Nursing Home Abuse Lawyer Blog

The Third U.S. Circuit Court of Appeals handed down a landmark opinion that affects county-owned nursing home facilities in that Circuit.

The Third U.S. Circuit Court of Appeals ruled that the Federal Nursing Home Reform Amendments give residents of county-run nurisng home facilities the right to bring lawsuits under Section 1983 concerning the quality of their treatment. "The language used throughout the FNHRA is explicitly and unambiguously rights-creating," stated U.S. Circuit Judge Richard Nygaard in his 23 page opinion concerning Grammar v. John J. Kane Regional Centers. Judge Nygaard further stated, "These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients."

The ruling concerns a suit brought by the Administratrix of the Estate of Melvinteen Daniels, an 80 year old mother of eight who died in an Allegheny County, Pennsylvania operated nursing home facility after suffering neglect, malnourishment, and fatally severe bed sores, leading to Ms. Daniels death by sepsis.

Judge Nygaard found that nursing homes "are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental, and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities" and that the statute "specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms".

FNHRA are amendments to the Medicare Act that were passed in 1987 as part of the Omnibus Budget Reconciliation Act that were meant to address concerns of poor quality care in state and county run nursing home facilities. Prior to the passing of FNHRA, there were "only two sanctions available against nursing homes for noncompliance with federal participation requirements. First, the Secretary of Health and Human Service or the states themselves could decertify the facility and terminate the nursing home's eligibility to receive Medicaid reimbursement. Second, if noncompliance was not an immediate and serious threat to the residents' health and safety, the Secretary or the states could deny payment for new admissions for up to 11 months." These remedies were rarely used.

We discussed the tragic situation at Dawson Pointe in Dawson Springs, Kentucky in our previous blog. You will recall that an employee at Dawson Pointe took nude photographs of a female resident sitting nude in a shower chair. Phyllis R. Johnson, 19 and a former nursing assistant at the facility, was indicted by the Hopkins County Grand Jury on charges of video voyeurism and adult abuse. Johnson used her cell phone to record two videos on April 1, 2009. Johnson was fired from the facility on April 20, 2009, the day following her arrest. The Terry Law Firm is experienced in handling cases of nursing home abuse and neglect. Please contact us at (888) 317-2525 or visit us on our website at www.nursinghomejustice.com.

In this struggling economy, everyone is more aware of life's ever increasing expenses. As we grow older, worry about dealing with the financial burden of the "extras" that Medicare and Medicaid don't cover, such as part-time home care, physical therapy sessions, and various prescription drugs, creeps in. Long-term care insurance seems to be an answer to the ever-growing need.

Should I purchase long-term care insurance?

Medicare only pays for short-term medical care at home or for a limited stay in a nursing home facility after a hospitalization. Medicaid pays for long-term care - but only after people have spent the majority of their assets. If a situation exists where one half of a married couple has to enter a nursing home facility and the couple "spends down" all of their assets, the remaining half of the couple could be in a financial predicament if they outlive their spouse. Long-term care insurance can help to protect assets and pay for expenses.

At what age should I worry about carrying long-term care insurance?

Try to begin considering long-term care insurance in your 50s. If you wait until your 60s, pre-existing health problems may preclude you from qualifying for a policy. Additionally, the younger you are, the lower the premiums.

What type of coverage am I looking for?

First, under nearly all long-term care policies, coverage begins when the insured can no longer perform activities of daily living, such as walking, eating, or bathing, due to a physical or mental impairment. Confirm that long-term care coverage will begin if you cannot perform any one of the three activities - not all three.

Make sure that your long-term care policy covers all types of care, such as nursing home care, assisted living care, and home health care attendants. Most policies do provide for all these types of care, but you should review the policy carefully to ensure that the policy does not contain narrow restrictions.

Ensure that your policy covers all types of caregivers. You might want to have someone come in and prepare meals and clean, so make sure your policy pays for "skilled, intermediate, and custodial care".

Your policy should cover a wide range of illnesses and injuries. Carefully read your long-term care policy to ensure that your policy does not exclude more than it includes.

Inflation protection is key. Your long-term care coverage should increase the daily benefit amount enough to sufficiently cover inflation. If it does not, you could be responsible for the overage.

Long-term care insurance is expensive. To try and maximize your benefits and try to lessen the financial burden:

- Consider avoiding lifetime benefits. If you enjoy playing the odds, you might want a policy that covers a set amount of time, such as four to five years. The average nursing home stay is two to three years and only 12% of nursing home residents live longer than five years once they enter. Of course, if you are in that 12%, you may have a problem paying for the care after the time period expires.

- Find a policy that pays a monthly sum. That way, you have the flexibility to receive more care on some days and less on others.

- Consider a "front-loaded" policy. With these types of policies, the insured pays the entire cost of the premiums before retirement and a deceased income.

- Consider cash benefit policies. These types of policies will send you regular cash payments. You are free to use these payments for whatever you wish.

This information is provided to inform of various options and is certainly not legal advice. If you are in the market for long-term care insurance, contact a local elder law attorney and/or insurance agent for more specific information on this important topic.

We discussed the tragic abuse at the Good Samaritan nursing home in Albert Lea, Minnesota in previous blogs. Aides at the facility targeted residents suffering from Alzheimer's disease, dementia, or similar disease because "they don't have their minds". To "make work fun or to get a good laugh", the accused aides abused residents by ranged from spitting in a resident's mouth, groping of genitals, hitting and/or touching residents in the breast or genital area, sitting on the lap of a female resident in a wheelchair with bare buttocks, sticking fingers in mouths or noses to keep residents from screaming, and taunting them.

Now, one of the aides, Brianna Broitzman, is denying abusing any of the residents at the nursing home facility, although other statements differ. Those statements, obtained from other nursing assistants in an interview with the Minnesota Department of Health, confirm that Broitzman was verbally and mentally abusive to residents. Broitzman is asking a judge to rule statements made to investigators are inadmissible.

Arden Courts, a personal care home located in Louisville, Kentucky, was cited for the second time in less than six months for failing to properly care for its residents. On June 22, 2009, Arden Courts was hit with a "Type A" citation, the most serious citation available from the Cabinet for Health and Family Services, and faces a possible fine of up to $5,000.

The citation came after investigators determined that a resident was injured on June 12 in a fall at approximately 4:45 a.m. and did not receive medical attention despite her complaints of pain and informing staff that she believed she had broken a bone. No medical attention was provided until family members demanded that a doctor be called after they arrived in the afternoon and saw the resident's condition. The resident was taken to the emergency room and was treated for a pelvic fracture, low blood pressure, and a laceration on her elbow that required stitches. This resident was not to walk without a walker, however, no walker was with her when she was found on the hallway floor early that morning. This resident also required total assistance with bathing and other personal care tasks.

In addition to failing to seek medical treatment for the resident's injuries, investigators determined that the facility also failed to prevent accidents and ensure the safety of its residents. The citation also found that the facility was caring for residents requiring more assistance and services than the facility is licensed to provide.

This facility was also cited in February 2009 for failing to provide appropriate care for seven residents who suffered repeated falls. Two of those residents had developed bedsores and four residents had suffered significant weight loss. All seven residents needed more skilled care than Arden Courts could provide as a personal care home.

The Terry Law Firm is experienced in handling cases of elder abuse and neglect. Please contact us at (888) 317-2525 or visit our website at www.nursinghomejustice.com

We discussed this matter in a previous blog. Twenty-four year old Mark Genetiano was arrested after allegedly fondling an elderly woman's breasts while working as a CNA at Kahala Nui retirement community.

Now, Genetiano has been indicted on six counts of sexual assault involving four victims. The victims range between 89 and 92 years old and were unable to fight back due to various stages of dementia. Genetiano's co-workers allegedly witnessed the acts.

Once a firm date is set, Genetiano faces Circuit Court arraignment and will enter a plea. If convicted of one count of third-degree assault, Genetiano faces up to five years in prison. Due to the multiple count indictment, prosecutors could seek an extended prison term of up to ten years in prison.

The Terry Law Firm is experienced in handling cases of nursing home sexual abuse. Please contact us at (888) 317-2525 or visit us on our website at www.nursinghomejustice.com.

Tashnika Madison, a CNA at Silver Cross Nursing Home in Brookhaven, Mississippi, allegedly used her forearm and pushed against the back of a nursing home resident's neck while she was placing her in a mechanical lift. Fortunately, the resident was uninjured and was only shaken up.

Madison pleaded guilty to one count of misdemeanor abuse of a vulnerable adult and was ordered to pay a fine of $268.50.

The Terry Law Firm is experienced in handling cases of nursing home abuse and neglect. Please contact us with any questions or concerns at (888) 317-2525 or visit us on our website at www.nursinghomejustice.com.

We discussed this story in a previous blog. Eighty-four year old Harrison Blankenship was arrested for first degree sexual assault at Bradford Square Rehabilitation and Nursing Center after a facility staff member walked in and caught him sexually abusing an 87 year old female resident.

Now, Blankenship says "it was all a big misunderstanding". Allegedly, a nurse at the facility saw Blankenship pushing the resident down the hall to her room. A nurse entered the room and found the curtain closed. When she opened it, she saw Blankenship sexually abusing the resident. Blankenship says the nurse was "mistaken".

Blankenship, a World War II veteran and survivor of a Nazi Prisoner of War camp, is already a registered sexual offender for the rape of a 13 year old in 1995.

The Terry Law Firm is experienced in handling cases of nursing home sexual assault. Please contact us with any questions or concerns at (888) 317-2525 or visit us on our website at www.nursinghomejustice.com.

We discussed Life Care Center in Red Bank and its admissions suspension in a previous blog. Admissions to Life Care Center in Red Bank were suspended for new residents after an inspection revealed deficiencies in administration, performance improvement, physical services, nursing services, medical records, and pharmaceutical services.

Sanctions were lifted on June 23, 2009 after the Tennessee Department of Health found the facility was in compliance with regulations once again.

Natasha Petit-Homme, an admissions clerk at Woodlake Nursing and Rehabilitation Center in West Palm Beach, Florida, was arrested on June 25, 2009 for allegedly stealing over $2,300.

Petit-Homme is accused of stealing an elderly woman's checkbook and writing herself a check in the amount of $2,341. She deposited the money into her personal checking account. The victim did not give Petit-Homme permission to write a check nor did she have permission to cash the check.

Petit-Homme is charged with one count of exploitation of an elderly person, which is a third-degree felony. If she is convicted, she faces a fine of $5,000 and up to five years in prison.

The Terry Law Firm is experienced in handling cases of nursing home abuse and neglect. Please contact us at (888) 317-2525 or visit us on our website at www.nursinghomejustice.com.

Regal Health and Rehab Center, a nursing home facility located in Oak Lawn, Illinois, faces possible closure despite correcting recent violations and becoming compliant with state and federal regulations. We had discussed Regal Health and Rehab Center in a previous blog. The facility was recently cited for dirty drinking fountains and appliances, water damaged ceilings, rodent droppings on the floors, employees washing their hands in sinks containing food, and employees smoking in the building.

The Illinois Department of Public Health is seeking to close the facility for their history of repeat offenses of noncompliance with state and federal regulations. According to Melany Arnold, a spokeswoman for the Illinois Department of Public Health, "The state feels we have grounds to seek license revocation." The spokeswoman acknowledged that the facility is currently in compliance, but that has not always been the case. Arnold further said, "Regal has not made corrections soon enough or to the level it needs to be corrected." Regal has requested a hearing, which will be on July 27, 2009.

In April 2009, a resident attached to an oxygen machine lit and smoked a cigarette, causing a small fire. The patient suffered burns and died shortly afterwards. In 2004, Regal was fined $10,000 by the Illinois Department of Public Health for failing to investigate an alleged sexual abuse.

The Terry Law Firm is experienced in handling cases of nursing home abuse and neglect. Please contact us with any questions or concerns at (888) 317-2525 or visit us on our website at www.nursinghomejustice.com.

Aviara Healthcare Center was assessed a "AA" citation, the most severe citation available under California law, and fined $100,000 for its role in a recent resident death.

In late April 2009, the resident was admitted to the facility for rehabilitation for a fractured hip and was doing well. On May 9, 2009, the resident fell while trying to get out of bed early one morning. He was uninjured, but to ensure his safety, nursing staff decided to attach a tab alarm to his clothes to alert staff if he attempted to get out of bad. The very next morning, on May 10, 2009, the resident got out of bed around 3:00 a.m. and walked into the hallway. No staff responded to an alarm and it is unclear if the alarm ever sounded. As the resident began to enter the hallway outside of his room, he stumbled. The hallway did not have a handrail, so the resident grabbed a Hoyer lift that had been improperly stored in the hallway outside of the resident's room. A Hoyer lift is a large, heavy mobile mechanical lift used to lift residents out of bed. The resident fell to the floor, pulling the lift down on top of him and striking his head on the metal frame of the lift.

The impact of the fall was so severe that the resident suffered a severe bleed in the brain and the entire brain was pushed 1/3 of an inch past the center point of his brain to the right side. He died three days later due to blunt force trauma to his head.

The California Department of Public Health investigated the incident and found that seven different staff members knew that the lift was supposed to be stored in the shower rooms when not in use. Even after the resident's tragic death, state investigators found the lift in the same position outside the deceased resident's room on May 13, 2009 and May 17, 2009.

The Terry Law Firm is experienced in handling cases of nursing home abuse and neglect. Please contact us with any questions or concerns at (888) 317-2525 or visit us on our website at www.nursinghomejustice.com.