March 13, 2015

Department of Health Finds Actual Harm at Queens Nursing Home

A March, 2014 Certification Survey conducted by the Department of Health at Queens Nassau Rehabilitation and Nursing Center found that the facility failed to remain free of accident hazards. This failure resulted in actual harm for a resident of the facility.

The New York Administrative Code dictates that New York nursing homes must ensure that the resident environment remains as free of accident hazards as possible, and that each resident is adequately supervised to prevent accidents. The Department's findings at Queens Nassau centered on a resident who was admitted to the facility with several diagnoses that would affect his ability to make his own determinations regarding his well-being. The resident, among other factors, had a seizure disorder, Stage IV pressure ulcer of the hip, and dementia. Queens Nassau recognized that the resident's behavior placed him at risk for physical injury, and that he was entirely dependent on the staff of the nursing home for almost all activities of daily living.

In late October, 2013, a CNA on staff at the home entered found the resident's leg stuck in a gap between his bed and the side rail that the facility had implemented. Several days later, after showering the resident, staff noticed swelling and tenderness to the man's right thigh. He was taken to the hospital and examined. Following an x-ray, it was discovered that the man had suffered an Acute Comminuted Spiral Fracture of the Midshaft right Femur (a broken leg).

As is the case in most, if not all of these DOH surveys, investigators interviewed numerous relevant parties at the facility to determine the circumstances surrounding the resident's injury. The CNA who had been on duty on the night that the resident broke his leg told investigators that she remembered the specific incident, but that it was not out of the ordinary for that particular resident to become stuck in the side rail. Other staff members reiterated that the resident was very active while in bed, often thrashing about and toying with the side rails.

From his diagnoses, it would appear that this resident was an accident risk, particularly due to his restlessness in bed. It is the duty of the facility to ensure that such residents' environments remain as free of accident hazards as possible. It would also appear that the nursing home failed in that regard with respect to this patient.

The full DOH report can be found here.

March 12, 2015

Criminal Charges Result from Bronx Nursing Home Death

CBS News brings us this disturbing story from a Bronx County nursing home:

An aide at a Bronx nursing home is facing charges in connection with the death of a 77-year-old patient.

According to law enforcement sources, the fight that broke out between the aide and the victim was so intense that witnesses told police they had to pull the two apart, 1010 WINS' Sonia Rincon reported.

Police said during the altercation Frank Mercado fell onto a broken table in the room, and a piece of metal impaled him. He was rushed to Montefiore Hospital, where he succumbed to his injuries hours later.

The aide, Cherrylee Young, had been employed by the facility for 14 years. She has been arrested and charged with criminally negligent homicide, felony assault, and endangering the welfare of an adult. Last month, Young pleaded not guilty on all charges.

Yes, actual, violent death is perhaps an extreme example of nursing home danger. But as the New York Times points out in an extensive piece on Mr. Mercado's death, New York nursing homes in particular suffer from dangerously high rates of abuse and neglect. The trend is sadly toward less, not more oversight, and private companies have been on a buying spree, taking over not-for-profit care facilities and slashing staff and services to increase profits. If the trend continues, we shouldn't be surprised to see more tragedies like the one that befell Mr. Mercado.

The nursing home in this case was just such a private, for-profit operator: University Nursing Home, owned and operated by the elder care giant Centers Health Care. University Nursing Home has declined to comment on the death beyond touting their so-called high government ratings, and claiming to be cooperating with the police investigation. The Times article highlights several other true horror stories of residents suffering severe injuries while in the "care" of University Nursing Home, and notes the high number of safety code violations, along with some truly disturbing statistics involving depression, weight loss, and psychotropic drug use of residents.

For those of us who practice in this area, it is difficult to understate the hellish conditions found at some elder care facilities in New York State. Typically, only when a "newsworthy" incident, such as a gruesome death, comes to the attention of the press do these facilities receive negative publicity. A similar case came to light this past September, after a group of home health care aides callously allowed an elderly man in their care to die after refusing treatment for broken bones resulting from a fall.

Documents unearthed by the Times have highlighted one of the major contributing causes to this epidemic of elder abuse: the profit motive. Simply stated, if costs can be slashed to the bare minimum, and if Medicare and Medicaid continue to pay their bills every month, running a nursing home can be quite a lucrative venture for a private health care provider. That makes it even more necessary to hit these negligent or outright abusive (or, yes, homicidal) nursing homes with the maximum possible extent of civil liability - to ensure they feel it where it counts when one of their residents suffers unnecessarily.

March 12, 2015

Elder-against-Elder Abuse in Nursing Homes

When we discuss civil liability that can arise from care of elders in a nursing home, we typically describe such negligence as inadequate living conditions, negligent nurses and orderlies, ignorance of medical needs, even physical, emotional, and verbal abuse. Often, it's exactly this kind of behavior from nursing home owners and employees that leads to lawsuits. But a new study from Cornell University-Weill Cornell Medical College brings some attention to an often overlooked form of abuse that is growing in the elder care community: elder-on-elder violence. In other words, residents behaving violently toward other residents.

The study, which focused on ten facilities based in New York State, found that "one in five nursing home residents ... were involved in at least one aggressive encounter with fellow residents during the four weeks previous to the study." These statistics are shocking, and the reader is encouraged to click the above link to read about the study in full.

From the perspective of a New York nursing home attorney, the key point to emphasize here is that just because a resident, rather than an employee, physically harms another resident, this does not mean that a nursing care facility is completely absolved of responsibility for that harm. Nursing homes are tasked with a legal duty to actively prevent these types of incidents from happening. This is an integral part of the responsibility a nursing home takes on when it opens for business.

When a nursing home ignores that duty, we properly call it negligence. After all, if these elders were of entirely sound mind and body they would presumably not require the round-the-clock care of a nursing home. The nursing home brings in these residents with the full knowledge that they require constant attention and supervision in part to prevent them from hurting themselves or each other. When a nursing home fails to provide such supervision and harm results, the nursing home is directly liable for that negligence.

Certain factors can increase the legal blame placed on a nursing home for a resident-on-resident injury. That is, if a court or jury found certain aggravating conditions, a nursing home could find itself liable for additional damages, including punitive, beyond what it would in a case of so-called "mere negligence." If, for example, a nursing home hired employees without performing proper background checks, and this led to harm, that could be seen as an example of particularly gross negligence. If a resident with a violent behavioral history was welcomed into the facility and not closely supervised, increased liability could result. In terms of elder-on-elder abuse resulting in harm, an attorney should properly evaluate all possible aggravating factors: hiring, training, responses to altercations, and the general day-to-day oversight of the elderly population.

The types of incidents highlighted by the Cornell study are disturbing in the extreme, from cases of biting, kicking, and hitting, to sexual abuse. Considering that these forms of abuse are happening to some of the most vulnerable members of our society, it is that much more important to keep nursing homes alert and on notice for these forms of harm, through both proper regulation and civil lawsuits.

If your loved one has suffered harm because of an incident of elder-on-elder abuse, talk to a lawyer who specializes in nursing home liability. Click this link to contact our firm to learn more about your options.

March 6, 2015

Recent Arrest by Attorney General Schneiderman in Nursing Home Abuse Cases

December was a busy month in the New York State Attorney General's office when it came to prosecuting New York nursing home abusers, with two arrests made and announced. The Attorney General has both criminal and civil powers to enforce the laws of New York; this post will look at how he has exercised those criminal powers in the fight against elder abuse.

On December 10, the Attorney General announced the arrest of Maria Fernandez, a licensed practical nurse employed at the Victoria Lake Nursing Center in Hyde Park, Long Island. Ms. Fernandez was caught on camera slapping an 83 year-old resident of the facility who suffered from dementia and was entirely dependent on others for her care and survival. On December 17, AG Schneiderman also publicized the arrest of a certified nurse aide at the Huntington Hills Center for Health and Rehabilitation, another Long Island nursing home, for improperly and illegally moving a disabled 92 year-old patient from a wheelchair to a bed without the assistance of another staff member, against the patient's "plan of care," resulting in a leg wound. The nurse aide is then alleged to have tampered with paperwork to cover up her breach of care.

In these cases, the key takeaway is that what may seem like "small" violations in the grand scope of criminal law - a slap, a breach of patient care - can carry grave legal consequences when the victim is a nursing home resident entirely dependent on others for their care. That slap has the potential to send Ms. Fernandez to prison for four years. The breach of care in the Huntington Hills facility led to charges (including the cover-up) could also lead to a four-year prison term for the nurse aide. Both of these sentences are potentially longer than they would have been if the victim was not so vulnerable. These are, plainly put, extremely serious crimes.

AG Schneiderman has been excellent on this issue, which has emerged as a top priority in his office. In June, he announced the arrests of nine nursing home employees in Suffolk County after a 72 year-old resident of the Medford Multicare Center for Living was entirely ignored by staff as her vital signs slowly failed in bed. The woman later died. To criminally charge nine employees of a single nursing home is absolutely stunning - it shows a resoluteness, and a distinct ability to understand the uniquely horrific nature of crimes against what is, in the end, one of the most vulnerable populations in our state. And again, note that these employees did not actually beat, torture, or directly injure the victim. Her death was the result of ignorance, of the failure to perform by those who had a legal duty to do so. In this context, such a failure to perform is a very, very serious crime.

It's important to note that these arrests are not the only way the state of New York is fighting elder abuse by health care workers. Arguably, the civil lawsuits filed by AG Schneiderman's office are more powerful methods to effect change, as they do more than punish so-called "bad employees" and target entire nursing homes and corporate owners, who hold primary responsibility for the cultures their facilities adopt. We'll keep you up to date on these lawsuits in future posts, and please remember that if you suspect your loved one to be victim of nursing home abuse, you can contact our office for a consultation, or make a complaint of suspect abuse directly to the New York Department of Health.

February 16, 2015

Westchester Nursing Home Cited for Failure to Prevent Pressure Ulcers

Dumont Center for Rehabilitation and Nursing Care, a Westchester Nursing Home located in New Rochelle, was cited by the Department of Health in a September, 2014 deficiency report. Among the numerous failures uncovered by the DOH were failure to prevent the development of pressure ulcers.

The resident was admitted to the nursing home as a known risk for the development of pressure ulcers. Her assessment revealed that she did not have any pressure sores of Stage I or higher. Approximately nine months into her stay at the facility, the resident fell while walking without the use of her walker. After being transferred to the hospital post-fall, it was discovered that she had fractured her hip and needed surgery. Following the surgery and recovery time in the hospital, she was sent back to Dumont.

As she continued recuperation from the surgery, the resident developed a Deep Tissue Injury to her right heel. At the time of its discovery, the sore was unstageable. Although the nursing home had initiated a careplan to prevent pressure ulcers from developing, a review of the CNA Accountability records showed that interventions had been ordered, but not implemented. Only after the sore had developed did the Accountability records show a pillow to elevate the heel and a low air loss mattress. Additionally, an "EZ boot" had been ordered to further off-load pressure, however it did not appear to have been implemented. The DOH made efforts to interview the CNA who had provided care for the resident following her return to the facility after surgery, but the charge nurse LPN could not identify the CNA. In an interview that the DOH was able to conduct, the LPN Rehab and Wound Care nurse told investigators that the nursing home did not even stock the EZ boots that had been recommended by the Wound Care Specialist.

Noted above, upon admission to the facility, the resident was already a risk for the development of pressure ulcers. Her fall and subsequent immobility added to the risk already present due to her underlying hypertension and diabetes. While this added risk factor does make the prevention of pressure ulcer development more difficult, the nursing home is still charged by state and federal regulations to ensure that an individual exhibiting no pressure ulcers does not develop them unless such development is unavoidable. It is impossible to say with any certainty whether the ordered interventions in this case would have worked to prevent such a wound, had they actually been timely implemented.

The full report on Dumont contains details of other deficiencies recorded by the Department of Health during its visit to the nursing home. These deficiencies, including improper labeling of drugs and biologicals and failure to provide services by qualified persons in accordance with a resident's careplan, can be found here.

February 9, 2015

Long Island Nursing Home Fined After Resident Chokes to Death

Woodhaven Nursing Home, located in Suffolk County, was fined $21,937.50 by the Department of Health after an unsupervised resident choked on a sandwich in December, 2013. The resident was allowed to eat unsupervised despite being a known choking risk due to underlying conditions including dysphagia and impaired cognition. The nursing home had also implemented an aspiration precaution careplan for the resident. He died as a result of the choking incident.

Because Woodhaven had placed aspiration precautions in the resident's careplan, staff was not supposed to give him any food that could lead to choking. Rather, his diet was to consist of pureed solids and/or honey thickened liquids. Additionally, staff was to assist the resident while eating until each meal was finished. Numerous notes in the resident's chart throughout and leading up to the incident document his dietary restrictions. On December 11, 2013, the 24-hour note states that he had expired during the night shift. This particular note contains no other information on the resident.

Details of the patient's death are not recorded until a Nursing Note dated the following day. According to the note, the patient choked while eating a sandwich. Despite resuscitation efforts (Heimlich and suctioning), the staff was unable to revive the man. A separate Nursing Note suggests that although staff were present at the time of the incident, they were not assisting the resident with eating. Staff did advise the resident to eat more slowly, however he did eventually choke on the sandwich and subsequently passed away.

As it often does in cases such as this, the DOH conducted numerous interviews with staff at Woodhaven. One such interview of particular interest was conducted with the Medical Director of the nursing home. He told the Department of Health that he was not aware of a system in place for aspiration precautions. He also told the DOH that he could not recall ever reviewing a policy on aspiration precautions. The Director of Nursing, in her interview with DOH investigators, stated that she did not believe that neglect had occurred "because staff did not intentionally force food down his mouth."

As has been documented many times before on this blog, it is the duty of a nursing home to ensure that the resident environment remains as free of accident hazards as possible. The nursing home must provide adequate supervision to residents to ensure that accidents do not occur. "Accidents" can include choking incidents, such as the one described above, falls, fractures, and any number of other incidents that may occur at a nursing home. Unfortunately for the man and his family who put their trust in Woodhaven to care for him, this incident ended in tragedy.

The entire Department of Health survey can be accessed here.

February 9, 2015

Department of Health Fines Monroe Nursing Home Almost $78,000 for Medication Error

Following a December, 2013 certification survey during which the Department of Health found a significant medication error, Hill Haven, an upstate New York nursing home, has been fined $77,935.00. The fine comes in the form of a Federal Civil Money Penalty, used by state and federal governments when a nursing home does not adhere to minimum standards of care.

pills9.jpgThe Department of Health conducted the survey leading to the fine on December 6, 2013. The reason for the steep amount of the monetary penalty could be that one violation documented, failure to ensure that residents are free from significant medication errors, was a repeat offense from a survey taken about a year earlier. The 2013 survey details the failure of the nursing home to provide a steroid used to control inflammatory diseases to a resident suffering from an inflammatory skin disorder.

Per physician's orders, the resident in question was to receive the drug, Prednisone, on a daily basis while at the same time decreasing the dosage from the start of admission. After failing to administer the drug for a two day period roughly two weeks after admission, the resident required hospitalization. After the week long hospital stay, the resident was readmitted to Hill Haven. Again, the order stated that the patient was to receive the Prednisone, tapering the prescription level on a weekly basis. Despite both the order and the previous hospitalization due to failure to administer his medication, the nursing home again failed to provide the Prednisone to the patient. He was sent back to the hospital only seventeen days after his readmission to the nursing home.

Interviews conducted of the Registered Nurse Manager, attending physician, and Medical Director revealed that all were aware of serious side effects of abruptly stopping Prednisone usage. Additionally, and somewhat obviously, the facility's policy stated that all medications were to be administered in accordance with physician orders.

Both state and federal regulations dictate that a nursing home must ensure that residents are free of any significant medication errors. Perhaps the simplest way to do this is to have a physician examine incoming residents, develop an individual medication plan, and communicate this plan via physician's order to all other caregivers. When these orders are not followed by the nursing staff, residents can face serious consequences, including hospitalization and death. The Department of Health did not include in its survey the current state of the resident's health.

The full report from the DOH can be found here on its website.

January 30, 2015

Bronx Supreme Court Denies Defendant's Motion for Summary Judgment as to Negligence and Public Health Law Violations

A Decision and Order issued by the Hon. Stanley Green in Bronx County Supreme Court in March, 2014 denied defendants' summary judgment motion as to negligence and violations of NY Public Health Law in a Bronx nursing home negligence action. Judge Green did grant summary judgment for the defendants as to an assault and battery cause of action.

The facts surrounding the complaint involved a nursing home fall and the subsequent development of pressure ulcers. Plaintiff had been admitted to the defendant nursing home as a resident with a high risk for both pressure ulcers and falls. One particular morning several months into the resident's stay, a CNA entered her room on her care rounds. After raising the bed and removing a nearby floor mat, the CNA left to prepare a wash cloth in the bathroom. Upon re-entering the resident's room, the CNA found her on the floor with several cuts to the face. In addition to the fall, the resident developed several pressure sores during her stay at the defendant facility.

The nursing home moved for summary judgment on grounds that the fall was unavoidable, and that it had exercised all reasonable care with respect to the resident's treatment. In addition, the defendant moved for dismissal of the Public Health Law cause of action as duplicative of the negligence cause of action.

Judge Green's Decision addresses and dismisses a cross claim by a co-defendant (the nurse staffing company) as to indemnification by the nursing home. Although an interesting contractual case study, the merits of this motion fall outside the realm of this blog. More relevant to our purposes is the short, yet important, discussion that Judge Green provides as to the defendant's claim that plaintiff's Public Health Law cause of action was duplicative.

In denying this aspect of the motion, Judge Green cites Zeides v. Hebrew Home for the Aged, 300 A.D.2d 178, 753 N.Y.S.2d, 450, a case well known by nursing home attorneys. Zeides notes that a cause of action under the Public Health Law is not duplicative of negligence. Per Judge Green's opinion, "remedies under the Public Health Law are in addition to and cumulative with any other remedies available at law or in equity and a plaintiff need not choose between traditional tort causes of action and a PHL 2801-d cause of action, but may pursue both." (citations removed).

With Zeides as precedent, Judge Green denied the defendant's motion to dismiss the PHL cause of action. Having survived summary judgment, the plaintiff may now move forward with pursuing her case.

Placide v. United Odd Fellow and Rebekah Home, Inc. et. al., NY Slip Op 31082(U)

January 29, 2015

First Department Upholds Summary Judgment for Defendant in Bronx Nursing Home Action

A March, 2014 Decision and Order by the Supreme Court Appellate Division, First Department, upheld a lower court's finding of summary judgment for a defendant nursing home. The underlying complaint, negligence against the Bronx nursing home for failure to properly treat and heal a pressure ulcer, leading to amputation, was therefore dismissed.

wheelchair room.jpgPlaintiff-appellant had been discharged to the defendant nursing home with two existing Stage IV pressure ulcers on his left leg. A prior diagnosis at a Florida hospital stated that the decedent was a candidate for potential amputation due to the deterioration of the ulcer. In fact, the hospital advised that the patient undergo the procedure because the prognosis for recovery was so slight. Ultimately the resident did have his left leg amputated below the knee. The plaintiff sued, claiming that the nursing home's negligence in allowing a previously healed pressure ulcer to reopen was the cause of the eventual amputation.

The First Department disagreed with the plaintiff-appellant. In doing so, the Court relied upon conflicting accounts as to the origin of the injury. Additionally, the defendant-respondent's expert opined that the amputation was inevitable, due to the preexisting condition. He also claimed that the nursing home had adhered to appropriate medical standards in treating the patient. The appellant's expert asserted a merely conclusory opinion that the amputation was avoidable because "no other extremity required amputation."

Clearly the defense expert affirmed that the nursing home did not depart from an accepted standard of care. After the defendant made this prima facie showing, it became incumbent upon the plaintiff's expert to raise a triable issue of fact to overcome summary judgment. Because the Court felt that the plaintiff's expert affirmation was conclusory, the plaintiff was unable to meet his burden and overturn the lower court's finding.

Iciano v. Franklin Nursing Home, 2014 Slip Op 3009

January 28, 2015

Court Rules 18 Month Delay in Appointing Administrator Did Not Prejudice Defendants

In March, 2013, the Supreme Court, Nassau County decided that a delay of roughly one and a half years in appointing an Administrator did not prejudice the defendants to the extent that they could not defend a nursing home negligence/malpractice action. Abdul Hasan, the named plaintiff in the complaint, died approximately two months after plaintiffs filed their pleadings. Because of Hassan's death, it was necessary to substitute a plaintiff to continue the action. As Hassan died intestate (without a will), this substituted plaintiff would necessarily be the Administrator if his estate. Due to complications with the petition, or application, for Letters of Administration, plaintiffs were unable to have a representative appointed until about eighteen months after Hasan's death.

The co-defendants, a Nassau County nursing home and a Nassau County hospital, argued that this delay severely prejudiced their ability to defend the action. They claimed that plaintiffs had been uncooperative; that the decedent had not been deposed; that discovery had been delayed; and that witness memories had faded to the extent that they would be unable to recall the circumstances underlying the complaint. In response, plaintiffs argued that they were unable to adequately complete discovery without the benefit of a representative of the estate; that they could, at the time of the decision, complete such discovery; and that the defendants had failed to meet their burden of showing prejudice. In its Decision for the plaintiffs, the Court noted that plaintiffs could not have acted without a legal representative of the estate, and that defendants merely showed delay, not prejudice. The Court ordered a preliminary conference to move forward and facilitate the discovery process.

Often in nursing home negligence actions, the individual who suffered the injuries is deceased. In these situations, a personal representative of the decedent's estate must be appointed for the action to continue. The case described in this post involves an Administrator, the name for a personal representative appointed when the decedent did not have a will (as opposed to an Executor, who would be named within the decedent's last will and testament).

A petition for Letters of Administration is filed with the Surrogate's Court of the decedent's county of residence. When examining the petition, the Surrogate requires at least two documents. The first is an original, certified death certificate. The second is a paid funeral bill. Per the facts of the Decision, the plaintiffs above had difficulty obtaining each of these documents. This contributed to the delay in the issuance of Letters.

Often, in addition to the death certificate and funeral bill, the Surrogate will require other documentation before processing a petition. If you have questions about being appointed as the personal representative of a loved one's estate, contact the trusts and estates attorneys at Gallivan & Gallivan today.

Hasan v. Sunharbor Manor et. al., 2013 NY Slip Op 32815(U)

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.