New York Nursing Home Abuse Lawyer Blog

A report in the New York times suggests a possible link between depression and later in life dementia. The Times report cites a study from the British Journal of Psychiatry. Although the study conductors could not find a direct causative link between depression and dementia, they note that there does appear to be a correlation. The study suggests that older adults suffering from depression could be sixty percent more likely to develop Alzheimer's than adults without depression. Furthermore, the Times reports that this report is the first to link depression with vascular dementia in such a strong manner.

The exact root of the link between depression and dementia is unclear. The researchers, while not suggesting that the development of these mental deficiencies can be avoided, do suggest that early detection and treatment of depression could serve to circumvent the correlation that they noticed. Early treatment also improves quality of life for sufferers of depression, as advances have been made in recent years with the analysis of brain chemistry and the causes and signs of depression.

The article in the Times links to several other studies conducted in recent years which suggest similar ties between depression and dementia/Alzheimer's. To read the full article, go to the New York Times website here.

The Menorah Center for Rehabilitation and Nursing Care located in Brooklyn's Manhattan Beach neighborhood, was hit hard when Hurricane Sandy struck the east coast. In the months that followed, residents were able to find comfort in the visits of Shadow, a therapy dog who has been visiting the residents in the months since the storm. Funding for the visits, originally provided in the form of an anonymous gift of bat mitzvah money, has since run out, and residents of the Menorah Center are facing the prospect of losing these visits from their therapy dog.

It is difficult to quantify the effect that a therapy dog may or may not have on an elderly nursing home resident. At the very least, visits from Shadow, a four year old poodle, have served to lift the spirits of the seniors at the Menorah Center. In the wake of Sandy, with much of the home needing renovations, these visits have provided some relief from an otherwise extremely difficult time for the home and its residents.

According to the NY Daily News, donations may be made directly to the Metropolitan Jewish Health System (MJHS) here, and directed to funding future visits to the Menorah Center from Shadow. The story can be found on the Daily News website, including pictures depicting the obvious effect that Shadow has on the residents of the home.

The Sarasota Herald-Tribune is reporting that Harmony Healthcare Nursing Home, which had its doors shut in 2011, was opened and operated by two men convicted of Medicaid fraud in New York in 1979. The nursing home was closed amid findings of widespread immediate jeopardy to its residents.

An investigation conducted by the newspaper found that criminal background checks were not properly completed for the two owners--possibly because the wives of the two men, Benjamin Gelbtuch and Neil Ellman, were listed as the property owners. Paperwork on file for the home shows the two being intimately involved, however. In fact, Gelbtuch signed for and procured the loan that the partners used to open the property. The Herald-Tribune investigation also found that Gelbtuch and Ellman were running the same type of Medicaid-reliant home that they defrauded back in 1979.

The report details numerous nursing home violations, from widespread improper maintenance and administration of medication to the choking and subsequent death of an elderly resident who was improperly fed a cookie while respirating through a breathing tube. Certainly there were other serious violations in addition to these, as the article notes that Harmony Healthcare failed eleven inspections, as well as the finding of widespread immediate jeopardy.

This case in Florida highlights one of the issues that abounds in nursing home abuse cases: a post hoc punitive system rather than preventative measures taken before abuse has the opportunity to occur. Had proper diligence been taken, perhaps the criminal records of the two primary owners of this facility would have been revealed, and the situation could have been prevented before these widespread violations took root. In addition to punishing violators for their transgressions, government agencies granting licenses to nursing home facilities should look to ensure that facilities are opened with the proper motives and by individuals willing and able to run care facilities according to state and federal guidelines.

The full story, including details of the criminal histories of Gelbtuch and Ellman, can be found here in the Sarasota Herald-Tribune story.

A Department of Health certification survey dated December 21, 2012 cites Somers Manor Nursing Home, in Westchester County, for six health inspection deficiencies. Among the deficiencies noted by the Department of Health was failure to properly prevent or heal bedsores (pressure sores, pressure ulcers).

A facility must ensure that residents who enter without pressure ulcers do not develop such ulcers unless it is unavoidable. The DOH report details a seventy year old woman who was admitted with several warning signs for the development of pressure sores. After a partial leg amputation, and the associated diminished mobility, this risk became even greater. As such, the facility implemented a care plan calling for the use of a seat cushion when the resident was out of bed, and also anytime the resident was in a wheelchair. On at least two occasions, the resident was observed out of bed without the assistance of a seat cushion. When interviewed, the Certified Nurse Aide stated that she was not aware of the seat cushion intervention. During the same interview, the same CNA found the seat cushion called for in the care plan. It had been in the resident's closet.

During examinations of the resident in December of last year, it was discovered that she had developed a stage III pressure ulcer on the sacral area of her lower back, as well as a stage II pressure ulcer on her left buttock. The DOH observed a nurse improperly applying a healing ointment to the area in contravention of accepted practices. The cream was meant to be applied to areas of skin that had healed, yet she applied it to the open, stage II pressure ulcer.

In many cases, the elderly and infirm are powerless on their own to prevent pressure sores from developing. These nursing home residents require the assistance of staff with simple interventions included in the care plans of almost all residents deemed to be at risk for pressure ulcers. These interventions, including turning and positioning, incontinence care, and implementation of seat cushions, cannot be performed by the residents themselves. Unfortunately, as appears to be the case at Somers Manor, at times the nursing home staff fails to follow the protocols laid out for them in these care plans. And, as has been discussed previously on this blog, a pressure sore, once developed, can lead to infection, tremendous pain and suffering, and even death.

Somers Manor was cited for several other deficiencies in the Department of Health survey, including failure to properly establish an infection control program, and failure to keep the facility free of accident hazards. To read about these and the other deficiencies detailed in the December report, visit the Department of Health website here.

Lifespan of Greater Rochester, Inc., an organization providing numerous services to seniors, announced recently that it received funding of $750,000 for its Elder Abuse Prevention Program. The funds were given by Governor Cuomo and the Rochester State Delegation, and will benefit the program that educates and assists caregivers and victims of elder abuse. The program has never before received funding of this magnitude.

Lifespan was founded in 1998, and although based in Rochester, has served the elderly and their caregivers throughout New York State. Its primary geographic area of focus is western New York. The press release announcing the funding contains numerous quotes from state senators and assembly-people discussing the importance of protecting our society's most vulnerable members.

Per its mission statement, Lifespan seeks to provide a full range of services to seniors. The statements reads, "Lifespan is dedicated to providing information, guidance and services that help older adults take on both the challenges and opportunities of longer life. We provide many direct services, we advocate and we guide. We also provide community and professional education." The organization's website provides details of the various programs and services that it offers, and can be accessed here.

To read the press release regarding the funding and what it will be used for, click here.

In a press release dated March 8 of this year, New York Attorney General Eric Schneiderman announced the arrest of a Certified Nurse's Aide from the Woodhaven Center in Port Jefferson, Long Island. The Suffolk County nursing home staffer was accused of taking a picture of the resident's genitals without the resident's permission. Having taken picture on his cell phone, the aide, identified as David Rover, then texted the image to a nursing aide student at North Shore Career Training Institute.

The Attorney General's office announced that it was charging Rover with two Class E felonies: unlawful surveillance in the second degree, and dissemination of an unlawful surveillance image in the first degree. Rover reportedly admitted to taking the photograph, which was later found by the Medicaid Fraud Control Unit on his device.

This blog usually focuses on civil violations suffered by nursing home residents at the hands of negligent staff at nursing homes. Less frequently do the actions discussed rise to the level of potential criminal prosecution. In a statement, Attorney General Schneiderman referenced two areas at the forefront of rules and regulations governing nursing homes--respect and dignity. He added that his office "will take action whenever [they] see facility staff abusing the rights of the people left in their care." Perhaps viewing this statement as a crackdown on nursing homes by the Attorney General is reading too much into it. At the very least, however, it is a call to arms from one of our state's highest offices to protect some of the most vulnerable members of our society--the elderly and infirm.

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

In an October 24, 2012 press release, New York State Attorney General, Eric Schneiderman, announced the arrests of two Certified Nurse Aides ("C.N.A.) at Tarrytown Hall Care Center. The aides, Maureen Flowers and Donna Pagan, allegedly caused the death of an elderly resident by failing to provide an appropriate transfer and covering up the crime.

According to the AG's investigation, C.N.A. Flowers was assigned to an 86 year-old-resident at the nursing home that had numerous underlying medical conditions and required 24 hour total care. Due to her condition, the resident's care plan required that a mechanical lift and two person assist be used when transferring the resident from bed to wheelchair.

Flowers reportedly attempted to transfer the resident by herself with the use of a lift. During the transfer, the resident fell to the floor, suffering multiple fractures to her spine, right leg, and nose and bruising to her face. Tragically, instead of seeking immediate attention from emergency personnel, Flowers sought out co-worker Donna Pagan, 35, and asked her to lie and say she had assisted her as she attempted the transfer. In the meantime, the resident lay on the floor bleeding.

After the two aides agreed to cover-up the incident, the resident received medical attention but died two hours later at Westchester Medical Center. In interviews and written statements provided to supervisory staff of the Care Center, Flowers and Pagan stated that they had both been present during the attempted transfer.

AG Schneiderman explained, "This is a sad and disturbing case of a nurse's aide who, by ignoring both the rules of the home where she worked and her training, caused the death of one of our most vulnerable citizens."

Flowers, a Bronx resident, is charged with Endangering the Welfare of a Vulnerable Elderly Person in the First Degree, a Class D felony. Pagan, of Peekskill, N.Y., is charged with Falsifying Business Records in the First Degree, a Class E felony.

A.G. Schneiderman Announces Arrests Of Two Nursing Home Aides Who Failed To Provide Care Resulting In Death Of Elderly Resident, October 24, 2012.

The attorneys at Gallivan & Gallivan represent victims of nursing home neglect and abuse in the New York area. Contact us if you or a loved one has been injured due to negligence at a New York Nursing Home.

In October of last year, the New York State Department of Health conducted a certification survey at Ocean Promenade Nursing Center, a nursing home in the Rockaway Park section of Queens. The report notes that this was a repeat deficiency for Ocean Promenade, meaning that the facility had been cited for a similar violation in the past.

The resident, a seventy-two year old, was admitted to the facility with two existing Stage II pressure ulcers (bedsores), each located on the sacrum (lower back/buttocks). Upon admission, the Nursing Progress Note documented that the resident had multiple open skin areas on and around the sacrum. A care plan was initiated, detailing several interventions, including topical cream application and wound care rounds. Although the wound care intervention was put into place on the resident's admittance care plan, the wound team did not see or evaluate the pressure ulcer until two weeks after admission. At this point, the resident had developed a decubitus ulcer on the sacrum measuring (in centimeters) 15 x 15 x 0.2. At admission the sacral ulcers measured 0.5 x 0.5.

In reading the DOH report, it appears that miscommunication could be a source of issues regarding pressure ulcers at Rockaway Park. In interviews conducted after the DOH assessment, the RN stated that it is the duty of the admitting RN to notify the wound care team of the pressure ulcer in order for the team to monitor and treat the sore. She also stated that initially the wound was not a pressure ulcer, but that due to incontinence it had progressed into one. Whether in response to this statement by the RN or as a stand-alone comment, the admitting nurse claimed that she had, in fact, alerted the wound care team to the need for ulcer monitoring. In any event, the team did not assess the resident until two weeks had passed post-admission. By this point the pressure ulcer had deteriorated into a much more serious state.

Failure to properly treat pressure ulcers was not the only deficiency documented by the Department of Health in its October report. For a complete synopsis of the findings, including failure to develop comprehensive care plans and failure to prevent catheterization unless unavoidable, visit the Department's website here.

Bushwick Center for Rehabilitation and Healthcare, a nursing home located in Brooklyn, NY, was cited by the Department of Health in a December, 2012 deficiency report for several violations of the Code of Federal Regulations. Among these failures was the facility's duty to keep a resident's drug regimen free from unnecessary drugs.

In relevant excerpts for the resident described in the DOH report, Title 42 section 483.25(l) states that an unnecessary drug is one that is used in excessive dosage, or an antipsychotic medication used without behavioral interventions in an effort to discontinue usage of such a drug. The resident in question was an eighty year old female with various underlying medical conditions, including mild dementia, depression, and altered mental status. Upon admission to Bushwick, the patient was placed on two medications: Haldol every six hours, and Seroquel.

The Department of Health took issue with each of these prescriptions, citing a different reason for each. When the patient was discharged from the hospital to Bushwick, the discharge order stated that she was to be given Haldol "as needed." When admitted to Bushwick, the home placed the resident on a standing order of Haldol every six hours. In a subsequent interview, the resident's physician stated that "he was told" that Haldol was to be administered every six hours. He was unaware of the contrary prescription from the hospital. The Medical Director confirmed that the prescription alteration at the home was human error.

With respect to Seroquel, the nursing home prescribed this to ease the resident's insomnia. Upon inspection of her medical records, however, the Department of Health found no record of insomnia. In the same interview with the Medical Director referenced above, he expressed concern that the psychiatrist was unaware of the Haldol prescription when ordering the Seroquel. This concern contradicts a statement made by the attending physician, who believed that the psychiatrist did, in fact, conduct some sort of oversight regarding the patient's medications. Based upon this assumption, the physician stated that because the psychiatrist made no changes to the resident's prescriptions, he (the physician) felt "that it was okay."

Communication between treating physicians in a nursing home is critical. A resident, particularly a resident suffering from dementia or other psychological impairments, cannot be responsible for monitoring his or her own medications. As such, this duty falls entirely upon the facility. Without proper monitoring of prescriptions mistakes such as the ones detailed above have a greater tendency to occur. The potential ramifications that may occur in the case of medication error are quite serious, though--possibly even deadly. The Medical Director assured the DOH that in the future the physician would take greater care to document appropriate diagnoses in an attempt to avoid situations such as this.

The Department of Health write-up of this and several other violations by Bushwick can be found here.

A certified nurse's aide at Bronx nursing home, Gold Crest Care Center, was recently arrested and charged with endangering the welfare of a physically disabled person and three counts of willfully violating the Public Health Law. She was reportedly caught on video abusing an elderly resident who suffers from Alzheimer's DIsease.

According to the Office of the NY State Attorney General, Sandra Kerr, a 55 year-old, was caught on camera hitting the Alzheimer's patient twice in her side on September 14, 2013. The resident's granddaughter had been worried about her care, and hid the camera in the room.

C.N.A. Kerr also allegedly pushed the helpless woman into the metal railing of her bed, pushed padding from the bed onto her body, and snapped the victim's arm back.

Kerr, who lives in in Williamsbridge, could face one year in jail.

Gold Crest was recently cited by the New York State Department of Health for employing individuals guilty of abuse and failing to have policies in place to avoid abuse and/or neglect of its residents.

Our firm has handled matters involving Gold Crest in the past. If you or a loved one has been abused or neglected in a nursing home, please contact the attorneys at Gallivan & Gallivan in order to protect your rights.

Website Resource:
Nurse aide slapped with charges for 'abusing' elderly Bronx patient, REBECCA HARSHBARGER, NY Post, February 16, 2013.

Manhattan nursing home Rivington House--The Nicholas A Rango Health Care Facility, was fined $10,000 in September 2011. After an investigation in July, 2010, the Department of Health found deficiencies that resulted in actual harm at the facility, leading to the penalty. In short, the DOH determined that Rivington House failed to provide necessary care for the highest practicable well-being of its residents.

Per the Code of Federal Regulations, "[E]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." The resident reviewed by the DOH was a known drug abuser found in his bathroom with drug paraphernalia. Although found with these banned substances in his room, the staff did not fully assess what substances the resident had taken and in what amounts. Staff also did not inform the resident's treating physician of the incident. On the day after finding the drug equipment, the man collapsed and died in front of nursing home staff.

The facility's policy on drug abuse is to notify the physician in order to conduct an evaluation of the individual. Based upon the DOH findings, this was not done. In an interview conducted by the Department of Health after the incident, the Medical Director admitted that "the MD should have been informed or that the resident should have been transferred to the hospital for evaluation."

Drug abusers cannot be expected to responsibly handle their own individual addictions. When an addiction is coupled with underlying physical and mental issues (the resident at Rivington House suffered from dementia and Hepatitis-C, among other ailments), this level of personal responsibility diminishes even further. Even had Rivington House not violated the CFR, it still would have circumvented its own policies and procedures when the resident was not evaluated by a physician following his incident. Perhaps this man's death would have been avoided; perhaps it would not have. The fact remains that failure to follow both federal regulations and internal policies placed this resident in jeopardy, warranting the fine from the Department of Health.

Additional deficiencies at Rivington House for the same time period can be found here on the Department of Health website.

Brooklyn based nursing home Schulman and Schachne Institute for Nursing and Rehabilitation was fined $12,000 in late 2012 by the Department of Health. The fine stems from a certification survey taken in January, 2010 in which the nursing home received deficient ratings in four health related categories.

In two areas documented in the survey, the DOH found that Schulman and Schachne's deficiencies caused actual harm to its residents. In the first incident, the home failed to maintain an environment free from accident hazards. As a result, a resident fell fourteen times over a five and a half month period. One of the falls led to a hip fracture. The resident had several underlying conditions making her a fall risk, including seizure disorder, glaucoma, and prior brain surgery. She required assistance with many, if not most, activities of daily living. The nursing home had labeled her a "high risk" for falls, and a created a care plan to address her risk for falls. However, after multiple falls, the care plan was not reevaluated and the resident was not reassessed. Moreover, no new interventions were put into place. An interview with the Director of Nursing revealed that there was no documented evidence that interventions were reassessed, or that additional interventions were implemented.

As many people with elderly loved ones know, a fall leading to a fracture can lead to severe consequences. The lessened ability to move and further loss of functionality can lead to additional health consequences, such as weight loss, bedsores (pressure ulcers), and infection. For an elderly individual with already diminished mobility and functionality, a fall can greatly hinder health and well-being for the remainder of the individual's life.

The second incident documented at Schulman and Schachne that led to actual harm involved significant weight loss in a resident. This individual, an eighty-eight year old who was entirely dependent upon the staff for several daily activities, including eating. The care plan implemented for the resident required that the facility monitor the patient's weight. However, there was no documented evidence that this was done for the period of a full month. Over that month the resident, who had already lost approximately six pounds since admission, lost another fifteen pounds. The dietician should have been notified of this weight loss, yet she was not. Perhaps this is because the facility failed to document the weight loss. Regardless, the dietician told the DOH that she, herself, could have more closely monitored the resident for weight loss yet she did not.

Actual harm that is not immediate jeopardy is the third highest (out of four) deficiency rating that the Department of Health gives. In both of the cases cited above, the resident suffered an actual injury due to the deficient practices of Schulman and Schachne. There were other sub-par areas found by the DOH in its report, and they can be found here.

As a result of the latest enforcement survey issued by the Department of Health, Wingate at Beacon, a Dutchess county nursing home, was fined $24,000. During a January, 2011 certification survey at Wingate, the DOH found four deficiencies serious enough to warrant a severity level of Immediate Jeopardy. This is the most severe rating that the DOH dispenses in its certification surveys. The four deficiencies each centered around the death of a resident after choking on her food.

As mentioned, the Department of Health cited Wingate for four health deficiencies. These areas were:

• maintaining a facility free of accident hazards;

• administering the facility to obtain the highest practicable well-being of residents;

• preparing food to meet individual needs; and

• providing services that meet professional standards.

The resident involved in this unfortunate occurrence was forty-six years old. She suffered from Multiple Sclerosis, Seizure Disorder, and difficulty swallowing. These conditions made her a choking risk. In fact, the resident did choke in December of 2009, requiring the administering of the Heimlich Maneuver. Per physician's orders, the resident was to be assisted with eating by the facility staff. She was also to be fed a special diet of soft foods with strict monitoring to prevent aspiration (choking by way of inhaling food into one's lungs). Despite these known risks, and in contravention of the care plan and physician's orders, the patient was left to feed herself during breakfast one morning. Not only was she left alone, but she was also given a hard boiled egg rather than the "ground diet with extra gravy" per the facility's stated interventions. As a result of this lapse in judgment by Wingate, the resident aspirated the hard boiled egg, resulting in her death.

Of course, the death of a resident is the most serious and tragic outcome that can arise from facility negligence. Also disturbing in this case is that Wingate was home to more than ninety additional residents suffering from swallowing difficulties. Obviously the potential for serious harm existed for these individuals as well. Again, as is so often the case in situations like this, the tragic events surrounding this resident underscore the importance of a facility diligently following an individualized care plan and physician's orders. Failure to do so not only leaves the facility open to liability, but also can potentially lead to the unthinkable--the untimely and unnecessary death of one of the residents in its care.

To read further about the incident at Wingate and the Department of Health's response, go to the entire detailed deficiency report located here.

If you or a loved one has suffered as a result of neglect at a nursing, please contact Gallivan & Gallivan to protect your rights.

The New York State Department of Health recently released its statement of enforcements for the period of July, 2011 through December, 2012. The document lists fines levied against nursing homes and similar facilities throughout the period. The fines are the result of certification surveys taken over a span of several years prior to the enforcement period. The next several blog entries on the New York Nursing Home Abuse Lawyers Blog will deal with these monetary penalties and the deficiencies found by the DOH that led to the fines.

On September 25, 2012, the Department of Health fined Marcus Garvey Nursing Home, located in Brooklyn, $10,000 for incidents uncovered in a February, 2011 certification survey. Of the more than twenty areas in which the DOH found Marcus Garvey deficient, the most serious involved a situation that cause actual harm to the resident.

The Code of Federal Regulations mandates that a facility must "provide the necessary care and services to attain or maintain the highest practicable physical...well-being in accordance with the comprehensive assessment and plan of care." The resident in question was a fifty year old man suffering from diabetes and Coronary Artery Disease, among other health issues. During an examination, the patient was discovered to have a dangerously high potassium level. Despite this danger, the results of the lab assessment were not given to the resident's doctor for four days subsequent to the review. Also not reported to the physician was a sensation of numbness that the patient felt. He was taken from Marcus Garvey to a local hospital, where he died. The cause of death was reported as cardiopulmonary arrest.

The failure to report the resident's critically high potassium level violated both the CFR and facility policy. In multiple interviews that the DOH conducted with staff members at Marcus Garvey, the consensus appears to be that critical values reported from the lab should be given immediately to the supervising physician. The physician will then issue a plan of action for the patient. Needless to say, a four to five day wait time is not immediate. In this case the delay could potentially be the cause responsible for costing this resident his life.

As mentioned above, there is a multitude of other deficiencies discovered by the Department of Health in the February, 2011 survey conducted at Marcus Garvey. Among them are failure to keep residents' drug regimen free from unnecessary drugs; failure to keep the facility free of accident hazards; and failure to enact policies and procedures that prohibit abuse and/or neglect. To read further about these deficiencies, and to read the entire Department of Health write-up on the case study described above, visit the certification survey on the DOH website here.

Schnurmacher Center for Rehabilitation and Nursing, located in White Plains, was the subject of a Department of Health Certification Survey in July of 2012 for several deficiencies. Among the failurles reported by the DOH was a failure to properly prevent and treat pressure ulcers.

The female resident described in the report suffers from high blood pressure and dementia. She has significant problems with mobility and incontinence issues. An assessment in November 2011 detected no pressure sores on the resident's skin. Her physical impairments put her "at risk" for the development of future pressure ulcers. In the month following this assessment, the patient lost over twenty pounds while at Schurmacher. In early January of 2012, the resident developed a pressure ulcer on her lower back, near her tailbone. Over the following months, a second pressure ulcer, this a Stage II, developed in the middle of her back. These pressure sores did not heal until mid-July, and the Department of Health report notes that approximately a week after the wounds were noted to be healed, the sacral ulcer had reopened.

Although care plans were in place to prevent pressure ulcers from developing, the Department's investigation showed no evidence that the care plans, particularly revolving around a turning and positioning intervention, were implemented. Interviews also showed that although the resident's diet was being monitored, this monitoring was conducted in such a way so as to make determining actual nutritional intake difficult.

Developing individualized care plans on a resident by resident basis is important to the individual's well-being. However, the creation of a care plan only indicates intent. Equally, if not more, important is the implementation of these care plans. It seems as if this second phase, the implementation of the care plans, was the catalyst for the breakdown of this resident's skin integrity. Perhaps the pressure sores would have developed even if the facility had been more diligent in adhering to its own protocols regarding the implementation of care plans. Had this been the case, though, the facility would have been in a better position to say that it had provided necessary treatment to promote healing and prevent new sores from developing. As it was, according to the Department of Health, Schnurmacher was unable to make this claim.

A full account of Schnurmacher's certification survey, including other deficiencies in the areas of infection control, care plans, and physician responsibilities can be found here.