Articles Posted in Nursing Home Negligence

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bedIn the current system, Medicare pays nursing homes a daily rate for a resident’s stay based on how much therapy they receive. Residents who receive “ultrahigh” therapy, at least 720 minutes per week, generate the biggest payouts for nursing homes. Medicare initiated this payment system in 1998, and nursing homes have caught on to how to bilk the system, billing for increasing therapy levels even for residents in extremely poor health.

Our team of nursing home lawyers examines how this trend in ultrahigh therapy is contributing to the negligence, abuse, and mistreatment of residents.

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Most nursing home residents will suffer a fall at some point during their stay at the facility – in fact, the CDC estimates that the average resident falls more than twice per year. Many of these falls will go unreported even though residents may suffer injuries that result in disability or reduced quality of life. The nursing home negligence lawyers at Pintas & Mullins report on new programs to help prevent falls, and how family members can help a resident at risk of falls.

Although they are common, falls in nursing homes are largely preventable and should rarely or never occur in a well-run, fully-staffed facility. Recently, the Joint Commission Center for Transforming Healthcare worked alongside seven organizations to create solutions to prevent falls among adult patients.

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Pills and a medication bottleWe have written extensively on the dangers of new blood thinning drugs like Xarelto and Pradaxa. Lesser known are the dangers of an older and much more popular type of blood thinner in nursing homes. Our team of nursing home negligence lawyers highlights the importance of medication safety among nursing home residents.

Coumadin (or the generic, warfarin) has been the most-used blood thinning drug since the 1950s. It has saved countless lives, but it must be carefully and consistently monitored with blood tests and diet changes. If it is not properly controlled, the drug can cause fatal bleeding or blood clots.

Blood thinners help the body control how fast blood clots, preventing pre-existing clots from getting larger or breaking off and traveling to the lungs, brain or heart. Some patients take warfarin for abnormal heart rhythms, or to prevent strokes, pulmonary embolism and deep vein thrombosis. The drug requires delicate medical supervision, however, and far too many understaffed and under-resourced nursing homes are unable to properly monitor residents on this medication.

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elder handsOur nursing home lawyers are excited to announce that the Centers for Medicare and Medicaid Services (CMS) recently proposed a new set of rules for nursing home oversight. This is the first comprehensive update of nursing home regulations since 1991.

The proposed rules were released on Monday, July 13, 2015 and announced by President Obama at the White House Conference on Aging. Totaling more than 400 pages, CMS’ new rules aim to tackle the issues plaguing the nursing home industry head-on. Among its aims, CMS hopes to reduce unnecessary hospital admissions and infections, introduce new safety measures, increase quality of care, and redefine terms such as “abuse,” “exploitation,” “misappropriation of resident property,” and “sexual abuse.”

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elderly man in wheelchairWhen choosing a nursing home for yourself or a loved one, many factors must be taken into consideration. Without a doubt you want to choose the best-quality facility with skilled and experienced staff. Our team of nursing home negligence lawyers examines the differences between for-profit and non-profit nursing homes and how operators affect resident care.

The type of ownership of a nursing home affects the quality of care much more than a hospital. The majority of nursing homes in the U.S. are for-profit (around 68%), a trend that only continues to grow. Some states have far more for-profit nursing homes than others: Texas, California, Oregon, Louisiana, and Oklahoma have among the highest rates of for-profit facilities. States in the upper Midwest, such as Minnesota, Wyoming, North and South Dakota, have more non-profit nursing homes.

Nursing home providers that operate for-profit prioritize shareholders first and foremost. Their goal is to provide as much money to their owners and shareholders as possible, while non-profits have no responsibility to shareholders and can thus prioritize patients and quality of care.

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Photo credit: Mee Lin Woon

Photo credit: Mee Lin Woon

Our nursing home negligence lawyers work with individuals and families who have already committed to long-term care. It’s no secret that negligence and abuse in nursing homes is more likely to occur in poorly-run facilities without adequate resources. Long-term care insurance can help families pay for the highest-quality nursing home, reducing the likelihood that abuse or neglect will occur.

This type of coverage pays for all or part of nursing home, home health care, and assisted-living facility costs. More than two-thirds of Americans aged 65 and over require some type of long-term care, the best possible models of which are extremely expensive. Due to rising costs, residents and families either turn to Medicare and Medicaid or to inexpensive nursing homes. This can have disastrous results, from abusive staff to sub-standard living conditions.

About eight million people in the U.S. have long-term care coverage, which is offered by a dozen insurance companies. Many companies are beginning to offer alternative long-term care options as part of retirement or life insurance plans as well.

Broaching the subject with an elderly loved one may be difficult, but an open discussion is always the best avenue. Some families may benefit from asking outsiders to help start the conversation, such as physicians, friends and neighbors, clergy members, and geriatric screening programs. On average, people who purchase long-term care coverage are 65 years of age.

As baby boomers get older, more and more Americans are expected to enter nursing homes. Anyone considering long-term care insurance should do so carefully: shop among several policies, consult trusted advisors, and check Consumer Reports. More detailed information on this type of coverage and the various types can be found here.

Choosing a Nursing Home

For those who are beyond this point, choosing a nursing home for yourself or a loved one is often an overwhelming and stressful time. There are many different types of nursing homes, ranging from intensive 24-hour-care to general monitoring with little active nursing. There are for-profits and non-profits, small and large, run by individual owners or large corporations.

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file0001449879863The family of an Illinois nursing home resident recently filed a wrongful death lawsuit against an ambulance company after the woman fell from her wheelchair during transport. Our team of nursing home negligence lawyers details this case and others like it we are handling.

This case involved the resident, Marjorie Stearns, her nursing home operated by Countryside Care Center, the medical transportation company, Ridge Ambulance Service and the ambulance driver Jerry Brooks. Marjorie was 89-years-old at the time of her death and suffered from dementia and frequent falls. In September 2009, she was transported to and from a dialysis facility by Jerry Brooks, working for Ridge Ambulance Service. Brooks maintains that Countryside never gave him any special instructions about Marjorie’s risk of falling and cognitive impairment.

On the trip back to the nursing home, Marjorie was seated in a wheelchair secured to the floor by wheel locks and a safety belt on her shoulder and hip. A lap belt was not used. Marjorie brought a book with her, which dropped during the ride back to Countryside. While trying to pick up the book Marjorie fell forward and struck her head on a metal object. She passed away two weeks later.

Marjorie’s son filed a wrongful death lawsuit against Countryside, Ridge and Jerry Brooks. Initially, an Illinois court threw the case out before trial, saying Stearns could not prove his mother was injured as a direct result of the Countryside’s negligence because the facility was not liable for the medi-van’s service.

Stearns appealed to the Illinois Supreme Court, which ruled that Countryside did indeed owe Marjorie a duty of care and breached its duty. Countryside breached its duty of care when it failed to communicate with Ridge and Brooks and failed to provide additional staff to assist Marjorie. The Court reversed the judgement and sent Stearns’ case back to a lower court.

Nursing Home Duty of Care

During depositions, Countryside’s administrator testified that she was responsible for all facility operations, including hiring transportation services. Because Marjorie was a fall risk, had a history of falls, and suffered from dementia, Countryside had a duty to ensure precautions were taken during medi-van transport. This could have been accomplished in several ways, either by communicating with the company, the driver, or providing an employee to escort Marjorie to the dialysis center.

Nursing homes have the legal responsibility to protect residents from harm and injury which is not limited to the facility campus. The relationship between a nursing home and its residents is unique, as residents are rendered dependent on the facility to prevent injury, giving rise to a duty of care.

Courts typically consider four factors when determining duty:

1. The reasonable and foreseeability of the injury
2. The likelihood of the injury
3. The magnitude of the burden of protecting against the injury
4. The consequences of placing that burden on the defendant Continue reading

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A recent study found that elderly patients admitted to hospital trauma units are increasingly likely to be discharged to nursing homes instead of inpatient rehab facilities or home. Our team of nursing home negligence lawyers examines how this is negatively impacting the health and safety of our elderly loved ones.

elderly-hospital-patient-543797-mThe study, published in The Journal of Trauma and Acute Care Surgery, used data from 2003 to 2009. Researchers found that elderly trauma patients were about 34% more likely to be sent to a nursing home and 36% less likely to be sent to an impatient rehab facility (IRF) compared to other trauma patients.

To compare, stroke trauma patients were 78% more likely to be discharged to an IRF. Both stroke and elderly trauma patients are equally dependent on post-discharge rehabilitation. Being discharged to nursing homes is associated with higher risk of death for patients of any age.

The elderly are the fastest-growing trauma population, likely due to the rapid rise in Americans aged 65 and older. Researchers in this study note that hospitals should be investing their time and money to figure out how to ensure the best possible outcomes for elderly trauma patients. This can include investing in post-acute care discharge planning, according to the lead author of the study, Dr. Patricia Ayoung-Chee.

Dr. Chee mentioned that this type of discharge planning may have to be individualized to each patient. Currently, hospitals and trauma centers base much of their discharge decisions off reimbursement and insurance factors. Although this may be best financially, it is not often what is best for the patient.

Medicare requires that at least 60% of all patients admitted to IRFs have at least one of 13 pre-determined conditions for that IRF to be eligible for reimbursement. Among the 13 conditions include stroke and hip fracture.

Elderly patients have more far-reaching needs than just those 13 conditions listed on that Medicare list. An elderly person who suffers a fall needs to be treated so future falls are prevented, and the patient can return to their original functional status and independence. If an elderly patient is simply admitted to a nursing home, their condition will likely worsen irreparably. We have seen too many cases of elderly patients admitted to nursing homes “just temporarily” while recovering, only to spend their remaining days in a poorly-run facility.

IRFs vs. Nursing Homes

Numerous studies have found that IRFs provide better care to patients than nursing homes; IRF patients live longer, have fewer ER visits, fewer rehospitalizations, and spend more days at home. One study focused on hip fracture patients, finding that instead of receiving therapy then returning home, nursing home patients were more likely to remain in the nursing home a full year after their hip fracture.

The differences between nursing homes and IRF centers are systemic. IRF centers often have support groups and mentor programs that match patients who have faced the same health conditions. For example, a former stroke patient could mentor a current stroke patient currently in an IRF, to serve as a role model for following complex medical regimens and improve quality of life. Mentors share information, help relieve anxiety and isolation, and encourage participation and healing.
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grandmas-birthday-433128-m.jpgOur team of nursing home negligence attorneys receives similar complaints by families with elderly loved ones, concerned over the true quality of care they are receiving. Families rarely see actual instances of abuse or neglect, rather noticing their loved one’s physical, mental and emotional health steadily decline.

Residents who are neglected or abused in nursing homes often become malnourished, reclusive, overmedicated – more simply, not themselves. Nursing homes have been operated the same way for decades, to meet government regulations and qualify for Medicare and Medicaid reimbursements.

Increasingly, nursing home chains are being bought out by large corporations so that now more than one-third of all American nursing homes are run by large, for-profit companies.

The nursing home industry is in desperate need of reform. There are a few pioneers looking toward the future, however. Our population is rapidly aging – by 2050, about one-third of American citizens will be 65 years or older and about 4% will be 85 or older.

Big, for-profit nursing home chains offer long-term care at relatively inexpensive rates. They are able to lower rates by implementing various cost-saving features, such as industrial cafeteria, shared bedrooms, and overworking staff.

The Green House Project and Large-Scale Change

Among those with an optimistic plan for future care for the elderly and disabled include the Green House Project, which we wrote extensively about here and here. The hard truth is that nursing homes hinder resident freedom and happiness; studies show that depression among residents is significant. Perhaps it is the approach altogether that is wrong: tightly controlled lonely institution devoid of personal or loving atmosphere. Profits and economic efficiency are of the utmost importance, rather than the residents or staff quality.

Concepts like the Green House Project aim to remedy this inherent problem. In 2000, Dr. Bill Thomas decided to build a nursing home from scratch that was affordable, could accept Medicare and Medicaid patients, and, most importantly, appeared more like a home than an institution. The first was built in Tupelo, Mississippi.

Each Green House has 10-12 private bedrooms with attached bathrooms (which helps control infection), surrounding communal living and kitchen areas. There are certified nurse assistants and the primary caregivers, which take care of food preparation, housekeeping, and activities for residents, among other duties. The team also works closely with other Green House staff, so they may manage their own schedules and decision-making processes.

In the 15 years since the first Green House opened (there are now nearly 175 in 27 states), several studies have shown exceptional results. These studies show that Green House staff is happier with their jobs and more likely to stay in their positions, residents enjoy a higher quality of life, and families are happier with the settings than traditional nursing homes.

The Green House Project places emphasis on radical culture change within long-term care facilities. Residents get a say in the menu plans, for example, and the care is centered on each unique person’s needs. The staff feel empowered because they can organize their own schedules and are coached in their positions, instead of ordered to meet certain goals by executives.

Perhaps the best part is that Green Houses are affordable – more than half of residents are on Medicaid. Residents are not only happier, but healthier as well. One study found the rate of hospitalization per year was about seven percentage points lower for Green House patients compared to those in a traditional nursing home. Employees like their jobs, are not rushed through their duties, and thus are far less likely to abuse or neglect residents.
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wheelchair-945156-m.jpg One of the country’s largest nursing home chains was recently hit with a $38 million negligence and fraud settlement. This type of healthcare fraud is common in poorly-operated nursing homes throughout the country. Any evidence or suspicion of fraud is a red flag of systemic negligence in a nursing home.

Extendicare was charged with billing Medicare and Medicaid for unnecessary and inappropriate services, such as physical therapy, in 33 nursing homes. Extendicare owns and operates 150 nursing homes in 11 states. This is the largest settlement in the Justice Department’s history involving nursing home fraud.

Prosecutors for the federal government said that Extendicare failed to hire enough nurses to properly care for residents in its facilities. Understaffing of this nature is rampant in nursing home owned by large chains and can lead to severe problems, such as more frequent falls and bedsore development
They went on to say that the care provided at these 33 facilities was so poor that many residents became dehydrated, malnourished, and suffered infections. This led to unnecessary hospitalizations, head injuries, and a considerable decrease in quality of life.

Whistleblowers Reporting Fraud, Saving Lives

The claims against Extendicare’s nursing homes were first filed by a whistleblower in Ohio who accused the company of poor care. Another whistleblower in Pennsylvania also accused the company of inflating their Medicare reimbursements, providing unnecessary care to residents to increase how much they could bill the government. More information on the Pennsylvania whistleblower can be found here.

Medicare reimburses healthcare centers based on the amount of rehabilitation services a resident needs. Nursing homes, particularly for-profit chains, often exaggerate how much rehab a resident needs to milk money from Medicare and Medicaid. The nursing home chain Ensign, for example, recently agreed to a $48 million settlement for similar fraud charges.

The Obama Administration has made nursing home investigation and prosecution a top priority in the justice system. Overall, investigators go after nursing homes that defraud Medicare and Medicaid, and then pursue problems with resident care such as understaffing and overmedication. Poor care and government fraud go hand in hand: if a nursing home is unethical enough to subject residents to unnecessary treatments, it is surely taking other measures to cut costs at the expense of resident safety.

Thus, prosecuting nursing homes for health care fraud not only protects taxpayer funds, but protects the health and safety of residents as well. This was demonstrated in Extendicare’s suit by internal emails shown in court. One Extendicare executive expressed concern that a resident with a seizure condition was physically unable to participate in physical therapy. He described this as a “missed opportunity … a financial loss of 2300 bucks.”

The settlement included terms requiring Extendicare to enter a five-year integrity agreement. This will have an independent monitor assess Extendicare facility’s staffing levels among other quality measure to make sure it is making improvements. Fortunately, this agreement applies to all 150 Extendicare nursing homes in the U.S.

The rise in for-profit nursing home chains is pervasive – over 70% of nursing homes are now for-profit – at the cost of elderly, sick and vulnerable residents. These chains operate to please investors, not residents, and skimp on the most critical aspects of care like trained nurses and medical supplies.
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