Elder Financial Abuse Reaching Crisis Levels, Say Researchers

After working in the area for decades, our Chicago nursing home abuse lawyers know that the problems of Illinois nursing home neglect and abuse remain hidden from much of the public. Community members are aware that some mistreatment occurs at these facilities, but very few truly appreciate the true scope of the problem. Perhaps the single biggest reason why the problem remains hidden is that many of the victims simply never seek out any accountability and their suffering dies with them. Only a fraction of the abuse that actually occurs ever results in legal actions begin taken against the wrongdoers.

Researchers have long been trying to get a better understanding of the actual extent of the problem. Recently, one expert in the area released new information about the scope of at least one form of senior mistreatment: elder financial exploitation. If his numbers prove correct, financial abuse of the elderly is probably the single most common form of elder abuse and represents a national crisis that needs to receive much more attention that it currently does.

As explained in a story in yesterday South Coast Today, one of the nation’s leading geriatricians and social scientists explained that theft and fraud targeting the elderly is an epidemic. He made the claims in combination with the release of new findings which are being considered the first credible scientific report on the extent of this mistreatment. He summarized by declaring, “There are millions and millions of people who are affected, and it is enormous in its scope…If it were a disease, we would probably say it is an epidemic.”

According to his findings, at a bare minimum at least 4.2% of the entire national senior population has been taken advantage of financially. That amounts to over 2.5 million victims. Yet, the team is quick to admit that their number should be considered a baseline, because it likely underreports the problem significantly. Many seniors remain embarrassed to admit that they have been taken advantage of, and so they will hide their situation at all costs—including when asked by researchers. In addition, those seniors who were suffering from cognitive impairments, like dementia and Alzheimer’s, are the most likely to be exploited, but they were not included in this latest survey. Any way you slice it, this problem is widespread. It occurs in nursing homes, assisted-living rooms, conference rooms, and dining room tables. All of us must do our part to identify when a senior might be taken advantage of financially and step-up when the time is right.

The researcher involved in this latest effort is quite experienced in these issues, having worked in similar studies for years. In 1998 he and his team released the groundbreaking finding that seniors who have been neglected or abused have higher mortality rates that those who had not. The increased mortality rates were independent of the consequences of neglect itself. In other words, abused seniors were likely to suffer a wide range of other complications (outside of those directly attributable to the abuse) as a result of their mistreatment. It was yet another strong piece of evidence highlighting the need to devote more time to ensure the proper treatment of our seniors in all contexts, including the stamping out of nursing home abuse and neglect.

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Chicago Nursing Home Neglect Attorney John J. Perconti Interviewed About Nursing Home Agreements

This week John Perconti, one of our Chicago nursing home abuse lawyers, was asked to provide some perspective on recent nursing home related legal decisions for the popular database Lawyers.com. The two state Supreme Court cases (Shotts v. OP Winter Haven and Gessa v. Manor Care of Florida) have both been heralded as important wins for nursing home residents and their advocates. The cases struck down certain aspects of nursing home arbitration clauses which put damage caps in place which were lower than those allowable in state courts.

Our Illinois nursing home neglect lawyers have repeatedly warned local consumers about the dangers of these arbitration clauses. They represent a backhanded way that these facilities seek to avoid being held accountable for their conduct which harms residents. The clauses are parts of the admissions contracts that residents and their families sign when they begin living in a home. When signing the complex, confusing, and overwhelming documents consumers often unknowingly sign away a bevy of rights. The agreements often include clauses which force disagreements to be litigated via arbitration (not the regular court system). In addition, the clauses also attempt to limit the award that can be recovered. That was the issue in each of these major cases.

Fortunately, the courts here issued important rulings respecting the rights of community members not to have their substantive rights infringed when they use these agreements. In Schotts, the issue was whether a forced arbitration clause was valid which held that the arbiter was not allowed to award punitive damages. In Gessa, a provision in the arbitration agreement capped non-economic damages at $250,000 in addition to banning all punitive damage. The courts found both clauses invalid.

Our Chicago nursing home abuse attorney John Perconti explained how these decisions (which were out of Florida) may impact similar agreements in states across the country. Nursing homes in other states may now think twice before imposing these damage caps in their agreements. He went on to note that fortunately these clauses are not often used in Illinois. He said, “We have not seen any clauses imposing damage caps in any of the nursing home contracts as they would violate Illinois public policy and undermine the remedies set forth in the Illinois Nursing Home Care Act.”

Courts are prone to strike down these agreements if they go against the spirit of legislation meant to deter nursing home neglect or abuse. Similarly, many of these agreements are signed by families in situations akin to duress—often after a loved one was hospitalized. Attorney Perconti noted that “It is analogous to patients admitted to the emergency room or hospital who sign without fully understanding the legalities involved.”

While these court ruling are positive protections for nursing home consumers. It remains important for all those signing nursing home admission documents to pay particular attention to the materials. We recommend that arbitration clauses not be signed. The consumer can ask that the clause be stricken from the contract. Many of these facilities are hoping to fill their beds, and they may be open to eliminate the clause if it means that they will get another resident. Failure to make the demand means that families are signing away vital rights to a jury trial, the ability to collect evidence, or appeal rulings.

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Nursing Home Lawsuit Filed For Resident Who Died After Being Left on Bus

M Live News reported this week on a new nursing home neglect lawsuit stemming from a particularly tragic case of inadequate care provided by caregivers. The tragedy struck three years ago as the 87-year old woman was on a facility shopping trip with other residents. After collecting groceries, the resident boarded the bus back to the facility. However, when they arrived, the facility caregivers left the woman on the bus and closed it up. The victim was left without aide on the vehicle for the next fourteen hours. Over the course of that time the woman became so hungry, thirsty, and disoriented that she opened the first aid kit on the bus and drank hydrogen peroxide and ate Tylenol.

A widespread search was commenced once facility staff noticed that she was gone. The woman’s family, employees, and police officers scoured the area before finding the resident in the bus. She was face down in the vehicle and soaked in urine by the time she was rescued. She did not survive the ordeal. Of course, our Illinois nursing home abuse lawyers know that in all cases like this, the families of the victims often will spend much time wondering if there is anything that they should have done to prevent the tragic death. The daughter of the victim in this case explains that she did her best to ensure that the facility was a good fit for her mother. She had checked the home’s records, and visited the facility during each shift to check on the quality of care provided to residents at all times.

One thing that she didn’t check was the type of insurance that the facility had to pay for cases of nursing home neglect. Unfortunately, business wrangling and insurance issues have ultimately made it difficult for the family to recover. The nursing home company which owned the facility when the negligence took place dissolved after the suit was filed. In fact, the company didn’t even respond to requests for documents during the discovery process. As a result the judge in the case awarded a default of judgment of $1.65 million to the family. However, they have not been able to recover the amount, because the company’s insurance does not seem to cover the event. The situation has led many in the community to issue repeat calls for laws which would require nursing homes to maintain liability insurance. Previous attempts to enact legislation to that effect have failed in the state legislature along party lines.

Each Chicago nursing home neglect lawyer at our firm is propelled to continue fighting for these victims based on situations like this one. The entire reason that many residents enter these homes is because they have unique vulnerabilities with which they need assistance. Aid is needed for any number of basic tasks like eating, bathing, dressing, and with transportation. Many families help their loved ones enter these homes specifically because they assume that their quality of life will be better when they are around those who can help with these tasks twenty four hours a day. It remains appalling when not only is that help not provided adequately, but it is provided in such a deficient manner that it leads to tragic deaths like the one. These cases of nursing home abuse must be stopped, and those facilities involved must pay for the consequences and enact changes to ensure no victim ever faces the same situation.

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Colonial Manor Nursing Home Makes Illinois Nursing Home Quarterly Violator List

The Illinois Department of Health and Human Services recently released the latest Quarterly Violators List. As blog readers know, the list includes a summary of recent facilities across the state that have been cited by regulators for Illinois nursing home neglect or abuse. It is an important way that the quality of care provided at these locations is made public and shared with consumers. A close reading of the list provides information on exactly what occurred at each facility which resulted in the citations and fine. Our Chicago nursing home neglect lawyers frequently monitor the lists to keep abreast of instance of inadequate care being provided at local home. Unfortunately the same mistakes are seen again and against at nursing home all across Illinois.

For example, one nursing home in Zeigler, Illinois, the Colonial Manor, was cited for several care violations and issued a $20,000 fine. According to the report, the Illinois nursing home neglect citations were issued for a series of lapses in care, including one case where the facility employees failed to take steps that might have saved the life of a resident in need of CPR. The resident had been found unresponsive without a heart beat or pulse—it was a fifty one year old resident who had suffered a heart attack. According to facility regulations, the care workers who found the woman should have begun performing CPR in order to attempt to resuscitate her. They did not. In addition, the nursing staff did not even call 911 or seek out other emergency medical help, and the resident died at the facility.

In a separate incident, staff members at the same facility were cited for failing to properly document and chart the care provided to a resident at the home who died of pneumonia. The resident entered the facility with healthcare associated pneumonia, requiring close observation by nursing staff to ensure that his condition did not deteriorate and necessitate special care. In this case, the resident began showing clear signs of problems, being given forty five doses of cough medicine. However, the resident’s doctor was not informed of these changes. The doctor was supposed to have been told if the cough persisted for longer than twenty four hours. The nurses also failed to properly explain why forty five different doses of the cough medication were provided. The resident eventually died at the facility from the pneumonia.

In a third incident for which the facility was cited, staff members at the home failed to monitor the status of at least seven residents who did not receive the medication that they were prescribed. These residents were ordered to have medication to help promote proper bowel movements. The medications were not given, and the status of the residents was not properly monitored. This oversight placed each of the residents as risk of developing preventable complications from constipation.

Any Illinois nursing home lawyer can explain that time and again certain caregivers at these homes fail to take basic steps to keep residents safe. It is nursing home neglect for nurses and aides not to perform timely medical procedures or inform physicians of changes in condition which may necessitate additional care. These lapses may seem minor, but the consequences, as demonstrated in these cases, can be serious.

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Study of Regulation of Nursing Homes Shows Self Reporting Ineffective

Accountability breeds improvements. It is the same is virtually all aspects of life and business. Our Chicago nursing home neglect lawyers know that the same principles apply when it comes to ensuring that improper care at local assisted living facilities is rooted out and exposed for public scrutiny. If seniors and those with disabilities are allowed to suffer in silence, then there is little chance that their mistreatment will ever be changed. The facilities that are willing to allow poor care to become the norm at their facilities in the first place are usually the same ones that will not unilaterally make changes to improve that care unless they are forced.

The push to eliminate elder abuse and make nursing home safer is at the root of programs like the U.S. Centers for Medicare and Medicaid’s “Special Focus Facilities” (SFF). As our nursing home abuse lawyers have previously explained, this is a list that includes the worst performing facilities based on analysis from the previous three years. SFFs are expected to slowly improve after they make the dubious lists. In theory, they are given between eighteen and twenty four months to show signs of improvement. Failure to act appropriately and improve as expected is grounds for termination from participation in CMS programs. Considering that most homes rely heavily on CMS funds for survival, termination from the program is essentially a forced closure of the facility. A few statewide facilities that have been cited for Illinois nursing home neglect are current deemed SFFs.

However, a new study published in Medicare Advocacy suggests that the data collection methods used by CMS to evaluate homes and create the SFF list are flawed. At the root of the problem is the self-reporting aspect of the evaluation process. Those involved in this latest research found that there was disconnect between the self-reported figures sent in by the SFF facilities itself and the survey data collected on the same measures. This was found in staffing levels as well as various other quality measures (such as “level of pain”).

It is suggested that the discrepancy suggests that the data that is self-reported for the homes is unreliable. If there are not audits on a facility’s staffing and quality measures data, then it is difficult to trust any of the findings that they include. This doubt cases suspicion on all proposals which would seek to “streamline” the process and allow less thorough inspections or surveys for certain facilities.

Overall, the authors of the study made the following recommendations in light of their findings:

1. All self-reported data, including staffing and quality of care measure be removed from inclusion in the Nursing Home Compare data.

2.”Pain” be removed as a quality measure for comparison purposes

3. No SFF be given more than one total star (out of a five star system) until it is removed from the SFF list. Otherwise, the authors argue, consumers are often misled into thinking that these homes are performing better than in actuality.

4. All policy proposals be rejected which would revise the federal survey process which includes or relies on self-reporting.

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New Brookings Report Reveals Dark Side of Nursing Home Drug Use

Our Chicago nursing home neglect lawyers are encouraged that more and more attention is being focused on an issue that affects thousands of local residents but for far too long went unnoticed: inappropriate nursing home drug use. Last week the Brookings Institute released a comprehensive new report on the subject, “Uncomfortably Numb: The Dark Side of Inappropriate Drug Use in Nursing Homes.” One central feature of the report involves the clear conflicts of interest and skewing of decisions in the long-term care industry based on the financial incentives of those involved. This is particularly true when it comes to the actions of long-term care pharmacies which leads to dangerous and unnecessary drug use in nursing homes—a subtle but prevalent form of nursing home abuse. Beyond placing the lives of these seniors in danger, the conflicts also run up the costs of the Medicare Program. In these times of tight budgets, it is clear that changes need to be made that will both make patients safer and lower costs.

The report found that the risk of drug-induced harm in these homes is at unacceptable levels. Upwards of half of all nursing home residents are given drugs inappropriately. This figure was reached by a U.S. Health and Human Services Office of Inspector General report from earlier this year. That report looked at atypical antipsychotic drug use in homes and found that 51% of those prescriptions to Medicare patients were wrongly prescribed. A staggering eighty three percent of these atypical drug claims were for “off label” reasons, and eighty eight percent were for residents with dementia. This was the case even though, as all nursing home lawyers know, given these drugs to dementia patients come with an increased risk of death. The FDA mandates that this risk be placed on all boxes of the drugs. There is simply no excuse for so many facilities to commit this nursing home neglect by failing to protect these already vulnerable patients from unnecessary drug use.

One of the main reasons why many advocates suspect that the drug problems are so prevalent are the misaligned financial incentives of those doling out the drugs. Certain pharmacies are connected with certain nursing homes. These pharmacies rake in millions every year from taxpayers via use of Medicare Part D for these drug dispensations. Essentially these pharmacies have significant market power, because they control use of 90 percent of the long-term care market share. As a result, they can force pharmaceutical manufacturers to make financial concessions in exchange for “moving” their product.

Not only that, but these pharmaceutical companies employ the pharmacists who serve each nursing home. Those pharmacists are involved in making recommendations about what drugs a patient should receive. In fact, government law requires pharmacy reported to be acted upon by nursing home staff. That means that individual pharmacists are forced to make drug decisions that financially affect his or her employer. This is a situation that cannot stand. It is an untenable conflict which places resident lives at risk and costs taxpayers millions and millions in unnecessary Medicare expenditures.

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New Wage Regulations For Senior Home Care Workers

Considering the widespread reported instance of Illinois nursing home neglect, it is no wonder than many local seniors and disabled residents would much prefer to stay in their own home when they need extra long-term care. Earlier this week we reported on the settlement in a high-profile Illinois nursing home lawsuit involving individuals with physical disabilities. Those residents won the right to have their public assistance applied to at-home care which will allow them to leave the nursing home. The slow shift away from nursing homes is an important development that will likely have quality of life benefits for all those who are able to take advantage.

However, it is important not to forget that Illinois elder abuse can just as easily occur outside of the nursing home as it can inside it. In fact, there are countless cases of documented abuse each year, often committed by the very people who are supposed to help those while at home (including family members). It remains vital for families seeking to choose an appropriate at-home care worker to take the time to learn about their options and make an informed choice. Often, choosing one who works via a professional placement agency is the far safest and most reliable choice.

Recently many advocates have voiced concerns that there is shortage of quality at-home care workers. Part of the problem, they explain, is that many of these workers were actually exempt from the minimum wage laws under a bizarre “companion” loophole. The exemption from the requirement to pay minimum wages and for overtime was meant to apply to teen babysitters. Instead, it was used by some unscrupulously to deny these elder care home workers the same protections. In fact, a 2007 U.S. Supreme Court case affirmed that these workers were exempt, forcing Congress or the labor administration to change the rules. This was a troubling proposition from a basic fairness standpoint. But beyond that, it also placed seniors at risk. Elder neglect and abuse perpetrated by overworked and underpaid at-home care workers was much more likely than when the care was provided by those who were on the same playing field as all other national workers.

Fortunately, that may soon change as President Obama has proposed changing the rules to apply the laws to these nearly two million at-home care workers. This would change the nearly 37-year old exemption of these individuals from the Fair Labor Standards Act. In making the proposals the President explained that the action “will ensure that these men and woman get paid fairly for a service that a growing number of older Americans couldn’t live without.” Women were disproportionately affected, as nearly 92% of these workers are female. Experts explain that the overtime inclusion will likely be the largest change. Most of these individuals already received the minimum wage, however, man y more did not receive the time and a half premium when they worked more than forty hours a week. Medicare increases would apparently be modest, with anywhere from a .06 percent to .29 percent increase in total federal and state home care payments.

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“Judicial Hellhole” Rankings Distort Purpose of Civil Justice System

Each Chicago medical malpractice lawyer and nursing home neglect attorney at our firm is very familiar with the constant misconceptions that are shared about the legal system each day. It remains startling that there are so many falsehoods or distorted statements made and perpetuated in news stories about how the civil justice system works the way it does and why. These misguided portrayals are most often pushed by those who are simultaneously hoping to enact policy changes which alter rules about who can file lawsuits, how they are adjudicated, and what victims receive upon a liability ruling. It goes without saying that when discussing changes to the system that so many have depended on for hundreds of years at the very least the debate should begin with honest assessments about the current reality of that system. Far too often that is not the case.

For example, take the example of the headline catching “Judicial Hellhole” list put forward every year by a group that wants to take away the rights of injury victims via tort reform legislation. Two southern Illinois counties recently made the list and Cook County was placed on a “watch list.” Of course, these arbitrary designations are not at all based on any objective criteria alleging any improper legal work is being done. Instead, the list is based almost entirely on the random decisions of a few involved with the organization and their determination on which locations injury victims happen to win certain awards following jury trials.

These lists do nothing more than paint an incorrect picture of the justice system and rile up public resentment for reasons that have no connection to fact. Disturbingly, it is lists like this (and the media attention that they receive) that results in some members of the public thinking that so many problems can be solved by taking away victims legal rights. Everything from lowering medical costs to lowering the country’s fiscal imbalance could be cured if only tort reform were enacted—or so say some.

Tort reform proposals always include medical malpractice provisions and increasingly would apply to many other types of injury cases—including those involving nursing home abuse. The most popular tort reform proposal is damage caps would limit the amount that a jury could award following an injury. The call for tort reform is often made as one that has overwhelming public support. However, what every Chicago medical malpractice attorney at our firm knows, but what tort reformers ignore, is that awards are almost always decided upon by juries who are made up of the very people who supposedly overwhelmingly want tort reform. If so many of these tort reform groups were to be believed, one might suspect that plaintiff’s attorneys simply decided how much money their clients should get without any input from others. Of course, the reality is that in every case the both the plaintiff and defendant are allowed to share specific evidence with a group of community members chosen by both parties. It is only after balanced process that those groups of citizens decide upon a fair outcome.


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Nursing Home Neglect Fine Given After Nurse Refuses to Perform Procedure

Our Chicago nursing home abuse lawyers were discouraged to read a story in last week’s The Daily Enterprise regarding a fine imposed on a nursing home after one of its employees was charged with intentional nursing home abuse. The fine was issued last summer by the federal body which pays for most nursing home care—the Centers for Medicare and Medicaid Services (CMS). In total, the negligent facility was fined $20,000 for failing to protect the resident and failing to investigate the accusations of abuse in a timely fashion.

The nursing home mistreatment was first uncovered during a survey inspection of the facility by federal investigators. At least two specific instances of egregious abuse and neglect were uncovered. In one case, a licensed practical nurse who worked at the facility refused to administer necessary tracheostomy care on several different occasions on a resident who needed it performed. The suction procedure is crucial in allowing certain residents with various ailments the ability to breathe easily and properly. Failure to perform the procedure put the resident in severe discomfort and can have serious long-term consequences. Upon the nurse’s blatant refusal to perform the procedure, the resident asked to call his mother; however the nurse refused that request. Eventually, the resident was forced to send out a plea for help on Facebook, asking a friend to contact his mother.

When the mother arrived she warned the nursing supervisor of the egregious nursing home abuse. The supervisor was forced to administer the tracheostomy herself. However, even after all of that, the supervisor did not remove the nurse from duty. The supervisor explains that she was worried that the facility would be short staffed if the nurse was relieved at that time. Of course, our Illinois nursing home lawyers have often explained how short staffing is at the root of many instances of mistreatment at these long-term care facilities. So many potential problems can arise when there are not enough properly trained staff members around. The same facility was also cited for failing to properly investigate complaints from the very same resident that his Passy-Muir valve—a device used to help him speak—was removed. As a result, he could not talk to those around him.

The nursing home in question claims that it took reasonable steps after the incidents to improve care. For example, the nurse that refused to perform the tracheostomy was apparently fired when sufficient evidence of potential abuse was uncovered. In addition, the nurse supervisor was re-educated on her responsibilities when it comes to dealing with potential instances of abuse. However, it is one thing to claim that negligent staff members were “re-trained” it is another to ensure that similar instances of neglect and failure to supervise never actually occur again.

It is encouraging that at least some steps were claimed to have been taken in response to this abuse and neglect. Clearly those steps would not have been taken had the facility not be forced to be held accountable. In far too many situations that accountability remains absent. Federal inspectors are able to reach only a small fraction of nursing homes, and even when inspectors do arrive they are sometimes unable to learn about a wide range of problems at the homes. That is why residents and their families are able to demand accountability on their own via use of the civil justice system.

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target="_blank"Lake County Pays Levin & Perconti Client $1 Million in Negligence Case

New Report: Insurance Companies Manufacture “Crisis” – Legal System Blamed for Rate Hikes

Each Chicago nursing home lawyer at our firm is actively involved in the fight to prevent unnecessary “tort reform” measures. As we have discussed, a few federal proposals to limit the legal rights of injury victims have been offered that would affect the ability to demand accountability of negligent nursing homes. These proposals are universally misguided, unnecessary, and dangerous. Unfortunately they represent a sophisticated power grab involving large, wealthy corporations who are seeking to limit the rights of regular community members from demanding that the companies actually pay for the consequences of their mistakes.

As a comprehensive new report from the Center for Justice and Democracy explains, one of the ways that these companies “sell” tort reform to the masses is with the misguided claim that the justice system is responsible for an increase in insurance costs. The report, entitled “Repeat Offender: How The Insurance Industry Manufactures Crises and Harms America,” reveals that insurance companies may be colluding to send business premiums skyrocketing in the new year. The report authors argue that the hikes will be sold by the companies as necessary because of a fake “crisis.” Yet this so-called crisis does not actually exist.

Instead, the crisis will be manufactured in order to turn the “soft” insurance market into a “hard” one. Soft markets are those that benefit consumers, where premiums are low and insurers fight to attract to customers. However, if these companies work together they can shift it to a “hard” market where premiums rise while coverage falls. The report explains how the claimed need to make these changes is accomplished by simply manipulating the numbers. For example, the claimed insurance company losses include a category of losses that have not even occurred yet but are claimed to be “expected.”

In reality the insurance industry is going just fine. Last year, Best’s Aggregate and Averages explained that the insurance industry had cash surpluses of $580 billion. That huge sum does not even include the money that the companies set aside to cover the estimated costs of future claims. Those reserves are only set to increase as insurance companies may raise rates on business (and some personal customers) as much as 100 to 200 percent.

Most industries are not allowed to collude in this way to force increases. However, insurance companies are exempt from antitrust provisions which have applied to other industries since the McCarran-Ferguson Act of 1944. As a result of their exemption, insurance companies are allowed to “pressure their own competitors to stop competing for premium dollars and to raise rates and reserves as an entire industry.”

Time and again nursing home abuse has been curbed because average community members stood up and used the justice system to make negligence facilities enact changes to keep residents safe. Yet, our Chicago nursing home neglect lawyers know that the ability to do so may be severely curtailed if certain tort reform measures become law. We urge all advocates of decent senior care to read up on this latest insurance industry maneuver to make even more money at the expense of nursing home neglect victims.

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Illinois Disability Lawsuit Settlement May Receive Final Approval

The Pantagraph reported this week on the latest developments in a local case that our Chicago nursing home neglect lawyers have followed closely. Back in August U.S. District Judge Joan Humphrey Lefkow gave her initial approve to a settlement that had been reached in a case filed on behalf of 20,000 low-income Cook County residents with disabilities. At the heart of the original lawsuit was a claim that these individuals should have living options outside of the nursing homes. Instead, proponents argued, they should be given more resources to live on their own if possible. The 2007 lawsuit was filed by Access Living—a local advocacy group. The group argued in the suit that failure to provide alternative housing options violated the involved individuals’ civil rights. Every Illinois nursing home abuse attorney at our firm understands why these individuals would seek alternative living options, as the vast majority of individuals in these nursing homes would live elsewhere if they had other options.

According to the settlement reached earlier this year, the state of Illinois will provide housing assistance and some other financial support to help residents with disabilities who chose to leave the nursing home where they currently live. These residents will receive security deposit aid, have wheelchair ramps build where appropriate, and make other accommodations which might allow people with physical disabilities to live on their own. In the past this assistance was available to those with developmental and mental illnesses, but not physical disabilities.

More specifically, the first phase of the proposed settlement would involve the state spending $10 million on houses and apartments for upwards of 1,100 current nursing home residents. There would then be a second phase where many more individuals would be aided. Interestingly, advocates argued that while there would be up-front costs, in the long-term the deal would actually save the state money. They suggested that over $2,300 per person could be annually saved by allowing those who are eligible to live in houses and apartments instead of in nursing homes.

Two other similar suits were also filed roughly at the same time. Those lawsuits also involved allegations of improper housing options for people with mental illnesses and disabilities. A similar deal was approved earlier this year in one of those cases which would allow at least 6,000 individuals with disabilities to move into alternative living arrangements. The other suit also reached a settlement earlier this year related to moving 4,500 individuals with mental illnesses out of nursing homes.

Hopefully this latest settlement works as intended, helping resident leave facilities who feel comfortable doing so. It would be a mistake to assume that Illinois nursing home neglect occurs in all settings and that we should get individuals out of them entirely. Some facilities provide great care that is appropriate for those residents who rely on it. However, there remain far too many homes that cut corners, cut staff, and otherwise fail to prioritize resident well-being. Nursing home abuse abounds in those places, and it is completely natural for resources to be spent helping those leave these plans that are able.

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Attorney Steve Levin Comments on Criminal Sentencing in Angel of Death Case

Last week one of the nurses involved in the “Angel of Death” Illinois nursing home abuse situation was sentenced following a plea deal being reached in her case. Our Illinois nursing home attorneys are representing one of the families involved in this tragedy in a civil lawsuit. As we’ve frequently reported, the case involves the intentional drugging of certain nursing home residents by a nurse of the facility. The nurse intentionally administered the drugs to the residents—leading to the deaths of several of them—under the notion that she was “helping” put them out of their apparent misery.

As ABC News reported, the former nurse in the case pled guilty to one count of criminal neglect. As a result of her plea deal she admitted her guilt for at least one felony. Agreeing to the deal allows her to avoid jail time, as she was instead sentenced to probation. Per the terms of the plea deal approved last week, the nurse admitted to one count of neglect so that the other five counts were dropped by prosecutors. This resulted in a two year probation sentence.

This resolution does not end the legal issues related to the drugging of residents in 2006. As often occurs in egregious cases of nursing home abuse or mistreatment like this one, the situation spawned both criminal and civil cases. For those not familiar with the working of the legal system, this can seem confusing. Criminal and civil legal cases, even if they stem from the same events, are very different. At a most basic level each case requires different elements to be proven and come with different burdens of proof regarding those elements. For example, the prosecution in the criminal case had to show that the nurse’s mental state at the time of her actions was of “criminal neglect” which is a higher level of culpability than that required to be shown in a civil case. In addition, the prosecution was required to prove that she exhibited that level of neglect “beyond a reasonable doubt.” Conversely, mere civil neglect need only be proven “by a preponderance of the evidence.”

These distinctions may not seem all that great when read in an article, but in the context of proving a case at trial the distinctions are crucially important. The difference between these distinctions is exactly why many individuals are acquitted of criminal charges but then deemed liable in subsequent civil suits (the O.J. Simpson murder case is a high-profile example).

The increased difficulty in a criminal prosecution (as opposed to civil liability) results in many plea deals being reached in these kinds of cases. A plea deal being reached should never be taken as evidence that an individual did not actually engage in the charged conduct. Instead, as Attorney Levin explained in the ABC News story on this Illinois nursing home abuse case, the pleas are often just a reflection of the inherent difficulty in prosecuting certain criminal cases. The situation is likely to be much different when it comes to the ongoing civil case.

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Evidentiary Matters Settled in Second Angel of Death Nursing Home Case

Diabetes and Depression May Combine to Increase Dementia Risk

Many nursing home residents have dementia. The cognitive mental deterioration is essentially known as the most common indicator of old age, but many fail to grasp the true problems that it causes for all sufferers and their families. Residents with dementia find their worlds turned upside down, and every day is a struggle. Our Chicago nursing home neglect lawyers have often discussed on these pages how many facilities do a very poor job of working to maximize the quality of life of these residents. That is on top of the now well-publicized issues associated with antipsychotic use to control these residents which leads to an increased risk of death.

Interestingly, a new study published in Medline Plus last week has found that there is a connection between developing dementia and having diabetes combined with depression. The study specifically found a marked increase in dementia risk for those with type 2 diabetes who struggle with depression. These individuals are roughly two times as likely to develop the mental condition compared with those who also have diabetes but no depression. Those involved in the study with the increased risk generally developed dementia symptoms within three to five years after being diagnosed with depression.

The fact that depression plays a role is in dementia development is a somewhat novel idea, but researchers have long known that diabetes itself plays a role in dementia. One expert involved in this latest study explained that diabetes also likely doubles the risk of dementia. Those with depression therefore face an increased risk on top of their already high susceptibilities. This combination is worrisome considering that a particularly high amount of diabetes patients are also suffering from depression. Much research suggest that as many as twenty percent of diabetics are depressed.

This latest research was published this month in the Archives of General Psychiatry. In the article the authors note that dementia and diabetes are both some of the most persistent and widespread problems facing American senior citizens. They also lament that awareness of all of these factors is vital, because they interact with one another. Having diabetes increases the risk of becoming depressed and becoming depressed increases the likelihood of developing diabetes.

These findings make it even more important for all local facilities to work hard to improve the quality of life for all residents in the home. Illinois nursing home lawyers know that far too often the actual day to day happiness levels of these individuals is forgotten. However, if depression is now linked to dementia development, it becomes increasingly important for homes to take reasonable steps to ensure their residents have the opportunity to experience life as fully as possible, pursue their passions, and otherwise keep their mind active. Failing to consider the quality of life of residents is a subtle, but persistent, form of nursing home neglect that cannot afford to be ignored. The study’s authors noted that the vast majority of factors that lead to depression can be modified. These include eating a poor diet, maintaining a sedentary lifestyle, smoking, and similar characteristics.

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Elder Care Activists Worry About Roadblocks for Elder Watchdogs

The Miami Herald continued is close look at nursing home abuse and neglect by considering the ways in which those charged with helping keep seniors safe are actually being muzzled. The story shared the story of one volunteer advocate who worked with the state’s Long-term Care Ombudsman Program. The volunteer advocate had provided years of dedicated services, but program leaders were concerned about comments he had made suggesting that the program was too connected to the nursing home industry. The volunteer advocate worried that the program’s actions were compromised by this cozy relationship with those whom they are suppose to be monitoring. In the end the volunteer was fired. Disagreement remains over whether the man knew that his comments were likely to get him fired.

However, the advocate is certainly not the first to lose a job following a shake-up of Florida’s Ombudsman Program. According to Herald reports, this volunteer was only the latest in a string of firings and resignations by former elder care advocates who are concerned about the program’s decision to move in a “new direction.” Many of those departing advocates worry that elder care neglect and abuse will undoubtedly rise as the oversight of long-term care facilities weakens. They continue that it is not surprise that long-term care facility owners and operators have been very pleased with the “new direction” of the Ombudsman Program.

The problems with the agency began when the former Ombudsman was fired and replaced by a new individual recommended by an assisted living industry group. The new chief began slowing down the inspection and investigation rates conducted by the body, sparking widespread anger among those who actually perform the inspections and are seeking to root out nursing home neglect in the state. The vast majority of former ombudsman inspectors have reported sincere dissatisfaction with the conduct of the current leadership. It seems that the discontent is so pervasive that some employees are being dismissed essentially as “warning” to others to stop criticizing the group.

Statistics reveal the problem. Under the old system virtually every facility was inspected by volunteers in a year; some homes even got two inspections. However, under the new system, the inspection rate dropped for the first time in years, as 14% of homes did not get inspected at all. Also, before the changes volunteers investigated over 9,000 individual complaints, compared to 7,500 this year—a 17 percent reduction.

Many advocates also criticized changes in the inspection forms which they say will make it much harder for them to identify nursing home abuse, neglect, and poor conditions. In the past, inspectors could essentially visit different parts of the facility, ensure the kitchen was clean, bathrooms were sanitary, and similar common sense inspection tasks. However, they can no longer do that. Instead, the volunteers cannot look around and can only interview residents. In fact, last week an area grand jury actually issued a very critical report of the condition in these assisted living facilities, specifically noting that the old form was far superior for actually ensuring that residents’ rights were being respected.

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Suspicious Deaths in Nursing Homes Often Go Uninvestigated

The Detroit Free Press three-part investigative series on nursing home abuse and neglect continued last week with a look at the failure of many suspicious nursing home deaths to be fully and properly investigated. Not all nursing home deaths must be reported to a medical lab for further analysis on causes. Instead, most are not officially reported at all. The investigation into care at facilities in the state revealed that only a rarely are nursing home deaths investigated with an autopsy.

Nursing home law in the state requires a full medical examination when there are “violent, unexpected, or medically attended deaths.” In these cases the nursing home employees are supposed to call the examiner right away and not move the body unless instructed to do so. However, the independent investigation found that facility administrators failed to meet that standard, and some suspicious deaths were not reported for medical review as the law requires. The oversights are not rare. This one investigation alone found at least thirty three cases over only a three year period where clear nursing home care violations were made just before the death of a residents. The violations were a combination of omissions, staffing shortages, and other mistakes. In at least eight of those cases there was never any medical review of the death. No one was called, for example, when an 82-year old man fell, slammed his head (cracking his skull), and died from bleeding on the brain.

The head of the state’s medical examiner’s association explained that in the end it is up to the nursing home officials to decide whether or not an examiner is called. The medical examiners themselves have little ability to investigate or even become aware of suspicious deaths on their own. Of course, this presents a bit of a conflict when it comes to holding facilities accountable for their nursing home neglect. There are clear incentives for not reporting suspicious deaths caused (at least in part) by quality of care lapses.

This policy is distinct from that in other states which require all deaths to be reported to a medical examiner. The examiner often does not decide to perform an autopsy, but it at least ensures that the official is made aware of the death and can act depending on the circumstances. Illinois currently does not require all nursing home deaths to be reported to the coroner, though a pilot project where all deaths were reported was conducted several years ago. The pilot project consisted of ten counties and in that time at least eight suspicious deaths were found that otherwise would have been swept under the rug. Those deaths were potentially caused by Illinois nursing home neglect or abuse.

The Free Press story highlighted another proposal which would require medical examiners to set up panels to investigate these deaths. The panels would bring in pathologists, coroners, and others to routinely review these cases. The goal would be for no deaths caused by neglect to go unnoticed. That added scrutiny would likely force homes to slowly enact needed safeguards and improve the overall care provided to residents.

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Alzheimer’s Patient Dies in Nursing Home Fall

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Levin & Perconti’s Illinois Medical Malpractice Blog Named Top Tort Blog of 2011!

All of us at Levin & Perconti are happy to announce that one of our blogs—the Illinois Medical Malpractice Blog—was recently named the Top Tort Blog of the Year! Thanks to all of the support (and votes) from our readers, we were named the winners of the LexisNexis contest to find the top legal blog in the country. More details about the contest and other great blogs which were part of the process can be found at the LexisNexis Litigation Resource Community.

As blog readers likely know, the contest was a couple months in the making. At first readers were able to nominate their favorite blogs for inclusion in a list of the top twenty five tort blogs. Then, that list of twenty five was included in an interactive online poll where readers voted for the final winner. Thanks to the amazing support of our blog advocates, we received the most votes in that final poll.

All of our Illinois personal injury lawyers are humbled by the honor and remain committed to sharing important information with community members. We are happy that so many local residents take the time to visit each of our blogs each day. Please continue to stop by all of our Levin & Perconti online news sources to keep updated on a wide range of important, interesting, and useful Illinois personal injury legal issues.

Use Available Tools When Choosing the Best Nursing Home

Last week an article published on the U.S. Department of Health & Human Services website by the Agency for Healthcare Research and Quality explores ways that community members can use the tools to select the best long-term care facility for their loved one. Considering the prevalence of nursing home abuse and neglect, it is becoming increasingly important for families not to make these decisions lightly. There are many different factors to consider when deciding where you senior or disabled loved one will receive the care they need with their quality of life maximized.

One inherent challenge is that most people have never before had to make this decision. In addition, at the moment that a nursing home choice is made, those family members are often under stress. Of course it is much harder to step back and think through all options rationally when feeling that pressure. That is why it is essential for all those in the middle of this process to seek out the help of others and find available resources to aid in the decision.

The HHS article, written by a doctor who specializes in getting patients to engage in their care, suggested that the first place to start was the federal government website known Nursing Home Compare. We have discussed this valuable resource before. It has recently been revamped, and it allows users to identify nursing homes in an area by zip code, city and state, or county. The site then provides a wealth of information about that facility. For example, we know that those in our area have learned whether or not a facility that they were considering was the sights of chronic Illinois nursing home neglect. On the website all facilities are given a start ranking between 1 and 5. Those rankings factor in a range of variables from staffing levels and inspections records, to a variety of other quality of care standards. It is particularly helpful that each variable includes its own ranking. In that way you can see if a facility’s overall value was hurt most by staffing levels, bedsores rates, or other factors.

The Nursing Home Compare website is always improving, and next year it is set to roll out new features that will allow nursing home residents to add their own input. This personalized information will likely become invaluable to those trying to understand exactly what life is like at one of these locations. That resident input will be integrated into the overall ranking system to provide an even better targeting system of judging these facilities.

Beyond that important website, those searching for the best facility should also take many other steps to ensure their loved one is not the victim of nursing home neglect. For one thing, visits to the facility beforehand are vital. While there all advocates recommend that family members ask specific questions of staff members. This allows both a way to get more information and to better understand the individuals who will be providing the actual care to your loved one. If possible visits on two different days and times will provide an overall better perspective on life in the home. Other resources that our Illinois nursing home lawyers recommend include the “nursing home checklist” provided by the Centers for Medicare and Medicaid (CMS) and the CMS paying for nursing home care handbook

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Troubled Nursing Homes Remaining Open

The Detroit Free Press published an extended report on the inadequate care provided to vulnerable seniors in the city’s nursing homes. Tragic instances of nursing home abuse, neglect, and facility mismanagement abound. Yet, despite the widespread condemnation of the conditions at many of these homes, few homes are ever closed down. Instead, residents are left to languish in the facilities with few prospects for the future.

A former nursing director at one of the facilities explained how she knew things at the home were bad during her very first day on the job. She reported that she was actually called in a day early, because the night shift nurses had left early and the day shift nurses were short staffed. Upon walking into the facility she found that the stench of human waste was strong. What she saw shocked her. The nurse reports that residents were sick and malnourished, the staff was so short that it was impossible to accomplish all the necessary tasks, and much of the facility’s equipment was virtually unusable. The nurse saw one 68-year old resident at the home rocking silently on the bed. Weighing only 68 pounds, the woman was struggling to breathe, and her lips and tongue were turning blue. The resident was brought to the hospital and died a few weeks later.

After working at the facility for awhile the nursing head admits that she could no long tolerate being privy to such nursing home abuse and neglect without taking action. She eventually initiated a “whistleblower” lawsuit shining light on the poor conditions at the home and demanding that action be taken. The legal action that ensued ultimately led the large nursing home chain which ran the facility to pay $1.25 million to improve its 36 nursing homes, but it did not technically admit wrongdoing.

All of these actions took place over ten years ago. Considering the court-ordered improvement plan, one would expect that by now the facility in question would have either raised standards or been closed by state officials. Unfortunately, neither is the case. The nursing home remains open, and it remains one of the lowest-performing facilities based on quality care standards. Not surprisingly, many of the facilities owned by the same nursing home chain are ranked as the poorest homes. Our Chicago nursing home neglect lawyers have come to appreciate that those businesses which own various nursing homes often have the same (low) levels of care at each of them.

However, it would be unfair to suggest that it is only homes owned by large chains that are deficient. This particular story explained how nearly three out of every four nursing homes in the state received at least one serious violation in the last three years from federal inspectors. Nursing home neglect occurs at many facilities, and the consequences of each can be similarly severe. However, there are certain homes which are found committing violations again and again. But rarely are they closed. Their only punishment is often had if family members of the victims come forward and file suit.

For example, at the facility where the whistleblower action was centered, serious violations were reported again and again, even after the lawsuit. In one instance a resident with dementia somehow wandered out of the facility wearing only pajamas. He was passed by two staff members in the parking lot who did nothing to stop him. The facility was also cited for having an “imposter nurse” work at the home. The facility in question hired the woman as a nurse even though she wasn’t actually a nurse. She was at the facility for a month before it was discovered.

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Nursing Home Lawsuits Compensate For Poor Conduct, Not Just Poor Outcomes

In most areas of the civil justice system—from medical malpractice and nursing home neglect to premise liability—the law is built to apportion liability and require redress for inappropriate conduct, not necessarily undesirable outcomes. The legal system sometimes gets a bad rap because some believe that lawyers take sad situations (i.e. a serious accident) as poof in and of itself of negligence. That is not the case.

Instead, in virtually all areas of the law (except in rare cases of strict liability), redress is built specifically on conduct (or lack of conduct) and not merely on the fact that someone was harmed. For example, a case would not even make it to a jury, let alone result in a verdict for the plaintiff, if the attorneys involved alleged nursing home abuse only on the fact that a resident suffered a certain injury while in the home. The harm itself is insufficient. In addition to that harm, to beat back defense motions to dismiss the case or receive summary judgment, is the need to show actual negligence on the part of the defendants which contributed to the harm. In other words, plaintiffs cannot recover merely because they were residents at the time they were injured. However, they can and should recover if the inappropriate conduct of their caregivers is what led to that nursing home neglect.

This is a very fundamental aspect of the law in nursing home abuse and all personal injury cases. However, it remains misunderstood by the general public. That is often because the form of the negligence is frequently more subtle than which most are familiar. It is one thing for a nursing home employee to physically strike a resident—that is obviously intentional misconduct. It is another for a facility to be aware of the fact that it did not have enough staff members on duty at a particular time leading to fewer check-ups on the resident, medication delays, or bed-ridden residents not being turned as often.

No one would likely dispute that liability should attach when an employee physically attacks a resident. Yet, some are not sure why there is liability when an employee does not specifically do anything wrong. But that misses the point that the facility as an entity (and those in charge of its overall operation) often should know that certain actions on their part can cause injury to residents. For example, our Illinois nursing home neglect lawyers are very familiar with the fact that there are very systematic ways by which nursing staff levels, for instances, can be computed to indicate how many hours of individual care each resident will receive. Experience also reveals with surprising accuracy the potential for problems to go unnoticed when that nursing care falls below a certain daily level. Therefore, when a resident suffers injury that might have been prevented had a staff member been near the individual at the time, the failure of the facility to have appropriate staff levels is a clear factor in the harm. Therefore, if a civil nursing home lawsuit is filed in that case, the attorneys would argue not just that the resident was hurt at the facility, but that those involved knew (or should have known) that specific action on their part might lead to the harm that actual arose.

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Is Cancer in Nursing Home Residents More Likely to Go Undiagnosed?

A recent blog post at the excellent resource, ParentYourParents.com, suggests that one consequence of general nursing home neglect is that many senior residents have undiagnosed cancer. Of course, as with patients of any age, early cancer detection is vital, because it is a progressive disease. The earlier that treatment is received the better chance that medical professionals have of curing it. Unfortunately, many have argued that cancer screenings in nursing homes have not received nearly as much attention as they need.

The author suggests that failure to consider the effect of not testing nursing home residents is simply another indication of poor general care at some of these homes. She reminds readers that over 2.1 million instances of elder abuse occur each and every year across the country—both inside and outside the nursing home. Cancer may go undetected because, for many seniors, reports of pain or abnormalities often go unnoticed. For example, a recent study examining 150,000 residents discovered that one in five patients that reported pain did not receive any treatment for the pain. This is problematic both for the fact that the senior was forced to wallow in a bad situation but also because failure to treat the pain may mean that more serious problems go undetected. The same study also took at a look at the care received by nursing home patients who it was already known did have cancer. Even there serious problems in caregiving were found. Chemotherapy and radiation were rarely administered to cancer patients in nursing homes.

Our Chicago nursing home abuse lawyers know that experts have put forth a range of explanations for these issues. A recent Bioethics Forum article suggested that part of the problem was that many nursing home caregivers already believe that their residents are on their deathbed—a belief that influences care. This attitude may be part of the reason why one in three nursing home residents die within their first year at a home. Another twenty to forty percent die in the second year.

In addition, financial costs are also involved in these decisions. Cancer screenings do have a cost, and in the current environment, most are looking at ways to cut back on healthcare spending. However, while everyone understand the needs to be cognizant of budgetary realities, it is important not to simply ignore cancer screenings in the very group that likely needs it most. More than 60% of all undiagnosed cancer is in individuals over 65 years old. It is unacceptable to tell this group of community members that there remaining decades must be sacrificed as a cost-cutting measure. At the end of the day, the Illinois injury lawyers at our firm believe that quality care should be available to all local community members. When cancer screenings should be given, they should be given. Those who are retired should not be denied this basic preventative step. Financial concerns may actually be misguided, because at times the costs spent on these seniors trying to treat a very advanced cancer are much higher than would otherwise had been the case if the cancer were caught much earlier.

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Many Worried About Effect on Senior Care Following Nursing Home Job Cuts

Federal policy decisions related to the deficit and budget have ramifications in virtually all sectors of society. It is sometimes easy to forget how widespread the effects would be if certain proposed budget cuts are carried out. For example, in virtually all debt reduction proposals, significant Medicare cuts are involved. Medical care and long-term care spending represent a significant portion of the federal budget, and so it is expected that all serious proposals at trimming the budget and deficit will at least refer to those costs. However, the consequences of those cuts should not be minimized. It is not a stretch to say that instances of Illinois nursing home abuse and neglect may increase as a result of certain cuts.

For example, the Sacramento Bee reported last week that in one state alone there has already been about 2800 nursing home jobs lost as a direct result of Medicare and Medicaid funding tightening. This is before much larger possible cuts take effect. The Alliance for Quality Nursing Home Care explained today that these losses may represent just the beginning of a large-scale national trend. The problem stems from an 11.1 percent reduction in Medicare funding which went into effect at the beginning of October. The reduction was billed as a “correction,” but has resulted in significant cuts which have led some large nursing home chains to respond by slashing nursing home jobs. Of course, the lost jobs are almost exclusively direct care staff, meaning that residents ultimately suffer by having fewer care workers helping them with their daily needs. Time and again a reduction in staff to patient ratios has been found to lead to increased instances of nursing home neglect.

According to estimates, over a ten year period, the 11.1 percent reduction will cost nationwide nursing homes $79 billion. One alternative option that some are proposing is a three-year phase in of the reductions. In this way, the overall rates will still be lowered as desired, but the effect on the industry might be much less sudden and substantial. Some industry insiders say that the phase-in would avoid the mass direct care staff layoffs. Also, they point to the face that similar phase-ins have been allowed for other sectors.

These financial issues always present a unique mix of issues. On one hand, it is important to ensure that the nation’s fiscal health is secure. However, there are many questions about whether or not this large of a cut has to happen without a phase-in. At the end of the day, the care of the residents must be prioritized. Unfortunately, that is often not the case. For example, our Illinois nursing home abuse lawyers know that frequently, when the largest nursing homes chains are faced with monetary issues (such as these Medicare cuts) their immediate response is to lay off care workers. This is the case even though they know that the reduction leads to worsening care and more instances of nursing home neglect. Often there are ways for higher level administrators to take temporary reductions in profits as an alternative. Yet, lowering the profits is often the last thing that any of these chains will do, even if it means harming residents in the process.

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Justice Department Asks For Oversight of Two Dangerous Mental Hospitals

The LA Times reported this week on a U.S. Department of Justice request to extend federal oversight of two mental hospitals after suggesting that the homes have not complied with previously ordered consent decrees. Over five years ago the two facilities were ordered to enact sweeping changes, including improvements in their protocols intended to keep employees and residents safe. The original decree placed the hospital under federal oversight after a mental hospital abuse lawsuit was filed against the facility by a variety of stakeholders.

In this latest legal filing, the federal officials reported a string of problems with the homes leading to the request for continued oversight. The documents listed preventable suicides, medical errors, improper restraint use, uncontrolled violence, and other troubling information. For example, the federal attorneys wrote in the filings that “both those residing and those working [at the facilities] are seriously assaulted on a continuing basis.” It was explained that untold suffering, injury, and death would result from a lapse of the oversight and a failure on the part of the facilities to make previously-demanded changes.

A look at the evidence laid out by federal officials suggests that these facilities are still the sight of rampant mistreatment and dangerous circumstances. Unlike most case of nursing home neglect, problems at mental hospitals often place employees in danger as well as other residents. For example, at one of the facilities involved, a psychiatric technician was strangled to death by a patient. The technician was carrying an alarm that all staff member carry to prevent events just like this. However, the alarms did not work. As a result, the employee was unable to call for help while she was attacked by the disturbed resident.

Preventing suicides remains another key concern. One resident committed suicide while his psychiatrist was on vacation without a substitute being found. In another case, a resident killed himself after having already attempting suicide. Little was done after the first attempt to prevent a reoccurrence. Questions also remain about the improper restraints still used at the facilities. “Face-down” restraints were still in use even though they are prohibited. Residents have previously been seriously injured or killed when improper force was applied in this fashion.

The problems at psychiatric hospitals are similar to those faced at many nursing homes. Both involve the care of particularly vulnerable communities with repeated instances of neglect and mistreatment. The Chicago injury lawyers at our firm, for example, closely followed developed at local facilities for disabled and mentally challenged children, Alden North. Chicagoans of all stripes were shocked to learn of the mistreatment at the facility for young people, with over a dozen deaths reported over a period of several years that were attributed to neglect and mistreatment. It seems that in all of these institutional-like settings, from mental hospitals to nursing homes, there is often a tendency to let care slip without prodding to do otherwise. For example, nursing home abuse settlements often come with terms that require facilities to make certain changes in their procedures to prevent future harm.

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Long-Term Care Advocate Testifies At Senate Hearing

Last week a representative from the American Medical Directors Association (AMDA) testified before a United States Senate committee on the dangers of antipsychotic drug use in nursing homes across the country. AMDA Vice President Jonathan Evans was one of a few individuals asked to speak at the hearing entitled Overprescribed: The Human and Taxpayers’ Costs of Antipsychotics in Nursing Homes. The centerpiece of the hearing was a discussion of a topic that our Chicago nursing home lawyers have long been aware: the prescribing of antipsychotic drugs among residents with dementia. These drugs specifically come with a “black box” warning against the dangers of the drugs when taken by dementia patients. Yet, despite this warning, there has actually been an increase in prescriptions among these residents.

As the AMDA doctor explained, the drugs are usually prescribed specifically to affect the patient’s behavior. However, he noted bluntly, “Behavior is not a disease; behavior is communication.” In other words, these prescriptions are not medically necessary. Instead, they are often given only to make it easier for these individuals to be controlled. These drugs are often referred to as “chemical restraints” and they constitute a dangerous and unnecessary form of nursing home neglect.

Dr. Evans also explained that most physicians are not trained to properly handle dementia related behavior. Medical schools rarely train doctors in best practices for nursing homes or other long-term care settings. Better training is needed, the doctor suggests, because increased awareness among physicians has been shown to decrease dangerous antipsychotic drug prescriptions. He called for increased dementia training and education among a select group who could most benefit. Specifically, that group would include the members of the interdisciplinary team and nursing home surveyors.

Another aspect to this issue which is often forgotten is the demand that patients give informed consent to their care. Failure to receive that consent is a serious breach of ethics and opens the door to a wide range of legal liability, including medical malpractice lawsuits. Lack of informed consent in the long-term care context is a common form of nursing home abuse. This requirement demands that nursing home residents and their families be fully informed of the effects of this medication and the potential side-effects—which includes death for dementia patients. Failure to have this dialogue and exchange of information is inexcusable. Toward that end, Dr. Evans stated that the culture of health care in this context needed to change. That would include developing core competencies for physicians in long-term care settings. In addition, there is a need to empower medical directors to educate physicians on the best ways to connect with long-term caregivers and develop relationships with these patients and their families.

This latest hearing is a continuation of the ongoing federal inquiry into the quality of care provided to vulnerable nursing home residents nationwide. Debate about the care of dementia patients has been particular intense as of late. Many advocates have long been pressuring for rule changes which would require more education and effective treatment of these individuals who far too often are left to languish in long-term care facilities without any real thought to their quality of life.

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Nursing Home Aide Pleads Guilty to Seven Counts of Elder Neglect

According to the News Gazette, a case of seemingly systematic nursing home abuse has led to several criminal charges against the involved care workers. As blog readers are well aware, not only is the mistreatment of the elderly at these facilities often a violation of the civil law, but in certain case of intentional misconduct or nursing home abuse can give rise to criminal charges. These criminal charges are much less common that civil lawsuits. That is because criminal prosecutions are always limited by the number of resources that police departments, prosecutors offices, and other involved parties can devote to punishing this form of wrongdoing. Conversely, civil lawsuits are not filed by any government body, but they instead represent a private citizen exercising his or her rights and ensuring that harm suffered is compensated.

While criminal charges in these cases are not necessarily common, they do occur. When they do, in the vast majority of cases they arise after an individual resident or (more often) their family member comes forward and demands accountability. At the end of the day, our nursing home abuse lawyers know that rooting out mistreatment at these facilities almost always requires the close care and observation of fellow friends and family members. For example, in this latest case a man began having serious concerns about the care that his mother was receiving. He did not feel like he was receiving straight answers from her caregivers and facility administrators, and so he decided to take matters into his own hands. To do so, he installed a camera in his mother’s room at the facility. The camera’s presence should not have come as any surprise to his mother’s caregivers as he also included a signed that warmed them of the cameras presence.

However, even though the employees should have known that their actions while in the room were being recorded, the camera still caught instances of clear mistreatment. For example, the man found that the aides mocked his mother on many occasions. One of the aides was also caught virtually throwing her roughly into a wheelchair and pushing a hand into her face. Another employee seemingly sprayed something into the 78-year old resident’s face, though it remains unclear what the substance was. One of those aides was since charged with criminal abuse of the elderly. He recently pled guilty to seven counts and awaits criminal sentencing at the beginning of next year.

As our Chicago nursing home neglect lawyers have seen time and again, this mistreatment continued long after family member complained to nursing home officials. The adult son in this case had filed multiple notices with the facilities explaining that he believed his mother was being mistreated. He first became concerned when he found her sitting in soiled clothes in a wheelchair. In addition, he began seeing suspicious marks appear on her face. That is when he installed a camera. At first, employees covered the camera with a towel when they entered the woman’s room. However, that led the man to move the camera to a hidden location. However, he left the sign alerting employees that the camera was recording. Yet, in only two days he had captured the footage of aides mistreating his mother repeatedly.

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Medication Error in Nursing Home Led to Resident’s Death

The Chicago nursing home neglect lawyers at our firm have learned from experience that in more cases than not, seniors are hurt because of preventable oversights. This is much different than intentional abuse. Of course, the intentional physical, sexual, emotional, and financial exploitation of seniors can and does occur much more often than acceptable. However, cases of simple oversight, accidents, and short-sightedness are even more common in these facilities. Unfortunately, the consequences of these lapses in care can be just as deadly as intentional harm.

For example, the Post Examiner reported yesterday on an incidence of nursing home neglect involving medication given (and not given) to a senior resident. According to the story, an 84-year old nursing home resident was killed as an apparent result of the staff members’ failure at the home where he lived to ensure his proper medication usage. The man was in need of a crucial anxiety drug to survive. However, for reasons yet unclear, the man did not receive that drug for a total of ten days. Then, compounding the error, he received ten times the normal dosage in one setting. He died not long after. While the technical cause of death of the man was ruled chronic lung disease, an investigator involved in the manner reported that it is more than possible that the overdose of lorazepam was involved in the man’s passing. Obviously the blatant mishandling of medication in this manner is an example of nursing home neglect. Ensuring that receiving receive timely medication in a proper manner is a very basic task of these caregivers.

Amazingly, the man’s family was never made aware of these issues. It was only last week, five months after the passing that journalists talking with the family told them of the situation. An investigation by the health department in to this specific case found that the man’s death was preceded by at least 26 omitted doses of lorazepam. Apparently the mistakes were a combination of errors made by a variety of employees over several days. On top of that, there were medication accountability problems at these facilities, with doses of drugs gone from the staff’s supply without any apparent reason or record of where they might have gone.

Beyond the overdose concerns, there are also questions about why the family was not notified of the problem. As the victim’s nephew, who has a power of attorney over his affairs, explained, “When you have no idea about that, you take their word for it.” Had the family known, they could have ordered an autopsy. State law requires facilities to inform the friends and family members of these residents when a change in their condition was caused by a medication error. The nursing home staff in this case claims that they abided by the law and told the family of the mistake.

The case was part of an on-going investigation into chronic substandard care at many of these homes, including repeated medication errors. Our Illinois nursing home attorneys have sadly seen many facilities where mistreatment has become the daily practice. It is difficult for any resident of these chronically problematic homes to receive the care they need day in and day out. All friends and family members should keep a close eye on their loved one’s treatment at these facilities and be prepared to step in and take action if necessary.

See Our Related Blog Posts:

Fox River Pavilion Nursing Home Death is Suspicious

Chicago Nursing Home Neglect Lawyers Reach settlement for Bedrail Entrapment Death

Levin & Perconti Blogs Need Your Vote for TOP Tort Blog Honors

The results of Lexis Nexis’s Top 25 Tort Blogs of 2011 were recently announced, and thanks to your nominations, two of our blogs made the cut! Our Illinois Injury Blog and Illinois Medical Malpractice Blog were both named as one of the top 25 tort blogs in the nation. We are very proud of the honor. We strongly believe that consistent, informative updating of our blogs is an important way that we stay connected to the community and in touch with news in various legal arenas.

But now we need you support one more time.

The contest is continuing for the next five days only to narrow down the top twenty five down to one--THE top tort blog of the year. Unlike the nomination round, voting is not done via comments. This time there is an actual online ballot box where you can select one site for the honor. You have to “log in” to vote, BUT you can do so using your Facebook, Google, LinkedIn, or Twitter account. That means that you do not even need to fill out any new registration information.

We would greatly appreciate your support!

Remember voting ends at Midnight Eastern Time on Friday, December 9th. So please take a second to click this link, and Vote for the Illinois Injury Blog or Illinois Medical Malpractice Blog.

Thanks for your continued readership and support of our blogs.

Consumer Checklist: Were You Affected By DePuy Hip Recall?

Our Chicago DePuy hip recall lawyers remain concerned that some local residents may not be aware that they have been affected by the dangerous hip design. As we’ve repeatedly explained how the DePuy hip recall was issued in late July 2010 following mounting evidence which suggested that the hips failed at a much higher rate than acceptable. The consequences for the victims are wide-ranging. On one hand, many require revision surgery to correct the problematic replacement. These surgeries are risky and painful, but they are absolutely essential to ensuring the well-being of those who received one of these DePuy hips. Beyond the need for a replacement, some victims also had small metallic particles released inside their bloodstream. The metal-on-metal design of the product may cause the particles to be expelled inside the body, with a myriad of problems resulting.

It goes without saying that all those who received these devices need to ensure that they visit with a medical professional to keep themselves in good health and devoid of problems. Yet, even though many more individuals, including seniors, are becoming aware of the recall, many still have questions about whether or not it applies to their own hip. To help, please consider each of the factors listed below to determine if you may be affected by the DePuy hip recall. Each represents a sign that you have been involved in the recall and could have a right to file a legal claim to recover for your injuries.

• You received a hip implant after July 2003. These devices were not made or used before this time.

•The hip that you received as wan ASR XL Acetabular System or a DePuy ASR Hip Resurfacing Platform. You may not be aware of the specific hip that you received, but your doctor will be able to explain which product was used in your case.

• You received a recall notice from DePuy or Johnson & Johnson

• You needed a revision surgery within five years after your original surgery because of problems with the first implant

• You are experiencing pain in your hip, groin, leg, or lower back.

• Your hip does not feel or sound as you think it should. This often means that you hear a clicking or crunching when you stand up or walk. It may also involve the hip feeling as if it is loose or dislocated when in motion.

• You have general mobility problems and have difficulty with all physical activities.

Our Chicago hip recall attorneys urge all those who have had a hip replacement to visit with a medical professional to ensure that they receive the medical treatment necessary if a dangerous product was used. Many seniors and nursing home residents may have had these surgeries, and so it may be necessary for family members to take the initiative and ensure that their elder loved one checks to see if their hip was involved in the recall. If you or a family member did receive a defective hip, it is important to protect your legal rights and visit with a legal professional working on these cases. The company responsible for the error is required to compensate victims for the harm that was caused by the dangerous product.

See Our Related Blog Posts:

Number of Injuries From DePuy Hip Replacements Continues to Grow

Illinois Hip Implant Recall Shows Problems with Improper Product Testing

Federal Inspectors Claim More Needed to Curb Improper Drug Use in Nursing Homes

As awareness continues to grow about the rampant use of antipsychotic medication in nursing homes, more and more advocates are stepping up and demanding that federal officials take action to protect our seniors. This comes as welcome news to our Chicago nursing home neglect lawyers who have long-known about the problems of chemical restraints. Hopefully with each added voice, officials are pushed closer to doing a wide range of things in their power to limit the misuse, protect seniors, and ultimately limit instances of harmful nursing home abuse and mistreatment.

An Associated Press story this week explained how government investigators recently called on Medicare officials to do more to curb the unnecessary use of powerful antipsychotic drugs. As we have repeatedly reported, this practice is particularly troubling considering that dementia patients receive antipsychotic drugs at very high rates, even though research has found that use of the drugs among these patients comes with an increased risk of death. Doctors claim that the drugs pacify aggressive condition in these patients, but the drugs were actually designed only to help control hallucinations, delusions, and other conditions caused by schizophrenia and bipolar disorder.

A recent report found that a startling 83% of nursing home antipsychotic drug misuse claims submitted to Medicare were for patients with dementia. In total 14% of every single nursing home resident in all homes throughout the country receive some form of antipsychotic medication. Clearly, doctors are handing out these drugs with startling frequency. It is therefore not surprising that many of the largest drug companies have recently paid billions of dollars in settlements after suits were filed alleging that they illegally marketed these drugs in an effort to get doctors to prescribe the medications for off-label purposes.

Recently a government inspector with the U.S. Department of Health and Human Services recently told a Senate Committee on Aging that officials with Medicare can and should do more to punish the misuse of the drugs in the nursing home context. Medicare actually pays for most of this misuse, as patients who receive the chemical restraints disproportionately use Medicare to provide for their long-term care. The inspector suggested that facilities that inappropriately prescribe these drugs be penalized. During his testimony, the Health and Human Services investigator stated that it would be appropriate for these facilities to be forced to pay for the medication themselves. Repeated abuse of these drugs was also suggested as a reason for the worst facilities to be denied the ability to participate in the Medicaid program altogether.

Unfortunately, our Chicago nursing home abuse lawyers know that spurring actual changes at many facilities is often require hitting the facility where it matters to them: their pocketbooks. Not only it is egregious for these homes to put the lives and quality of life of their residents on the line, but it is appalling that the taxpayers are the ones that usually foot the bill for these dangerous practices. At the very least it is beneficial for Medicare to take the steps within its power, as recommended the inspector, to financially punish facilities that inappropriately use these medications.

See Our Related Blog Posts:

Medication Errors Pose Particularly Serious Risk to Seniors

Steve Levin Interviewed For Story on Antipsychotic Drug Use in Nursing Homes

Levin and Perconti Named Personal Injury Law Firm of the Year – USA by Lawyer Monthly

Our team of Chicago injury attorneys are proud to announce that we were recently named the Personal Injury Law Firm of the year in the United State by Lawyer Monthly—an international legal publication. The honor was part of the Lawyer Monthly Legal Awards 2011 meant to recognize firms and attorneys that are providing quality legal services at the top of the industry.

The award winners were carefully selected after on online nomination process. Nominees were then examined by the Lawyers Monthly awards research team during a detailed six month process. The research team collected votes and evaluated those votes against a strict set of measurable criteria. The finalists and winners are intended to represent professional achievement and excellence in the country and practice area. A full set of international winners can be found here.

Our Chicago injury lawyers are humbled by the award, and we remain incredibly proud to be trusted by so many community members when they need legal help.

Senior Patients May Benefits When Prescriptions Given At Office

Each Chicago nursing home lawyer at our firm appreciates that the vast majority of seniors, when given a choice, would not chose to live in a nursing home to begin with. Most seniors would much prefer to “age in place” and receive the care that they need while remaining in former living environments—oftentimes the homes in which they’ve spent their entire adult lives. Unfortunately, there are a variety of reasons why that is not possible for many area elderly community members. At times the close monitoring needed is simply impossible without care in another location. In other instances, the financial resources do not exist for the senior to receive needed care unless they enter a long-term care facility.

However, technology changes and a push for government programs to help more seniors stay at home are making it slowly more possible for many elderly individuals to avoid nursing homes. This is good news for those of us who work in Illinois nursing home neglect situations and know of the often systematic mistreatment of many of these vulnerable individuals. Yet, the push toward home care comes with its own unique concerns that must be addressed. Steps must be put into place to ensure that these home care patients are not exposed to unnecessary risks that may have adverse effects on their well being.

Medication is one example. According to a new story in Health Day, nearly 40 percent of seniors who take a prescription drug from a home health agency take at least one medication that is either unsafe or ineffective. This figure is particularly high on its face, but the problem is made even more apparent when it is compared with prescription for seniors given at a medical office. Home health prescriptions problem rates are three times higher than those given in the office. This new information was obtained by medical researchers in a newly released study.

The new data also reveals that the average individual over 65 years old takes roughly eleven medications. This large amount is part of the reason that there are more errors than necessary, opening the door to dangerous or ineffective use. For those patients taking even more medication than the average—fifteen or more each day—the chance for error was even higher. These individuals have a five to six times greater likelihood of using an ineffective or unsafe drug. Roughly twenty one percent of seniors fell into this group of fifteen or more prescriptions daily. This information was obtained from an analysis of more than 3,100 home health care patients in the National Home and Hospice Care Survey.

The Chicago injury lawyers at our firm understand that financial incentives mar the care of seniors in many setting. Nursing home neglect is often a product of unwise cost-cutting measures that sacrifice resident care in order to maximize profits. Similarly, even when home care is provided there are opportunities for residents to be used as a way to make money without a supreme focus on ensuring that the care they receive is absolutely necessary and safe.

See Our Related Blog Posts:

Levin & Perconti Filed Nursing Home Neglect Lawsuit Against Elm Brook Health Care & Rehab Center

Illinois Nursing Home Neglect Lawsuit Filed Against Virgil Calvert Nursing Home

Seniors Affected By DePuy Hip Implant Recall May Still be Unaware

It has now been roughly a year and a half since the DePuy Acetabular Hip Replacement System (ASR Hip) was recalled. Our Chicago nursing home lawyers have frequently discussed the recall, which had affected many local residents—particularly seniors. However, there likely remains many community members who had hip replacement surgery with these one of these devices but remain unaware of the recall or whether or not their hip is defective. It is important for all those who may have been affected—and their family members—to understand the DePuy hip recall and its potential affect on their life.

The system in question includes “ball and cup” components to mimic the socket and ball of the femur in the human hip. Most hip replacements include both metal and plastic parts. However, the ASR Hip that was recalled was unique in that it puts a metal “ball” component in direct contact with a metal “cup.” This metal-on-metal contact may be at the heart of the problem with the medical device. These new hips achieved U.S. Food and Drug Administration approval to market the devices for use in 2005. They used a shortened approval system (501(k) process) to obtain FDA approval without having to undergo clinical trials.

It was not long after it entered use that reports came out regarding the failure of some of the hips; similar reports continued to build up over the coming months. Correction of the problem usually required the patient to undergo a painful and risky second surgery to replace the replacement. It wasn’t long before there were hundreds of reported case of early failure of the devices—usually caused by problems with the “cup” component of the device and metal-on-metal shavings being released inside the body. Reports appeared in newspapers about the problem as early as 2007, and the DePuy device manufacturers knew well before that of the reported issues with the devices. Yet, even after this time, patients were still given the device. Doctors investigating the evidence have explained that the company had significant data early on which indicated that these devices were failing at a far higher rate than other devices.

It wasn’t long before it became known that the DePuy hip defect was likely design-related. That it so say that it was not a problem with the actual manufacturing of the device but the whole idea of the device itself. Even the surgeon that designed the hip admitted in 2008 that the company knew that there were problems with the hip early on. Yet, despite this knowledge the company continued to sell the device—making more than $5.4 billion in 2009 alone on the product. It wasn’t until the summer of 2010 that the device was officially recalled by the FDA. Upon notice of the recall, the company admitted that a shocking 13% of all those who received the device may need revision surgery. This amounts to 10-15,000 patients.

Our Chicago DePuy hip lawyers encourage all local residents who have gotten hip replacements to ensure that this recall did not affect them. It is always better to error on the safe side and visit with a medical professional to confirm that additional steps are not needed to make sure that one is not in danger of having problems with the replacement. If you suspect that you or a loved one has been harmed by their replacement, please visit our office and share your story to learn about your legal rights.

See Our Related Blog Posts:

Number of Injuries From DePuy Hip Replacements Continues to Grow

Illinois Hip Implant Recall Shows Problems with Improper Product Testing