Boston Personal Injury Lawyer - Nursing Home Negligence

Charitable Immunity is Unjust

Ken Margolin — Wed, 19 Sep 2007 07:00:00 GMT

Protecting charitable organizations from liability for the negligence of the organization or its employees, may sound noble, but is in fact, unfair. The immunity doesn't really accomplish its goals, and insures that employees of an organization involved in a personal injury lawsuit, will be sued instead of the organization. Here's the way it works in Massachusetts. By statute, M.G.L. c. 231, Â§85K, the liability of non-profit, tax-exempt corporations, for personal injury caused by their negligence, is limited to $20,000. The doctrine never made much sense, since even organizations providing noble services, should be responsible for their actions when they harm others. Now that many "charitable" organizations are economic behemoths, such as major universities and hospitals, with CEOs earning seven figure incomes, the doctrine serves only to harm legitimate plaintiffs and to provide a windfall for the insurance industry. Virtually all viable non-profit organizations carry liability insurance. There is no logical reason why that insurance can't cover the organization as well as its officials and employees, thus protecting the charitable corporation and victims of its corporate negligence.

The charitable immunity doctrine applies only to the organization, not its officials and employees, This guarantees that in a serious personal injury case, the employees will be sued, and the culpable institution will either not be sued or dropped from the case before trial. Juries don't learn of the tort cap, and the risk is too large that they will render a sympathetic defendants' verdict on behalf of the employees and nail the organization, never realizing that only $20,000 can be collected. The doctrine is at its most unjust when there is institutional negligence - for example, inadequate safety policies and procedures - but no readily identifiable, negligent employee. A risk is created that a jury hearing such a case, will let the employee off the hook, all the while wondering why the errant corporation was not made a defendant. Charitable corporations, no less than for-profit corporations, owe a duty of reasonable conduct to the public, and ought to procure sufficient insurance in case their negligence causes an innocent person serious harm. The Massachusetts legislature needs to buck the pressure from the insurance lobby, and abolish the antiquated and unfair doctrine of charitable immunity.

Originally posted at InjuryBoard by Ken Margolin

Hospital Falls

Ken Margolin — Mon, 17 Sep 2007 15:45:00 GMT

A great deal of attention has been paid lately - rightfully so - to the subject of infections contracted in hospitals. Less focus has been placed on another source of serious and preventable injuries in hospitals - falls. The result of a fall down injury in a hospital may be severe. Patients are ill and often debilitated or disoriented to begin with. If a patient's condition presents any appreciable risk of falling, the hospital has the obligation to assess and document the risk, and to take appropriate precautions.

Fall precautions may take many forms, for example, accompanying the patient, in a geri-chair, to the bathroom, prompt response to patient calls, raised side rails on the bed if no nurse is in immediate attendance, doctor's orders that the patient be accompanied by a nurse or aide whenever mobile, even restraints where appropriate. Once a fall down risk is appreciated, the patient's risk assessment must be kept up to date throughout the patient's hospital stay. Hospital falls can result in severe injuries such as broken hips, traumatic brain injury, and other harm inconsistent with the hospital's role as a place of healing.

Originally posted at InjuryBoard by Ken Margolin

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

Failure to Communicate can be Deadly

Ken Margolin — Thu, 12 Jul 2007 09:00:00 GMT

Imagine a plane crash in which the co-pilot knew of another plane on a collision course, but decided not to tell the pilot, figuring he'd get the information on his own. Imagine a firefighter knowing a roof is about to collapse, but failing to warn his colleagues because he thought his colleagues were highly skilled and the signs of impending collapse were obvious. Unthinkable? Of course. Yet, doctors treating the same patient for the same condition often fail to communicate and claim to be justified in their intentional withholding of vital information from their colleagues.

The internist refers a patient with deteriorating neurological symptoms to a neurologist, but neglects to convey the information of his patient's decline because - hey - she's the expert. When the expert fails to obtain the information that the internist possessed, on her own, the patient suffers. An anesthesiologist and surgeon fail to communicate prior to surgery, resulting in an operating room disaster because neither know exactly what the other one was doing. There is no excuse for such medical failures of communication. Too many doctors see their roles as reflecting the line from Tom Lehrer's song Wernher Von Braun, "... it's not my department ...." Communication of vital patient information to other treating physicians is every doctor's department. The cost in time and money is near zero. The risk of neglect is the patient's life and health.

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

Jury System Still Safe in Massachusetts

Ken Margolin — Tue, 10 Apr 2007 14:45:00 GMT

I got a momentary scare the other day, when I read of a Supreme Judicial Court decision upholding a binding arbitration contract between a nursing home and the son of an elderly parent admitted to the home. Binding arbitration agreements require that if there is a dispute between the parties, resort to the courts and juries is waived in favor of submission to a professional arbitrator. The case is Miller v. Cotter, 448 Mass. 671 (2007), decided just last week. The SJC ruled that even though there were non-nursing home employee defendants not subject to the arbitration agreement, the case against the home and its employees had to go to arbitration. In so ruling, the SJC reversed the decision of the Superior Court judge, who ruled that it would be inefficient and inequitable to force the plaintiff to pursue the case in two separate forums.

On reading just the summary of Miller v. Cotter, I wondered whether there would be a rush by hospitals and doctors to require binding arbitration agreements, as a pre-requisite to admission or service, thus destroying the jury system in cases of medical malpractice. Review of the entire decision, though, showed it to be relatively, narrowly tailored to the facts of the case. The arbitration agreement in question, was not a prerequisite to admission. And of great significance to negating a claim of unconscionability, the contract gave the patient's son, the unilateral right to revoke the arbitration agreement within 30 days of its signing.

Arbitration can be had much more quickly and cheaply than a jury trial. There is a perception in the plaintiffs' bar, however, that arbitrators are more defense-oriented than jurors, and that arbitration awards are stingier than jury verdicts. Plaintiffs and defendants alike would benefit from sound statistical analysis to test that perception. Despite dicta by the SJC, noting that arbitration is a preferred means of dispute-resolution, the jury system remains intact for now. The real test will come with a case challenging the validity of an arbitration agreement, made a precondition to admission into a healthcare facility, or treatment by a medical professional.

Originally posted at InjuryBoard by Ken Margolin