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The daughters of a now deceased 95 year old woman filed a lawsuit against the state of Iowa and the nursing home of which she was a resident during a sexual assault committed by a fellow resident, a violent sex offender. A lower state court ruled that the state was not liable and the Iowa Supreme Court upheld that decision earlier this month. Despite the court’s ruling, the daughters of the victim are still pursuing the lawsuit with the nursing home now named as the sole defendant.

What is the State’s Duty to Society After Inmates are Released?

William Cubbage was convicted of four violent sex crimes against children between 1989 and 2000. He served time for his offenses and upon his release in 2002 was sent to a state-run institution that focused on rehabilitation of sex offenders. After 8 years he was released from state custody and admitted to Pomeroy Care Center, a private nursing home in Iowa. In less than a year at the center, a child visiting a family member saw Cubbage assaulting the woman. The victim’s daughters sued the nursing home and named the state of Iowa as a defendant, arguing that the state should not have allowed Mr. Cubbage, a man with an extremely violent past, to be admitted into a nursing home amongst vulnerable elderly residents. Attorneys for the state argued that once Cubbage’s prison sentence and court ordered rehabilitation was completed, they had no responsibility for him.

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The American Health Care Act (AHCA), the Trump Administration’s answer to repealing & replacing Obamacare, is set to be voted on again by the house. Voting could begin as early as tomorrow, April 28th.

Portions of the Act have been amended, but serious cuts to Medicaid remain a part of the bill. According to the Kaiser Family Foundation, more than 74 million Americans are currently on Medicaid, millions of whom are low-income elderly adults requiring nursing home or home health services. Medicaid is a lifeline for low income Americans requiring this type of long term care, as Medicare does not currently cover these services.

The AHCA would implement a federal cap that limits the amount of dollars given to states for Medicaid. The cap would be per capita, meaning the ultimate dollar amount would be the same for each person, giving no consideration to the varying needs of each Medicaid recipient. If states are expected to kick in extra money to cover shortfalls in federal funding, the impact could be disastrous. States would either have to limit what Medicaid costs they can help cover or take money from other areas of their budget, potentially causing a cascade of other problems and budget shortfalls.

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Yet another sad story of a choking death by a nursing home resident has recently been made public. Kathryn Miller, an 88 year old woman who was temporarily staying at Alden Court Nursing Care & Rehabilitation Center in Fairhaven, Mass. while recovering from a successful hip surgery, choked on a clam, which triggered a seizure and lead to her death by asphyxiation.

Ms. Miller’s only child, Steven Miller, is suing the nursing home, alleging that they are at fault for failing to adhere to her dietary plan (which did not include clams), failing to monitor her and respond quickly while she was choking and for later covering up the identities of the 4 RNs that were working at the time of her death. Her son believes that it is one of the nurses that gave his mother an entire clam, which caused her to choke to death. In the lawsuit, Mr. Miller also notes that the cause of death listed on her death certificate is different than the cause told to him by the nursing home. Kathryn Miller’s cause of death is officially listed as ‘asphyxiation,’ while Alden Court argues that the cause of death was a seizure.

Differing Stories

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After surviving a stroke, Bill Owens completed inpatient rehabilitation and was released with instructions to begin physical therapy at his home. After determining that in-home therapy would not be effective enough for Mr. Owens, he was referred to Carl Erskine Rehabilitation Center in Anderson, Indiana. The rehab facility is owned and operated by St. Vincent Regional Hospital.

Mr. Owens, a documented fall risk, relied on a walker and notified his physical therapist that he had recently fallen twice. The therapist noted that Mr. Owens seemed weaker and shakier as a result of his falls. The next day, Mr. Owens was asked to walk unassisted from the waiting room to the therapy room at rehab. While attempting to walk, Mr. Owens fell and hit his head, striking the ground with such force that he suffered a subdural hematoma, a form of traumatic brain injury that is life threatening if not immediately and appropriately treated.

A Life Forever Changed

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The daughter of a Greeneville, TN man has settled a lawsuit against her father’s nursing home after he was given several powerful psychotropic medications that were not clinically warranted for a patient with Alzheimer’s and dementia, both from which he was suffering at the time of his death. Mr. Bobby Glenn Tweed died at age 79 due to complications from the unneeded drugs given to him by staff at Life Care Center of Greeneville. All 3 of the medications, Depakote, Seroquel, and Geodon, are contraindicated for use in treating elderly patients with dementia.  In fact, the Food & Drug Administration requires a ‘black box warning’ on both Seroquel and Geodon notifying prescribers that the medications are harmful to patients suffering from dementia and increase their risk of death.

While the terms of the settlement are confidential, the attorneys for the family reminded the press that any time psychotropic meds are used, prior consent must be given. In this case, Mr. Tweed’s daughter should have been notified that the facility needed to use such meds and allowed her to approve or deny their use on her father. According to the suit, these drugs were given over an “extended period of time” and “such medications were being given not because Mr. Tweed needed the medication to treat his illness or to improve his quality of life but to make him a more docile, compliant and passive patient.”

Unauthorized Use of Antipsychotics Due to Multiple Factors

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With a newly named adminstrator at the head of Centers for Medicare & Medicaid Services (CMS), LeadingAge, a group supposedly dedicated to the health and welfare of those in nursing homes, has taken advantage of a fresh set of ears.  Recently, senior leaders of the group took the opportunity to meet with Seema Verma, the newly minted head of CMS, to share their beliefs that the surging number of Immediate Jeopardy violations has caused a strain on the way they do business.

Immediate Jeopardy Violations are CMS’ Most Serious Offenses

According to CMS.gov, Immediate Jeopardy refers to “A situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” LeadingAge, who is funded by many corporations, including those with financial interest in nursing homes and services provided to the elderly, is arguing that the standards that are required to be met are hindering their ability to do business as usual. Essentially, the group has asked for CMS to either lower their standards or to make the steps required to improve Immediate Jeopardy situations less daunting. It seems unbelievable that the group is upset about the impact the violations have caused and not the reasons for why the violations were issued in the first place. Why is it that the facilities are unable to meet standards that simply require not putting residents at risk of serious injury or death? If adequate staffing numbers are maintained, if proper training is given and if residents are truly a priority, why are these nursing homes facing increasing Immediate Jeopardy violations?

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A 52 year old woman has died after a nursing assistant did nothing to resuscitate her, even though she was not a DNR patient. A DNR refers to a ‘Do Not Resuscitate’ order, a legal document that indicates a patient does not wish to be resuscitated in the event of a life threatening emergency. The form must be present in a patient’s file in order for that person to be considered ‘DNR’ and the lack of such a document indicates the patient would like all measures to be taken to keep them alive.

Mrs. Kimberly Cencula was a short term resident at Warren Barr North Shore in Highland Park, Illinois, there to receive physical therapy after a bout of pneumonia. Instead, she contracted Elizabethkingia, a bacterial infection. When Mrs. Cencula coded, a nursing assistant misread her patient file, believing that a DNR was included among other documents. Believing Mrs. Cencula was DNR, the nursing assistant did not notify other staff or call a code (which would alert a designated medical team that resuscitation measures were urgently needed). Instead, the nursing assistant did nothing for 30 minutes. When a staff member finally realized the mistake, the facility called 911, but Mrs. Cencula had already passed.

The Illinois Department of Public Health has already investigated Mrs. Cencula’s death and cited and fined Warren Barr North Shore of Highland Park.

 

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A law firm in Eureka, California, is representing the families of two men who died from complications from pressure ulcers within 8 months of each other. The men were unknown to each other, but both received negligent care at facilities owned by the same company and run by the same nursing home administrator.

The lawsuits allege that understaffing was an intentional business decision and that the lack of available staff plus negligence on the part of nursing and medical staff caused both men’s deaths. Eureka Rehabilitation & Wellness Center and Seaview Rehabilitation & Wellness Center are both owned by Brius Healthcare and day-to-day operations of both facilities are overseen by Rockport Healthcare Services.

Avoidable Deaths

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Public Policy Polling (PPP) recently released data from phone polls conducted in late March on the topic of H.R. 1215, a House bill that will be voted on in the next several weeks. H.R. 1215 seeks to limit non-economic damages to $250,000 in medical malpractice, nursing home abuse, prescription and OTC drug and medical device lawsuits. PPP asked the same set of questions to between 500-700 registered voters in 7 red (Republican) and purple states (those that have voted both Republican & Democratic in the past several elections). Polling only red & purple states was intentional, as Republicans have traditionally leaned towards tort reform, the act of limiting medical malpractice and nursing home abuse lawsuits in favor of protecting big corporations. PPP found that in the polled states of Florida, Georgia, Pennsylvania, Texas, Utah, Alabama and Arizona, support for H.R. 1215 was virtually non-existent, with over 60% of polled citizens in every state disagreeing with the bill.

Even more impressive was the percentage of voters in each state that believed nursing homes should be held accountable if acts of negligence caused the injury or death of a loved one. The amount of support for nursing home abuse and negligence lawsuits was 77% at its lowest (Florida), and 86% at its highest (Georgia).

Finally, each state’s opposition to H.R. 1215 grew stronger as the person conducting the phone interview gave more information on the bill to voters.

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In a March report by 7 News in Boston, an investigative team found at least 12 serious sex offenders living alongside elderly residents in Massachusetts nursing homes. The team cross referenced the addresses of nursing homes in the state with the addresses of registered sex offenders and found two Level 2 Offenders and ten Level 3 Offenders. Level 3 offenders are considered the worst kind in the state of Massachusetts.

In 2005, a registered child sex offender, John Enos, was living in a nursing home in Massachusetts, assumed to be harmless because his crimes were all committed in the 1980s against children. Enos raped his 90 year old roommate, a World War II veteran who never knew that the man living beside him was a sex offender. Although his roommate was unaware, nursing home administrators did know of Enos’ past offenses. 2 years after the crime, Massachusetts attempted to pass a law that denied nursing home residency to anyone convicted of being a Level 3 offender. The Supreme Court in that state overturned the law, saying it was unconstitutional. Massachusetts does not require background checks for residents of nursing homes and they are not required to post or make known the criminal past of any of its residents if such information is made available to them.

Illinois Nursing Home Legislation