January 28, 2015

Plaintiff Awarded Judgment in Legal Malpractice Action After Attorney Fails to Timely Commence Pressure Ulcer Suit

A March, 2013 judgment in Suffolk County Supreme Court awarded a plaintiff roughly $463,000.00 in a legal malpractice action. The case was brought when the plaintiff's attorney failed to timely commence an action for negligence, medical malpractice, and violations of NY Public Health Law section 2801-d against a defendant nursing home.

ambulance1.jpgThe underlying cause of action involved the development and progression of a sacral pressure ulcer at the defendant facility. Plaintiff, as Administratrix of the Estate of the decedent, retained an attorney to investigate and pursue an action for pain and suffering stemming from the deterioration of the pressure ulcers at the Nassau County nursing home. Plaintiff's attorney missed the statute of limitations, failing to commence the action in a timely manner. This failure led the plaintiff to pursue a cause of action for legal malpractice against her attorney.

A cause of action for legal malpractice consists of two elements. First, the plaintiff must allege that the attorney failed to exercise ordinary, reasonable skill and knowledge commonly possessed by a member of the legal profession. Second, the plaintiff must allege that the breach of this duty proximately caused actual and ascertainable damages. In other words, the plaintiff must show that he or she would have prevailed in the underlying action but for the attorney's negligence.

In this action, the Court found that the plaintiff would have prevailed against the facility on her Public Health Law claim. As this blog has discussed previously, a resident entering a facility must receive proper treatment to promote healing of pressure sores, prevent infection, and prevent further sores from developing. Here, plaintiff's decedent entered the facility with a Stage I-II pressure ulcer that deteriorated to a Stage IV. She ultimately died of sepsis, presumably from an infection stemming from the pressure ulcer. The Court found that the nursing home's violation of Public Health Law, as well as state and federal regulations, would have led to plaintiff prevailing in the underlying action. Thus, because her attorney failed to timely file the action, plaintiff suffered damages recoverable under the theory of legal malpractice.

In determining damages, the Court must award an amount that does not materially deviate from what would be considered reasonable compensation under the circumstances given the plaintiff's injuries. Through an examination of jury verdicts of cases featuring similar injuries to those suffered by plaintiff's decedent, the Court arrived at the final judgment of approximately $463,000.00.

A key takeaway from this judgment is the importance of statutes of limitations. Neither lack of knowledge nor mistake is a defense for missing a statute. Accordingly, if you feel that a loved one has suffered an injury due to the negligence or mistreatment of a hospital or long term care facility, contact the experienced nursing home attorneys at Gallivan and Gallivan today to preserve your rights.

January 13, 2015

Second Department Finds Potentially Inflammatory Language Relevant to Matter in Brooklyn Nursing Home Action

A case recently decided by the Supreme Court Appellate Division, Second Department, shines some light on the extent that a nursing home defendant will go in order to have language excised from a lawsuit that is not to its liking. The Appellate Court denied them the opportunity to strike the language, but it is a case worth reviewing a bit more detail.

The case at issue is Irving v. Four Seasons Nursing & Rehabilitation Center, 2014 NY Slip Op 07330, a Kings County action containing some serious allegations against a Brooklyn nursing home and adult day care center. Specifically the complaint - filed in 2009 and currently ongoing - alleges claims of personal injury, violations of resident rights, intentional infliction of emotional distress, and medical malpractice.

The language that Four Seasons argued was inflammatory and prejudicial was contained in the bill of particulars. A bill of particulars, served during discovery after a demand is made by either side, adds detail to a complaint, which often contains the barest facts and legal theories underlying the action. In the bill of particulars, the party provides more specific information demanded by its adversary, and supplies more specific information regarding the facts and underlying theories (in a plaintiff's bill of particulars), or the facts and more specific theories of defense (in a defendant's bill of particulars). Here, the plaintiff's bill of particulars specifically alleged that Four Seasons had engaged in "recklessness/reckless, intentional and malicious conduct, gross negligence" and "blatantly illegal conduct/illegal conduct."

The motion by Four Seasons was not trying to get an actual cause of action - which could subject them to liability and damages - dismissed; it was only trying to have certain language struck. Inflammatory language in a complaint can be prejudicial, and that's why the law allows for motions like the one Four Seasons made. But the law also specifies that such language can only be struck when it has no significant relationship to the underlying complaint. An easy example would be accusing someone of tax fraud during a breach of contract lawsuit - one has nothing to do with the other, and such an accusation is inflammatory and potentially prejudicial.

The lower court sided with Four Seasons - the judge ordered the language to be removed. At the appellate level, however, the Court reversed, deciding that the language was related to very serious and grave allegations at the heart of the complaint.

December 23, 2014

Summary Judgment Motion for Queens Nursing Home Denied by Supreme Court

In February, the Supreme Court, Queens County denied the summary judgment motion of defendant Flushing Manor Care Center in an action claiming violations of the New York Public Health Law. The Court, in its opinion, noted that the differing expert affidavits of plaintiff and defendant precluded a finding of summary judgment.

wheelchair6.jpgThe plaintiff was admitted to the defendant nursing home following a fall at a Queens assisted living facility and a subsequent hospitalization. She had been experiencing brief fainting spells and losses of consciousness, known as syncope, and had pain in her hip upon her admission to the nursing home, but an x-ray taken at the hospital showed no fracture from the current fall.

Because of her syncope and the recent fall, the facility determined that the plaintiff was at a high risk for falls. Flushing Manor implemented a care plan with numerous interventions to prevent falling, including side rails for bed and a locked bed and wheelchair. Additional interventions were ordered when it was noted that the plaintiff was also incontinent and unsteady on her feet. Despite the interventions, one night the plaintiff fell while attempting to stand up from her wheelchair. The on-duty nurse testified that she heard the chair alarm, saw the plaintiff attempting to stand, and rushed to her aid, but was unable to completely stop the fall. The plaintiff was taken to the hospital, where a right hip fracture was diagnosed.

The nursing home moved for summary judgment, submitting with the motion an expert affirmation from a physician stating that it (the facility) did not depart from accepted standards of care. Plaintiff's opposing expert raised a triable issue of fact regarding the nursing home's deviation from accepted standards. The nursing expert claimed that the home was inadequately staffed at the time of the fall, and that the interventions implemented were insufficient to prevent falls. The Court agreed with the plaintiff that an issue of fact did exist to present to a jury. As such, because the issues before the Court were not merely of law, it would have been inappropriate to grant the nursing home's motion for summary judgment.

Buchanan v. Flushing Manor Nursing Home, Inc., 2014 NY Slip Op 30401

December 22, 2014

Brooklyn Nursing Home Cited for Numerous Deficiencies in March, 2014 Department of Health Report

Brooklyn nursing home Keser Nursing and Rehabilitation Center received deficient ratings in ten standard health inspection categories during a March, 2014 inspection conducted by the New York State Department of Health. Among the deficiencies reported by the DOH were failure to establish an infection control program, failure to inform of accidents and/or significant changes in resident status, and failure to ensure that a resident's nutritional status remains unchanged unless unavoidable.

A nursing home must establish and maintain an infection control program to minimize and help prevent the spread of infection. During its inspection of Keser, the DOH encountered several situations for which it cited the facility. First, a resident's nasal tubing was not properly secured behind his ears, but rather allowed to hang in such a way that it was touching the floor. Inspectors also noted several instances in which garbage pails and trash bins were left uncovered in common eating areas, subjecting eating residents to a potential spread of infection from the refuse.

scale4.jpgThe remaining two deficiencies referenced above involve a single resident, a sixty year old male with multiple underlying conditions including diabetes, hypertension, and epilepsy. Per the report, the resident also displayed "severely impaired cognitive skills for daily decision making." During routine weight checks, it was noted that the man had lost eighteen pounds, nearly eleven percent of his total body weight, in the several months prior to late October, 2013. The dietary note for this resident also documented conflicting information, at one time stating that the patient's appetite was "fair to good," yet at another stating that he was eating less than 75% of his meals. Despite this weight loss and the differing information in the notes, no new interventions were ordered for the resident. The physician's notes from the relevant time period list the resident's weight as steady at 170 pounds, again in conflict with the weight records. During an interview with the Department of Health regarding this patient, the current physician informed investigators that the doctor who had written the notes for August, September, and October 2013 was no longer employed by the nursing home.

The remaining deficiencies detailed by the Department of Health in this March inspection report include, among others, failure to provide services by qualified persons in accordance with each resident's care plan, failure to equip corridors with firmly secured handrails, and failure to promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality. To read more, or to access the full report, visit the Department of Health website here.

December 22, 2014

Queens Nursing Home Fails to Provide Proper Treatment to Prevent/Heal Pressure Ulcers

In January of this year, Silvercrest, a Jamaica, Queens nursing home, was cited by the Department of Health for failure to prevent and/or heal pressure ulcers. The survey and the resulting deficiency report involved one resident, a 77 year-old female who was admitted to the nursing home with several diagnoses, among them a sacral pressure sore.

hospital bed3.jpgAt the time of the incident, the female resident had been admitted to Silvercrest for approximately two and a half years. She had a previously healed pressure ulcer to the same area, the sacrum, at which the subsequent wound developed. After the original sore healed, the facility put in place numerous interventions designed to prevent the development of additional wounds, including pressure relieving mattresses and a turning and positioning program. Despite these proper interventions being in place, a pressure ulcer recurred to the resident's lower back. An MD assessment noted that the wound was Stage III. After the examination, the physician ordered treatment for the pressure sore during every shift. Treatment was to include cleansing and dressing the ulcer, applying ointment, and securing the dressing.

For the next six shifts immediately following the physician's order, treatment was not provided to the resident. The Treatment Administration Record listed the reasons for the lack of treatment as "awaiting delivery" and "delivery pending." During a Department of Health interview with a Licensed Practical Nurse who was on shift for the missing treatments, the LPN stated that the Nurse Practitioner had entered the order incorrectly into the facility computer, causing a delay in the procurement of the medication. Because of poor record keeping, there is no documentation of what, if any, treatment was provided to the patient during the six shifts for which the medication was not available.

New York State nursing homes are governed by both state and federal regulations. These regulations dictate the type of care that nursing home residents must receive. Specific to pressure ulcers, the regulations state that a resident who enters a facility without pressure ulcers must not be allowed to develop pressure ulcers unless his or her clinical condition demonstrates that such development is unavoidable. Additionally, a resident having pressure sores must receive necessary treatment to promote healing, prevent infection, and prevent new sores from developing.

In this case, Silvercrest failed to provide the proper treatment to its resident. Physician's orders must be followed. Failing to treat a pressure ulcer for six shifts after a physician's orders is a violation of the resident's rights, and can have dire consequences. Ideally, this citation by the Department of Health will cause Silvercrest to be more diligent in its future treatment of its residents presenting signs and symptoms of pressure ulcers.

December 1, 2014

Utica Nursing Home Nurse's Aide Charged with Sexual Abuse of Elderly Resident

New York State Attorney General Eric T. Schneiderman recently announced that John Tamba, a 48 year old CNA from Utica, NY was indicted in October on nine counts of abusing a female patient. Tamba worked at the Focus Rehabilitation and Nursing Center at Utica, located at 1445 Kemble St, Utica, NY, and is being held at the Oneida County Jail without bail. Tamba was charged with three counts each of sexual abuse in the first degree, endangering the welfare of a vulnerable elderly person or an incompetent or physically disabled person in the second degree, and willful violation of health laws. If he is convicted on all nine counts he faces up to 21 years in prison.

It is alleged that Tamba engaged in forcible sexual contact with a physically disabled female patient while she was in his care at the nursing home. Tamba was charged by the Medicaid Fraud Unit, which is a part of the Attorney General's office that is charged with protecting the elderly and disabled from fraud and abuse perpetrated by nursing homes, as well as investigating and prosecuting Medicaid fraud. The Attorney General has repeatedly said how strongly he feels about protecting nursing and long term care patients as they are in a very vulnerable situation. He is quoted in the press release as saying that "those who are charged with protecting the health of the most vulnerable New Yorkers must do that - care for them and not hurt them," and that his office "will go after those who break the law and seek justice for those who cannot defend themselves."

The indictments against Tamba come from events which happened while Tamba was working at the Focus Rehabilitation and Nursing Center. The upstate New York nursing home offers a range of services to seniors including, independent living apartments, assisted living services, an adult day care program, short or long term rehabilitation, or specialized care for people with Alzheimer's or dementia. However, the facility also has an extensive record of complaints with the Department of Health. The Department of Health is in charge of regulating and inspecting nursing homes in New York. It publishes information about nursing homes including a range of quality measures, statistics on inspections and complaints and enforcement measures taken by the Department. While nothing in the Attorney General's press release indicates that Tamba's actions were caused by the nursing home, it is always important for patients and their families to research nursing and long term care centers before engaging their services.

In the reporting period of November 2010 through October 2014, Focus Rehabilitation and Nursing Center had 67 Standard Health Deficiencies which compares unfavorably to a state wide average of 23. A Standard Health Deficiency is a measure of the quality of care provided by the facility. Nursing homes are routinely inspected by the Department of Health. Trained inspectors, using established protocols, will interview a sample of residents and family members about their life within the nursing home The inspectors also interview caregivers and administrative staff. The home had 15 Life Safety Code Deficiencies, four more than the state average of 11. Life Safety Code Deficiencies are violations of the fire safety regulations set by the National Fire Protection Agency (NFPA). When such violations are discovered the facility must submit a plan of correction to the agency.

Patients and family members who would like more information than is contained on the Department of Health's website may email nhinfo@health.state.ny.us or write to New York State Department of Health, Division of Residential Services, 875 Central Ave.,Albany, NY 12206 and request a copy of the survey which will have more detail into the citations given to that facility. When writing please include the name of the nursing home, Permanent Facility Identifier, and survey date as they appear on the report.
Abuse of patients in long term care facilities and nursing homes is a serious problem and while not all problems can be avoided with due diligence, the Department of Health's reports are a good place to start in researching a facility.

November 24, 2014

Nurse Charged With Accidently Giving a Patient Morphine and Falsifying Medical Records to Cover Up Her Mistake

The New York State Attorney General has announced the unsealing of a felony indictment against Vicki Price charging her with a range of crimes in connection with the accidental overdose of a patient at the nursing home where Price was a nurse. When an indictment is sealed it is available to the public. Indictements may be sealed for various reasons, for example after the person named in the indictment is arrested by the police or is has been notified of the charges if they were not already known to them. Price, a licensed practical nurse, was employed at Bayview Nursing and Rehabilitation Center, at 1 Long Beach Road in Island Park, New York, when a forty six year old resident of the center fell ill from an overdose of morphine. It is alleged that Price administered the patient morphine instead of the prescribed muscle relaxant and then falsified the patient's medical records to cover up her mistake. Price did not confess to the mix up even when the patient was transferred to Long Beach Medical Center after losing consciousness.

The patient who suffers from spina bifida was treated with Narcan, a drug used to counter the effects of an opiate overdose. The patient spent five days at Long Beach Medical Center before being released. It is unclear if Price's failure to confess to the mistake led to the patient not being treated promptly or caused the patient to remain in the hospital longer than it would otherwise. Price has been charged with one count of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person, in the second degree, which is a class E felony; one count of endangering the welfare of an incompetent or physically disabled person, which is a class A misdemeanor; one count of wilful violation of the public health laws, which is an unclassified misdemeanor; and two counts of falsifying business records in the first degree, which is a class E felony. Medical personnel falsifying business records are particularly dangerous because it can lead to patients being given medically inappropriate treatment or having proper treatment delayed. In a case like this where the wrong medicine is given out proper treatment may be delayed while medical staff figure out what was given if no or a false entry is made into the patient's medical record.

Price faces a total of between one and one half years and four years in jail if she is convicted of all counts. She is no longer an employee at the Bayview Nursing and Rehabilitation Center. The case is being prosecuted by the Medicaid Fraud Control Unit, an arm of the Attorney General's Office tasked with combating large scale Medicaid fraud as well as cracking down on abuse in nursing homes and long term care facilities. The Attorney General has put his commitment to protecting the often venerable population of nursing and long term care homes in strong terms stating that "my office will pursue justice when our basic tenets of care are not met. There is one set of rules for all caregivers, and those rules must be enforced."

The Department of Health also offers detailed information on inspection and citations given to facilities. It is an excellent place to get information about a nursing or long term care home. The information can be found online at the Department of Health's website. The Bayview Nursing and Rehabilitation Center where Price worked is now called the South Point Plaza Nursing and Rehabilitation Center. It has a higher than average number of complaints. During the reporting period from November 2010 to October 2014 the Department of health received 76 complaints about the facility. This was higher than the average number of complaints received per one hundred beds by other facilities in New York State. The facility has also been fined three times since 2004 in amounts from 2000 to 10000 dollars.

November 24, 2014

Nurse Accused of Switching Oxycodone For Allergy Pills in Ulster Care Home

In September the Attorney General Eric T. Schneiderman announced that Amy DeAngelis-Martin a licensed practical nurse was arrested on charges including Endangering the Welfare of an Incompetent or Physically Disabled Person in the First Degree. DeAngelis-Martin was employed as a nurse at the Northeast Center for Special Care in the Town of Ulster, New York. She is accused of stealing oxycodone pills, an often abused painkiller, from one of her patients and replacing them with similar looking over the counter allergy pills. Replacing prescription painkillers with relatively harmless over the counter medication is a common way for medical staff to steal pills from patients.

The fifty two year old patient in question was paralyzed from the waist down due to trauma to the head and neck and was taking the medication for pain.
Nurses and other medical staff stealing or diverting prescription pain medication is a major problem in nursing homes as it can lead to patients not getting the care and pain management they need as well as potential drug interactions or complications arising from the patient taking undocumented medication. It also poses a problem in that medical staff who are abusing narcotics may not be capable of providing care to those in need. DeAngelis-Martin was charged with two felonies and two misdemeanors. She was charged with endangering the welfare of an incompetent or physically disabled person in the first degree which is a class E felony and one count of falsifying business records in the first degree which is also a class E felony as well as one count of criminal possession of a controlled substance in the seventh degree a class A misdemeanor and one count of petit larceny also a class A misdemeanor. If she is convicted the charges carry between one to four years in jail.

The Attorney General through his Medicaid Fraud Control Unit investigates abuse and neglect by nursing and other health care facilities. Schneiderman has said that "Staff at nursing facilities are entrusted to care for those who are unable to care for themselves, including administering appropriate medication," and that his "office will prosecute individuals that violate that trust and prey upon the vulnerable patients. The allegations in this case serve as a strong reminder of the dangerous and addictive qualities of opioid medications -- and why they must be closely monitored." Those looking into care for themselves or their loved ones should be aware of the potential for abuse and neglect and carefully research facilities.

The Northeast Center for Special Care, also known as the Northeast Center for Special Care, in Ulster County New York specializes in traumatic brain injuries and treating other patients with traumatic injuries. Information about the facilities record can be found on the website of the Department of Health, which is tasked with inspecting and taking complaints about nursing homes and care facilities, shows that the center had a slightly higher than average number of complaints. It received 59.4 complaints per 100 beds during the reporting period which lasted from October 2010 until September of 2014.

The average number of complaints per 100 beds in New York state was 35.7. Otherwise the home had only one quality of care citation given during an onsite inspection working out to well under the statewide average. The fact the care homes record is better than average in many ways only highlights how important it is for there to be oversight of nursing and care home personnel. While families and patients may do their due diligence in researching facilities this type of conduct, which DeAngelis-Martin is alleged to have been involved in, can happen even in facilities with good records. More information about the facility, and all other nursing and care homes in New York State, can be found on the Department of Health's website which lists a number of statistics on inspections and complaints as well as standard of care metrics.

November 21, 2014

Two Certified Nurse's Aides at the Terrace View Long Term Care Facility in Buffalo Charged with Abuse and Neglect

In September the NYS Attorney General's office announced that two certified nurse's aides at the Erie County Medical Center Skilled Nursing Facility in Buffalo, which has recently changed its name to the Terrace View Long Term Care Facility, have been charged with neglecting an elderly resident of the facility. Donna Laury and Nakeia Green were charged with a range of misdemeanor and felony counts in Buffalo County Court. The Attorney General Eric T. Schneiderman has said that because "nursing home residents are among our state's most vulnerable citizens, and the neglect that the victim in this case suffered is reprehensible... my office will not tolerate anyone being neglected by those responsible for their care, and we will use every tool in our arsenal, including hidden cameras, to ensure that those most in need of help are safely cared for and treated with respect and dignity." The Attorney General's office through the Medicaid Fraud Control Unit is tasked with looking into large scale Medicaid fraud including overbilling, kickbacks, substandard drugs and medical equipment. It also investigates and prosecutes abuse and neglect cases in nursing homes and other health care facilities.

The Terrace View Long Term Care Facility is a 390 bed facility that is part of the ECMC Health Campus on Grider Street in Buffalo. It totes itself as "designed to be patient-centered with a household or neighborhood design that focuses on the latest care delivery models", but the facilities record with the Department of Health points to more systemic problems within its system. The Department of Health, which keeps detailed records online about nursing home complains and conditions, has received 247 complaints about the Terrace View Long Term Care Facility in the reporting period lasting from October, 2010 until September of 2014. This is a rate of 125.3 complaints per occupied beds which compares to a statewide average of 35.7 complaints per 100 beds. In addition to the citations the facility has had 13 citations following onsite inspections during the reporting period, a number approximately three times the average in the state.

The facility has also been fined several times for quality of care complaints with fines ranging from two thousand to ten thousand dollars and its parent company Erie County Medical Center was involved in a large settlement for Medicaid overbilling. Further information about the facilities inspection record and complaint record may be found on the Department of Health's website where the department maintains information on all the nursing homes in New York State.

The employees were charged with falsifying business records in the first degree which is a class E felony, endangering the welfare of an incompetent or physically disabled person which is a class A misdemeanor, and willful violation of public health laws which is an unclassified misdemeanor. The most serious of these charges, falsifying business records in the first degree carries a penalty of up to four years in jail. It is alleged that the employees failed, in violation of the patient's personal care plan, to use two people while performing incontinence care and failing to use a mechanical lift to transfer the resident. It is also alleged that the employees falsified the patient's medical records in order to avoid detection.

The patient, who was not named in the Attorney General's press release and is referred to in court papers as M.H. to protect her privacy, is a 79 year old woman who suffers from Alzheimer's disease and dementia and is unable to walk. She is totally dependent on the care of the nursing home staff driving home the need for laws, regulation and oversight for these vulnerable members of the community who may not be able to advocate for themselves. Families and patients looking into nursing homes should be aware of the inspection and complaint record of the facility they are considering as neglect and abuse is a problem in many facilities in New York.

October 15, 2014

Rye Nursing Home Receives Deficiency for Pressure Sore Care

The Osborn, a Westchester nursing home located in Rye, received a citation by the Department of Health in February, 2014 for failure to provide proper treatment to a resident with a pressure ulcer. Per federal regulations, a facility must provide necessary treatment to a resident who enters with a pressure ulcer. In the case detailed in the Department of Health citation, the resident entered The Osborn with a Stage I pressure ulcer that deteriorated to a Stage II shortly after admission.

The resident was one hundred years old upon her admission to the facility. At her initial examination, it was noted that she already had a Stage I pressure ulcer located on the right heel. The existence of a pressure ulcer, obviously, puts a resident at risk for the development of new ulcers and the deterioration of existing ulcers. Beyond this, the resident displayed several risk factors for skin breakdown, including a recently fractured and surgically repaired hip (limiting her mobility), impaired cognition, and the need of assistance with mobility.

Despite the known presence of the heel ulcer, the records of the nursing home indicate that the heel was not monitored between the resident's admission and an ulcer flow sheet completed eleven days later. By the time the first post-admission flow sheet was recorded, the pressure sore on the heel had deteriorated from Stage I to Stage II.

The conduct of the nursing home in the case of this particular resident violated both federal and state regulations. 10 NYCRR 415.12.(c)(2) (The New York Administrative Code) states that a resident with pressure ulcers receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. Clearly the plan of care administered by The Osborn did not promote the healing of this resident's bed sore. Fortunately, upon her discharge, the wound was in the process of healing. This does not excuse the fact that the facility allowed its condition to worsen. The full report, found here, does not mention whether the nursing home was issued a fine by the Department of Health.

The development and/or deterioration of a pressure ulcer or bed sore can lead to dire consequences for an elderly nursing home resident. Often a wound such as these is the precursor to infection, further cognitive impairment, or even death. If your loved one has suffered from a pressure ulcer or bed sore due to nursing home neglect, contact the attorneys at Gallivan and Gallivan today for a consultation.

September 23, 2014

Discussing the Legality of Nursing Home Surveillance

It is difficult to ignore the continuous flow of headlines regarding nursing home abuse. It has become a prevalent issue across the U.S. However, imagine the number of cases that go unreported. Many times incidents of abuse and neglect are brought to light because of video surveillance. We have seen an increase in the number of abusive acts caught on tape and shared through the help of media and news outlets. After all, video surveillance technology is readily available ranging from nanny cams, to spy cams, to traditional video cameras.

How has the use of video cameras impacted the cases of nursing abuse? How does it impact a person's right to privacy? The use of video surveillance has sparked some debate on whether it is legal to use them in nursing homes.

Real World, Real Results

surveillance.jpgIn February of this year, a surveillance video caught a nurse by the name of Rosemarie Brooks, attacking a 73-year-old resident at the Bronx Park Rehabilitation and Nursing Center. The resident sustained head injuries as a result of the incident.

This April, with the help of video surveillance footage, the New York State Attorney General was able to apprehend and charge eight nurses and nine nursing assistants with felony and misdemeanor counts.

A non-ambulatory and bedridden 56-year-old resident of HighPointe nursing home suffered continuous neglect at the hands of the 17 staff members. They failed to check on him, give him liquids, and perform incontinence care repeatedly and this was all caught on a hidden camera.

The nurses and nursing assistants were consequently charged with first degree falsifying business records, first degree endangering the welfare of an incompetent or physically disabled person, and willful violation of public health laws.

Most recently in August, a home health aide from Personal-Touch Home Care was caught on tape abusing a 78-year-old Queens, NY stroke victim. The aide continuously slapped the paralyzed man's arm, jerked his head, and force-fed him.

With the flood of nursing home abuse and neglect cases, Attorney General Eric Schneiderman states, ""My office will continue to hold nursing home employees to the highest responsibility to ensure that New York's most vulnerable receive the best and most compassionate care possible."

The Law on Surveillance

Some question whether it is legal for nursing homes or families to use video surveillance in the facility and patient rooms. As it stands, there are no federal laws either prohibiting or specifically authorizing the use of video monitoring in a nursing home. The Federal Wiretapping Law governs the use of surveillance devices that record audio communications but does not regulate silent video surveillance.

While some states may begin regulating the use of hidden cameras in nursing facilities, to date New York does not have a law in place to regulate the use of hidden cameras. The majority view holds that the benefit of keeping nursing home residents safe and free from neglect outweighs the need for privacy.

Invasion of Privacy

To balance safety needs and the right to privacy, some nursing homes require that families post a sign notifying room visitors and staff that there are cameras present. In the case of nursing homes, some post signs indicating that video surveillance is used in the facility. Although some nursing homes have enforced these measures in some states, this is not a requirement and the majority of facilities have yet to implement this type of notification.

Would You Like to File A Complain Against A Nursing Home?

The New York State Department of Health, Nursing Home and ICF/MR Surveillance is responsible for investigating complaints and incidents for nursing homes in New York State. You can submit a complaint online, via email or by mail. You can also call the Nursing Home Complaint hotline at 1-888-201-4563.

Contact Us

Nursing home and elder abuse is a serious matter. If you suspect that your loved one is the victim of abuse or neglect, you should file a complaint and contact an attorney immediately. If you require further assistance or legal help regarding nursing home abuse or neglect, contact our New York office today.

For more news and information on nursing home surveillance, check the following sites:

NY Times, Watchful Eye in Nursing Homes, Jan Hoffman, November 18, 2013

CBS NY, Bronx Nurse's Aide Accused Of Abusing Elderly Alzheimer's Patient, February 15, 2013

WIVB 4, Hidden camera leads to charges against 17 workers at nursing home,

September 22, 2014

Tips for Choosing the Right Nursing Home for Your Elderly Loved One

Selecting a nursing home for your loved one is a difficult decision. It is not easy to trust someone else or a stranger to meet the needs of your mother, father, spouse, or family member. Here is a list of factors you should consider when picking the right living arrangement and nursing home for your loved one.

1. Assess the Needs of Your Loved One

oldman.jpgBefore choosing a nursing home, it is best to understand the needs of the elderly person. Take into consideration your loved one's medical conditions and the level of care required. You don't want to assume that the nursing home or living facility has the right services, staff, medical equipment, or expertise to care for the individual. You'll want to make sure that the nursing home has the required necessities to meet the needs of the person.

2. Conduct Thorough Research

It's common practice to do research on the places you will stay, whether it's a hotel or neighborhood of a new home you're considering buying. The same holds true for selecting a location where your loved one will live. Before deciding on a nursing facility, you should take the time to conduct thorough research of your options. It is a good idea to see what others are saying about the nursing home through reviews and ratings. This is a decision that you should not take lightly, as the individual's health, safety, and quality of life depends on it. Take the time to investigate the nursing homes. Many states have assessments and ratings that are available to the public by request. This will give you the opportunity to see if there are any code violations as well.

Here are some questions to consider:
• What facility processes are in place for preventing the spread of illness and infection?
• What is the frequency of hospital-acquired infections?
• What fall prevention measures are in place?
• What is the falling rate of the facility?
• Has the nursing home been reported for violations? If so, how many and which ones?
• Does the facility have a poor reputation in the public and among residents?
Don't be afraid to ask questions about anything that is important to you. You want to be fully knowledgeable about the living facility, their reputation, quality of care, and competency level.

3. Get Recommendations

There are multiple ways to find ratings and reviews, but you can also get recommendations from family, friends, and co-workers. They are a great source for feedback, referrals, and insight. If they've had a positive and/or satisfactory experience, it's more likely that your loved one will experience the same. On the other hand, if they pinpoint areas of concern or share negative experiences, you'll want to investigate the nursing home more closely or remove the option from your list.

4. Schedule A Visit

Once you have a list of possible nursing homes, schedule a visit. Do not move the individual into a facility until you have seen it first-hand. A nursing home can look one way on a website, marketing material, or over the phone but be a completely different experience once you arrive at the door. Take the time to inspect the premises, speak to the staff, ask questions, talk to current residents, and get a real sense of the environment to make sure it is the best choice for the individual.

5. Do a Final Assessment of the Facility

While you are there at the nursing home, closely observe everything you see. Be careful not to overlook important factors that will play a role in your final decision.

Take a look at the following:
• Cleanliness of the indoor and outdoor spaces
• Activities program and/or schedule
• Staff friendliness
Meal options
• Safety measures

By performing detailed research and touring the nursing home community, you'll have a good sense of whether this is the right place for your elderly loved one. This will ultimately lead to an educated decision. Remember, the safety, medical needs, quality of care, and comfort of your loved one is the most important when choosing a living environment for them.

More information on choosing the right nursing home for your loved one can be found on the Medicare website, as well as A Place for Mom.

September 22, 2014

The Importance of Having a Board Certified Physician

Approximately 90% of practicing physicians in the U.S. are board-certified. While this is a fairly high percentage, it still shows that a number of doctors practicing in the U.S. without board certification. Receiving medical care from a qualified and competent physician is important when it comes to your healthcare. Take a look at the following information to understand what board certification means and why it is so important.

What is Medical Board Certification?

A doctor must demonstrate and meet a level of competency in the field of medicine. A medical board is an organization that has a set of minimum requirements that must be met to gain membership. By gaining membership, doctors achieve a level of competency that is respected among colleagues and patients. On the other hand, non-certified doctors are, more likely than not, deemed as less competent due to their inability or unwillingness to meet the minimum membership requirements.

When reviewing board certification standards and the status of your doctor, start your search with these medical boards:

• American Board of Medical Specialties (ABMS)
• American Board of Physician Specialties (ABPS)
• American Osteopathic Association(AOA)

If your doctor is not certified by one of these more prominent medical boards, then check the doctor's website to see if they mention their board certification. Another option is to look at the doctor's affiliated hospital or practice to search for a board certification statement.

Difference Between Licensed and Board-Certified

Licensed and board-certified are two terms that can cause great confusion if you are a patient. You'll want to understand the distinction between the two because licensed and board-certified are not equal. Doctors must be licensed to practice medicine in the state of New York. Licensing requires that doctors be of good moral character, at least 21 years of age, and meet certain educational, exam, and experience requirements. If you are a practicing doctor in New York, then you are licensed. Compared to the board certification process and requirements, the licensing requirements are not as stringent. Board certified doctors go through rigorous training and exams to gain expertise and certification in specialized fields such as oncology, pain management, anesthesiology, etc.

Here's a simplified breakdown:

• A medical license means the doctor is an MD or DO, passed the 3 USMLE examinations, underwent a 1-3 year residency, and was given a state medical license.

• Board Certification means completion of ABMS, ABPS, or AOA specialty training and examination in addition to the medical license requirements.

Why is Board Certification Important?

Once a doctor is board-certified, his or her skills, knowledge, and expertise in medicine meet the gold standard as it relates to quality of care. When a doctor completes the rigorous training and exams to become a specialist in a particular field of medicine, they have advanced knowledge to provide you a high level of medical care.

Be careful: just because you see certificates and awards on the wall does not mean a doctor is board-certified. If you want to find out if a physician is board-certified, find the website of that specific board and check the credentialing requirements yourself.

How to Verify Board Certification

So what should you look for to verify that a doctor possesses the appropriate certification? The following steps will help you verify a doctor's board-certification status.

• Use websites to check board association
• Go to one of the doctor's rating websites
• Check the medical licensing information in New York (it's public!)
• If you don't see a doctor's name listed for a particular medical board, remember there is a process of certification and then re-certification. The website may not be updated with the new status yet, so call the medical board instead.

To find out if your MD is board-certified, access the American Board of Medical Specialties Web site at www.abms.org or call 1-866-275-2267. Patients who would like to check the certification status of a DO can visit the American Osteopathic Association (AOA) Web site at www.osteopathic.org or call the Member Service Center at 1-800-621-1773, option 1 on the menu.

For more information on board certification, reference the following websites:

What is Medical Board Certification?

License Requirements

September 19, 2014

Rochester Certified Nursing Assistant Arrested for Hitting Elderly Dementia Patient

A Certified Nursing Assistant (CNA) at a Rochester, NY nursing home was arrested last month on charges that he slapped a ninety year old woman in the face. The woman, a resident of the facility at which the CNA works, also suffers from dementia. The CNA, Adrian King, is charged with Endangering the Welfare of a Vulnerable Elderly Person or an Incompetent or Physically Disabled Person in the Second Degree, Wilful Violation of Health Laws, and Harassment in the Second Degree.

There was a witness to the alleged attack. According to this bystander, King slapped the elderly resident hard enough that it both made a loud noise and left a mark on the woman's face. King pleaded guilty to the harassment charge in Rochester City Court. The plea to harassment satisfied all charges that had been pending against King. The Medicaid Fraud Control Unit was involved in the investigation as well.

As he often does in cases involving negligence or abuse of an elderly nursing home resident, Attorney General Eric T. Schneiderman held little back in his comments about the incident. "When a family entrusts a loved one to the care of a nursing home, they expect courtesy, kindness, and professionalism--none of which the resident received in this case, as we allege," said the Attorney General. "Today's charges reflect my office's dedication to protecting our most vulnerable, including the elderly and the disabled, by ensuring that those entrusted to provide care to them will be held accountable when they violate that trust."

Unfortunately, in many cases involving abuse at a nursing home, there is no uninterested witness present to present the facts to an administrator or investigators. Further complicating matters is the fact that often an individual suffering from dementia is unable to voice concerns for his or her own well-being. If you feel that a loved one may be the victim of nursing home abuse or neglect, contact the attorneys at Gallivan and Gallivan today to discuss your legal rights.

September 19, 2014

Attorney General Reaches $2.2M Settlement with New Rochelle Nursing Home after Fraudulent Billing

Eric T. Schneiderman, New York State Attorney General, reached a settlement in August with Glen Island Center for Nursing and Rehabilitation, a Westchester County nursing home, after allegations arose that the facility defrauded Medicaid. The fraudulent billing stemmed from services that in some cases were actually performed by the nursing home, but at inflated prices. State and federal investigators claimed that for a period ranging from 2002 through 2006, Glen Island submitted in excess of sixty thousand fraudulent claims to Medicaid. While occasionally the facility merely excessively billed for services rendered, in a great many others the reimbursements submitted to Medicaid were for services never performed for residents.

After the investigation began, administrators at the facility allegedly forged medical records in an attempt to hide their malfeasance from investigators. After the Medicaid Fraud Control Unit scrubbed these falsified records, two nurses at the facility were convicted for their fraudulent behavior.

This is not the first encounter with the law for Glen Island. In 2011, the administrator of the facility pleaded guilty to grand larceny after conceding that she had falsified records regarding patient care. The administrator received a prison sentence of one to three years in exchange for her plea. Two additional employees of the nursing home pleaded guilty in 2011/2012 to attempted tampering with physical evidence. All three individuals have been excluded from participation in New York's Medicaid program.

Because Medicaid is both a state and federally funded administration, federal prosecutors assisted the Attorney General's office with the investigation. As this blog has chronicled frequently in the past, AG Schneiderman has taken a strong stance when it comes to protecting our state's most vulnerable elderly citizens. The fervor with which his office conducted this investigation makes clear that his office will continue to prosecute to the fullest extent of the law those who attempt to take advantage of the elderly.

New York will receive approximately $1.3 Million of the funds recovered as part of the settlement.

The full press release from the Attorney General's office can be found here.