical treatment of the wounds. If you believe that the injuries are a result of neglect, contact a nursing home lawyer to discuss your potential claim. Our experienced team is happy to evaluate your claim and advise you on your legal options.
The National Citizen’s Coalition for Nursing Home Reform has joined with Geriatric Nursing Centers in order to develop quality care for Nursing Homes. The important and complex role of nursing in culture change is examined in the newly released issue paper entitled Nurses’ Involvement in Nursing Home Culture Change: Overcoming Barriers, Advancing Opportunities. The paper discusses the idea that in nursing homes, the movement away from institutional provider-driven models of care to more humane consumer-driven models of care that embrace flexibility and resident self-determination has come to be known as culture change. The NCCHNR is striving hard to adhere to the Nursing Home Reform Act of 1987 which states that each resident must provide the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. To read more about the nursing home study, please click the link.
A Chicago man was found beaten to death in the South Side nursing home All Faith Pavilion. The Cook County medical examiner's office determined that the Alzheimer's patient was beaten to death in the nursing home. All Faith Pavilion has a history of Illinois Department of Health Violations for nursing home abuse and nursing home neglect, having paid upwards of $80,000 in fines since 2004. The home's record of elder abuse includes two prior deaths. According to police information, the man's death was ruled a homicide.
See video coverage here.
Steve Levin and Michael Bonamarte of the law firm of Levin & Perconti recently settled a nursing home lawsuit for $532,000.000 on behalf of the family of an 83 year old nursing home resident who died from injuries she sustained during a fall.
The resident, who had lived at the Woodbridge Pavilion Nursing Home for approximately 3 years, had fallen several times at home. The Defendant nursing home knew she was a risk for falls. Despite this knowledge the Defendant nursing home failed to ensure that the resident was appropriately monitored and supervised.
As a result of the negligence of the Defendant nursing home and the failure on the part of the staff the resident wandered through an exit door and fell down a flight of stairs. The fall resulted in a bleed in her brain which caused her death a week later.
The nursing home was cited by the Illinois Department of Public Health for violations of the Illinois Administrative Code and OBRA regulations.
Click here for the press release