Boston Personal Injury Lawyer - Nursing Home & Elder Abuse

Agreement to waive jury trial against nursing home may not be a good deal for you

Steven Schafer — Wed, 25 Feb 2009 11:08:27 GMT

Admitting a member of your family to a nursing home can be stressful. Your grandparent, parent or spouse often needs immediate health care and attention and they can no longer live on their own, or you can no longer care for them in your home.

It’s a trying period of transition marking a loss of independence for the patient and sadness for the family.

Under these circumstances, it’s not easy focusing on the details of the admissions contract. Yet it’s very important that you do so, particularly if the nursing home demands that the patient waive his or her right to a jury trial in the event of a lawsuit resulting from an injury suffered while in its care.

Unfortunately, this is not uncommon. Long-term care facilities often seek to avoid a lawsuit in court by having a patient or their guardian agree to arbitration, which is an out-of-court proceeding to resolve disputes. Arbitration in and of itself can be beneficial, but preserving your right to a jury trial is very important because it leaves that option open should you decide that’s a better route to take for holding a nursing home accountable for negligent care and getting fair damages for injuries caused by the nursing home.

Some courts have ruled that pre-injury agreements to waive a jury trial are unfair and unenforceable – particularly if signing the agreement is necessary to gain admission to the nursing home, or if the waiver is buried in a multi-page contract and isn’t fully explained by the nursing home.

But some courts have upheld these waivers. In my state, for example, the Massachusetts Supreme Judicial Court (SJC) enforced an arbitration agreement between a nursing home and the patient’s son, who was acting as his father’s representative under a durable power of attorney.

In Miller vs. Cotter, the court in upholding the agreement emphasized three main factors specific to the case: the waiver agreement was not a condition of being admitted; it was a two-page document separate from the lengthier admissions contract; and the son had a 30-day period to reject the waiver agreement.

Also, the SJC refused to void the agreement as a matter of law. The court said federal and state law favors agreements to arbitrate, unless they are grossly unfair and one-sided. The court decided that jury-trial waivers as part of the admissions process at nursing homes are not unconscionable under law.

Fortunately, the Miller case doesn’t mean that all jury-trial waiver agreements will be upheld in Massachusetts. In another recent case, Constantino vs. Frechette, the Massachusetts Appeals Court ruled that nurses at a long-term care facility could be sued in court for the wrongful death of a patient, even though the facility and patient had agreed to arbitration. The court said the agreement did not specifically cover individual employees.

Allowing nursing homes to avoid jury trials before an injury occurs is arguably a bad public policy. Each injured person’s situation is different. They should have the choice of assessing whether it’s better to have a jury decide the negligence of a nursing home and what damages an injured person should receive, or whether it’s better to have an arbitrator resolve those issues.

Additionally, court rules often give the nursing home resident a better chance to prepare for trial by forcing the nursing home to turn over critical information. Arbitration rules, on the other hand, can favor the nursing home because they don’t always allow for as much investigation and discovery. An intelligent assessment of these factors can’t be made before the injury even occurs, or before the resident ever gets advice from a nursing home negligence lawyer.

A potential problem for health care consumers following a decision like the SJC’s ruling in the Cotter case is that other health care providers might start demanding jury-trial waivers. What’s to stop a hospital emergency room from making treatment available only if a patient agrees to arbitration in the event of malpractice? Or what if HMOs or primary care physicians start demanding jury waivers?

Even if medical treatment isn’t conditioned on signing an arbitration agreement, is it reasonable to assume most patients will even understand the full implications of waiving their right to a jury trial – especially when they are more focused on the illness or injury that brought them to the emergency room or their doctor’s office?

Bottom line: If you face having to admit a member of your family into a nursing home, it’s important to take the time to understand what’s in the admissions contract, including any provision requiring you to waive your right to a jury trial pre-injury.

Originally posted at InjuryBoard by Steven Schafer

Bedrails can kill patients

Steven Schafer — Wed, 25 Feb 2009 10:27:36 GMT

Despite federal safety regulations and an increased awareness of the dangers of using bedrails at long-term care facilities and hospitals, patients continue to die from suffocation, strangulation or asphyxiation.

How do these tragedies occur?

One way is when patients slip through a gap between the mattress and the bottom of the raised bedrail, their heads get stuck, and they strangle to death. Sometimes their bodies are compressed causing asphyxiation. Or patients suffocate when they get wedged between the bedrail and the side of the mattress, with their faces pressed against the mattress. These hideous entrapment deaths usually occur with elderly patients. As long ago as 1995, the U.S. Food and Drug Administration issued a Safety Alert to hospitals and nursing homes warning about entrapment hazards and safety concerns that accompany the use of bed rails.

I’m currently handling a case involving the strangulation death of an 87-year-old Massachusetts woman in 2006. The woman slid off her nursing home bed, and caught her chin on the raised bedrail. Her head became wedged between the bed rail, mattress and bed frame, with the rest of her body in a sitting position toward the floor, causing asphyxiation.

The Massachusetts Department of Public Health concluded that the woman’s mattress pad alarm and personal safety alarm had not sounded to alert the nursing staff that the woman was in distress. Nonetheless, the woman’s tragic death could have been prevented if the nursing home had taken the proper steps to identify and eliminate the risk of entrapment hazards associated with bedrails.

Compounding these tragedies is the fact that they could have been easily avoided. Long-term care facilities and hospitals can take relatively easy and inexpensive steps to protect patients from these dangers.

For example, they can install cushions to fill the gap between mattress and bedrail, much like bumpers used in a baby crib. As an alternative, they can install see-through netting to fill the gap, which provides patients better visibility from their beds. Another safeguard is to simply use thicker mattresses to eliminate the gap.

Nursing homes and hospitals have used bedrails for decades with the intention of restraining patients from falling out of bed and suffering injuries. However, medical studies actually show that bedrails can increase the likelihood of falls as elderly patients try to crawl over or around them. A safer option is to simply place a patient in a bed low to the floor with safety mats next to the bed, and avoid using bedrails altogether.

Some long-term care facilities and hospitals increase the potential for injuries and death by “mixing and matching” beds, mattresses and bedrails from different manufacturers, causing unsafe integration of bed parts. Not only that, nurses and nursing assistants often receive inadequate training on the proper use of bedrails, and effective monitoring of patients.

A related problem is that the cause of death is often misdiagnosed because the suffocation can result from a gentle compression of the body or covering of the nose and mouth. The trauma often associated with strangulation, such as bruising of the neck or a fractured hyoid bone, which lay at the base of the tongue, is not always present or may not be identified.

An even larger potential problem is that long-term care facilities and hospitals either destroy or alter their medical records (more often than you’d like to believe), which makes it harder to prove their negligence in the use of bedrails and monitoring of patients.

The sad truth remains that bedrails can cause more problems than they solve. There’s often no need to use them, yet they are continuing to be used, and people are dying or suffering serious injuries as a result.

Originally posted at InjuryBoard by Steven Schafer

Reported Physical Abuse in Nursing Homes Declines

Ken Margolin — Wed, 22 Aug 2007 07:00:00 GMT

There was some good news in a 2005 study from the National [Nursing Home] Ombudsman Reporting System ("NORS"). Complaints involving physical abuse in nursing homes decreased from 5,426 in 1998 to 4,137 in 2005. According to the report, complaints of nursing home physical abuse ranked 19th out of 128 categories of complaints relating to nursing home conditions.

While any decline in numbers of abuse of nursing home residents, is obviously positive, nothing in the NORS report is cause for celebration. There are undoubtedly many cases of undiscovered and unreported incidents of nursing home abuse, for each incident that makes into the NORS database. One instance of abuse is too many. CBS News quoted a federal nursing home abuse investigator, as explaining that as serious as the statistics of abuse are, the actual conditions inside nursing homes, is far worse. The investigator, Paul Hodge, said that "[E]lder abuse is fast becoming one of the greatest law enforcement challenges of the next century." Other federal officials interviewed noted that most nursing home problems, especially physical abuse of residents, go unreported. Congress is trying to address the problem, having enacted provisions in the Older Americans Act of 2006, aimed directly at nursing home abuse. States have to do their part, and families with loved ones in nursing homes have to be vigilant to the conditions in their loved one's nursing home.

Originally posted at InjuryBoard by Ken Margolin

$160 Million Nursing Home Abuse Verdict

Ken Margolin — Thu, 02 Aug 2007 07:00:00 GMT

Corporate nursing home officials who bank on jurors discounting residents' injuries from nursing home abuse, because of their age or pre-existing illness, may think again after a $160 million dollar verdict in Texas. The victim of the abuse was an 81 year old resident of the Comanche Trail Nursing Home in Big Spring, Texas. Nursing home personnel assigned him a new roommate who was mentally ill and violent. The roommate savagely beat the resident.

Although he recovered physically within a few weeks, he declined emotionally and was never the same for the rest of his life. He died three years after the beating. The lawsuit was brought by his family. Family members described him as a man who went from a man who enjoyed his family and grandchildren and friends at the nursing home, to someone who was frightened, withdrawn, and without pleasure in life.

Plaintiffs contended that nursing home officials knew the roommate was violent and should have been discharged from the home, but did not want to lose profit, so they placed him with the decedent. The defense attempted to justify their placement of the aggressive roommate. Despite the fact that the victim suffered a demonstrable head injury and concussion from the attack, the defense characterized the injuries as minor and quickly healed. The jury awarded $10 million in compensatory damages, and $150 million damages in punitive damages. The verdict has been appealed.

Originally posted at InjuryBoard by Ken Margolin

Sexual Abuse of Disabled Persons a Continuing Shame

Ken Margolin — Thu, 14 Jun 2007 14:00:00 GMT

Once again, a case of sexual abuse of disabled persons by a caretaker, is in the news. Wayne Albert Bleyle, pleaded guilty in San Diego, of molesting brain damaged children at Rady's Children's Hospital, where he had worked as a respiratory therapist. Bleyle had been charged in early 2006, and has been in jail since, on $5 million bail. The prosecutor, Laura Gunn, described the case as 'one of the worst child molestation situations imaginable." Undoubtedly true, but the sad fact is that sexual abuse of people with disabilities, by caretakers, is not rare.

Last year, the Seattle Times, had a chilling article on multiple episodes of sexual abuse in nursing homes. There is no ready solution for this problem. Deeper background probes of job applicants, might be a start, but in many states, civil liberties activists, lobby for reduced ability to learn of a job applicant's mental health or criminal history. If a patient or resident has the ability to claim they were abused, that complaint must be taken seriously and investigated, even if the individual is severely handicapped.

In Seattle, authorities did not investigate many claims because the individual making them, had serious mental disabilities - circular reasoning, since the disability is what made the victim vulnerable to being sexually abused. The administrators of any facility treating people with severe disabilities, must be highly vigilant for signs that an employee might be harming patients. When a perpetrator is discovered and proven guilty, punishment may be sufficiently severe to fit the crime. Many of these predators, however, are never caught.

Originally posted at InjuryBoard by Ken Margolin

Nursing Home Neglect Settlement

Ken Margolin — Thu, 07 Jun 2007 14:00:00 GMT

A significant settlement in a disturbing case of nursing home neglect, was reported in this week's Massachusetts Lawyers Weekly. A generally healthy, active, older women (exact age unspecified in the report), entered the nursing home for rehabilitation after a compression fracture. Darvocet, which the woman was taking for pain, has a known side effect for many people, of constipation. Despite continuing complaints of constipation, the patient was given nothing other than milk of magnesia, which was ineffective.

After she continued to complain of constipation, the woman was given a psychiatric workup, not diagnosis of the cause of the constipation, despite developing a fever. The psychiatric nurse who did the workup, informed the nursing department that the ongoing constipation had to be addressed. It was not. By the time the patient was sent to the emergency room, after nearly a week of increasing constipation-related pain, she was in septic shock. She died of a perforated bowel. The nursing home medical records obtained after suit was filed, showed that she was having regular bowel movements, raising the specter of posthumously doctored records. In light of the settlement - for $350,000 - that question will remain unanswered.

This case involved many elements familiar to plaintiffs' medical malpractice lawyers. Monitoring of the patient's condition, a nursing home's fundamental obligation, was inadequate. The patient's complaints were not taken seriously. There was a failure of both communication and leadership, in that no nursing home doctor or health professional, stepped forward to demand that the woman receive urgent care. Only when the woman was in extremis, was the gravity of her condition comprehended - in the emergency room, not the nursing home.

Originally posted at InjuryBoard by Ken Margolin

Incidence of Nursing Home Abuse

Ken Margolin — Wed, 30 May 2007 07:00:00 GMT

Identifying just how much abuse occurs in nursing homes, is difficult. Victims are often unwilling or unable to speak up. Perpetrators may be nursing home staff, who have ongoing contact with the victim, and whose presence alone, may be intimidating. Nursing home assaults can be committed by a resident, when staff supervision is inadequate, lackadaisacal, or uncaring. It is almost certain, however, that abuse in nursing homes occurs regularly- a national disgrace.

A comprehensive solution to the problem of nursing home abuse, will be difficult to achieve. Homes across the country, and even within the same geographical region, vary widely in size, quality, and financial stability. No single characteristic of a home, be it part of a nationwide chain, or a single family-owned operation, will guarantee safety for its residents. The attitudes of the management of a given home, is crucial to the risk of abuse. Recommendations by advocacy groups emphasize the importance of screening staff carefully before hiring, and treating staff decently, once they are employed.

Families need to be educated on what to look for in their loved ones, that might indicate abuse (for example, a sudden aversion to interaction with others, dietary changes, and of course, unexplained marks or bruises). Staff must be well-educated on their obligations as mandatory reporters if they suspect abuse, and management must insure that the laws regarding reporting of suspected abuse are scrupulously followed. There are exceptions to every rule, but in general, abuse if less likely to occur in nursing homes in which even the most needy residents, are appreciated and respected.

Originally posted at InjuryBoard by Ken Margolin

Epidemic of Nursing Home Abuse Continues

Ken Margolin — Fri, 27 Apr 2007 09:30:00 GMT

Newspapers are printing an advance overview of a GAO (Government Accountability Office) report, due out next week. The GAO investigated nursing homes receiving Medicaid/Medicare payments, to see if incidences of nursing home abuse had lessened since a 1998 GAO report, targeting such disgraces. The new report is not encouraging. Even homes in which instances of shocking abuse occur, receive minimal penalties from the government. Some homes were found to have repeatedly abused residents over a multi-year period, and yet remain eligible for Medicare and Medicaid payments.

The Department of Health & Human Services is the federal agency responsible for monitoring nursing homes receiving federal funds. Apparently, it has failed massively in its responsibility to Americans needing nursing homes. The GAO report shows that little has changed since 1998, since what was supposed to be a major campaign to end nursing home neglect and abuse. Attorney blogs reporting on nursing home neglect and abuse, such as the Illinois Nursing Home Abuse blog, have been quick to report the study. Trial lawyers will do their part to insure that aubse does not proceed without consequences, but only the government can really minimize the scourge.

The GAO concludes that fines imposed by Health & Human Services, are so small, that offending nursing homes regard them as an acceptable cost of doing business. Upon learning of the upcoming report, some Congressmen have vowed new legislation requiring tougher sanctions.

Originally posted at InjuryBoard by Ken Margolin

Staff Abuse of Clients with Developmental Disabilities

Ken Margolin — Fri, 06 Apr 2007 10:55:00 GMT

It's not often discussed outside of professional settings, but the issue of sexuality and developmental disability, poses ethical dilemmas. In fact, a book on the subject, bears that exact title: Ethical Dilemmas: Sexuality and Developmental Disability, Dorothy M. Griffiths, Ph.D., et al., ed., NAAD Press, Kingston, NY 2002. Professionals who work with individuals with developmental disabilities, have worked for years, to establish the recognition that people with developmental disabilities, even severe disabilities, have sexuality like the rest of us, and the right to sexual contact.

In addition to obvious issues, such as birth control and prevention of sexually transmitted diseases, recognizing the sexuality of people with developmental disabilities, requires defining the dividing line between consensual sexual relations, and sexual abuse. The issue is a critical one. A study in the journal, Sexuality and Disability, reported that between 80 - 95% of persons with developmental disabilities are sexually abused at some point in their lives, and that over 90% of the perpetrators, are caregivers. While the origin and accuracy of the statistics may be questioned, there is undeniably a problem.

There are no clearcut answers for every situation, but sexual relations between a staff person caring for the person with developmental disabilities, and the disabled person, should uniformly be considered abusive. The staff person's job is to educate, care, and protect their client. Sexual contact has no place in the relationship. There is no single, degree, or certification, for people who care for persons with developmental disabilities. In many group homes, for example, caretakers may be hourly employees without advanced degrees. Legislation may be an answer, making sexual contact between a caretaker and person with developmental disabilities, as clearly impermissible as it is for a psychiatrist and his patient. In the meantime, as I have reported on this site before, juries have been appropriately punishing of perpetrators, in their verdicts on behalf of developmentally disabled people abused by their caretakers.

Originally posted at InjuryBoard by Ken Margolin

Choosing a Nursing Home

Ken Margolin — Tue, 06 Mar 2007 07:00:00 GMT

Cases of nursing home abuse are profoundly depressing. The saving thought for families forced to move a loved one from their home is that they will receive the care and the protection that they need in the home. Nursing home neglect or abuse is a betrayal of trust. Those facing the necessity of placing a family member in a nursing home can take some comfort from the realization that competent and compassionate care is the daily norm in a quality nursing home. The odds of a loved one receiving good care can be improved with careful selection.

Notwithstanding the reality that choices may be narrowed by availability, geographical location, and finances, some research before a move can increase the odds of making the right choice. Contact should be made to the Department of Public Health to obtain any information they may have about complaints or deficiencies in a particular home. Be sure to understand the range of services offered as well as the types of residents served. Find out as well if residents with similar levels of independence and mental acuity are placed together on the same floor, or if a resident retaining all or most of their mental abilities will be living in proximity with people too disabled to carry on a conversation. See if the nursing home administrator can provide you with references of families who have had loved ones in the home.

Of critical importance is a visit. While making your visit, ask to see as much of the home as possible. Be alert with all your senses to get a feel of what your family member will experience. Are floors and walls clean? Do staff seem involved with patients and of reasonably high morale, or do they appear to be going through the motions? Is the food of reasonable quality? While temporary odors in a given location may be inevitable if one or more patients are incontinent, bad odor should not pervade the home. Similarly, an overwhelming scent of deodorizer may indicate that malodors are being covered up rather than cleaned. An excellent investment, if it can be afforded, is to hire a specialist in choosing a nursing home compatible with the family member to live there. The best of these specialists are intimately familiar with the nursing homes in their area, and see it as their mission to insure that none of their clients goes to a bad home and that the placement they facilitate is the best one feasible.

Originally posted at InjuryBoard by Ken Margolin