Articles Posted in Residents and Family Members

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We frequently rail against forced arbitration clauses used in nursing home admission contracts which limit the rights of residents and their family to seek recourse following neglect and mistreatment. All Illinois families are urged to avoid these “agreements” at all costs.

But what is truly unfair about arbitration agreements? It is helpful to run down a list of a few of the aspects to the process that slant against the consumer.

Juries & Evidence

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For decades the legal team at Levin & Perconti has helped families in Chicago and throughout Illinois whose loved ones were hurt while staying at a nursing home. We frequently take cases to trial, but, on more cases than not, we help facilitate a reasonable settlement between the parties that avoids the time, expense, and stress of a trial.

That is what happened in a recent matter where we reached a settlement for a family in the amount of $900,000 against a senior housing facility in the suburban Chicago area. While no two cases are identical, this matter involves a fact pattern that is far too common throughout the area. The senior resident’s injury stemmed from a fall caused by the facility’s failing to provide proper supervision and assistance.

Illinois Nursing Home Fall Case

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The federal Nursing Home Reform Act covers many of the rights that nursing home residents are guaranteed. These rights are codified in the Code of Federal Regulations Title 42- Public Health Law, Part 483.

These rights include:

The right to choose a doctor The right to receive advance information about treatment The right to be free from all kinds of nursing home abuse The right to obtain clinical records upon request The right to have notice before a room or roommate change happens The right of residents to manage their personal finances.

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A news release issued by the National Community Pharmacy Association notes that a new law has been proposed which would aid Medicare beneficiaries to get diabetic testing supplies that are residents of assisted living facilities and who are homebound. The Diabetic Testing Supply Access Act (H.R. 2845), allows community pharmacies to provide same-day delivery services of diabetes testing supplies to residents of assisted living facilities or those who receive long-term care.

The new law was put forward in response to a ban on diabetic testing supply deliveries by community pharmacies which went into effect on July 1, 2013. This ban was created when the Centers for Medicare and Medicaid Services (CMS) implemented a national mail order program which prevented senior citizens who live at assisted living facilities from getting diabetic testing supplies from community pharmacies. CMS instituted the new policy in order to prevent large drug suppliers from getting around the mail order process for shipping the supplies in order to receive high reimbursements. The ban incorporated uniform payment rates for both retail and mail-order pharmacies.

Widespread criticism of the ban centered on concern that elderly people with diabetes living in assisted living facilities would no longer be able to get the benefits of face-to-face counseling and adherence services that are offered by community pharmacies that deliver diabetic testing supplies. There were also concerns expressed by many people in the healthcare industry that the ban would leave diabetic residents in assisted living facilities without the means for self-monitoring of glucose. Many small pharmacies expressed concern that because of the ban, many diabetic patients would be forced to switch to lower-quality products in order to monitor their diabetes. The ban put the health of many diabetic residents of assisted living facilities in jeopardy because they rely on small pharmacies to provide face-to-face consultation to make sure that are using their blood glucose monitoring devices correctly and that the results that the devices give are being interpreted correctly.

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Late last month a jury was asked to decide a nursing home neglect case related to a resident who died after falling well over a dozen times. As an apparent message of anger to the company which provided such substandard care, the jury returned a utterly astonishing verdict – $1.2 Billion.

A Christian Post story has the details of the case.

The suit was pursued by a man on behalf of his mother. The senior woman stayed at the defendant-nursing home for a period of about three years, from 2004 until her death in 2007. The defendant facility, owned by a large nursing home conglomerate, Trans Healthcare Inc., apparently took little stock in ensuring that the best interests of the residents were actually respected.

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Allsup recently shared the results of a workplace injury study that it conducted this month. Analyzing data from the U.S. Bureau of Labor Statistics, the firm compiled information on the scope of serious workplace injuries, the type of work that is most dangerous, and tracked how those details varied from state to state.

But what does this have to do with nursing homes?

It turns out that nursing homes are actually some of the most dangerous workspaces in the country.

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Bed rails have been a hot topic among elder care advocates in recent years. Yet for all the discussion and mounting evidence about the dangers of these pieces of equipment, there has yet to be any far-reaching federal actions targeted at this safety risk.

That may change soon.

That is because the U.S. Consumer Product Safety Commission (CPSC) is exploring the issue and may created updated rules. Different options are on the table, from editing safety warning labels and mandating only certain designs be used to banning the products in some locations all together. The CPSC recently had a public hearing on the matter, where all of the “priorities” for the next two fiscal years were discussed. Bed rails were on the agenda.

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A lawsuit was recently settled in a nursing home neglect case again HCR Manor Care. As mentioned in a new WV Records story, the underlying suit was filed in early February 2012 by the administrator of the estate of a former resident at a HCR Manor Care facility. The suit claimed that the four-year resident of the facility suffered neglect which resulted in serious injuries, pain, suffering, and ultimately, her death. The 85-year old allegedly had pressure sores develop, infections, and various other physical and mental problems resulting from lackluster care. Allegations were also made about a nursing home fall, with premises liability claims included in the lawsuit. The suit was eventually settled by the family for a confidential amount.

$90 Million Case Still Going

One of the most high-profile nursing home neglect cases in recent memory also involved the nursing home chain HCR Manor Care. What made the case so unique and headline-grabbing was the size of the verdict against the company after a jury heard evidence about systematic problems in care against the chain–$90 million.

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Nursing home culture is critically important to resident care. News stories and blog posts discussing specific instances of elder neglect always follow a predictable pattern: a resident was hurt, a specific caregiver is cited for problematic actions which caused the injury, and some discipline or punishment was doled out to that caregiver. The downside to this repeated narrative is that it may create the impression that all instances of mistreatment is nursing homes are caused by specific workers who make mistakes.

That masks larger problems about general lack of attention to resident safety by entire nursing home teams. The culture at a facility among employees sets the stage or future care. If cut corners or focus on profit maximization becomes the norm, then it is just a matter of time before a senior resident is harmed as a result. When the harm occurs, one specific employee may have made a mistake, but the problem is far larger than a single errant person.

This is why the same low quality nursing homes often have multiple neglect lawsuits and allegations of mistreatment—it is a cultural problem. In fact, in an “exception that proves the rule’ situation, there are times when mass mistreatment is uncovered implicating many different employees at a single facility.

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Hidden video cameras are an effective tool in exposing instances of nursing home abuse or neglect and in monitoring the treatment of loved ones in these facilities. There have been many instances where recording devices have helped family members discover that the staff was providing negligent care or committing elder abuse. One recent case involved a nursing home employee hitting and taunting a resident who lay in bed. When such mistreatment occurs, video recordings provide powerful evidence of poor treatment that can lead to staff members’ being fired and can be used in a nursing home lawsuit or criminal prosecution.

However, the use of hidden cameras or other recording devices in a nursing home raises privacy concerns. Is it legal for a nursing home resident or family member to use these surveillance techniques? The short answer is yes, it is legal to use a hidden camera to catch neglectful or abusive nursing home employees. Still, it is important not to violate privacy laws while using these recording devices to prevent or expose elder abuse.

There are legal limits on how hidden cameras can be used to monitor the behavior of staff members in nursing homes. In Illinois, it is illegal to listen to or record a conversation unless everyone in that conversation has consented to the recording. Because of this law, it is important to make sure that your camera records video but does not record sound. You should also make sure that either your loved one or his or her legal guardian has consented to the use of a recording device. Otherwise, your Illinois nursing home attorney may not be able to use that video recording in your lawsuit as proof of abuse or neglect. You could also be at risk for criminal penalties for violating Illinois law.