August 4, 2015

Plaintiff's Medical Malpractice Case Dismissed due to Expert's Use of Unproven Medical Opinion

The New York Supreme Court, Appellate Division, First Department affirmed a trial judge's order that granted the defendant's motion for summary judgment, dismissing a medical malpractice complaint.

The plaintiff was prescribed Lipitor and Azithromycin. Lipitor is FDA-approved to treat high cholesterol. Azithromycin is an anti-biotic used to treat bacterial infections. The plaintiff later suffered from bradycardia. Bradycardia is a slower than normal heart rate. The heart sends electrical signals between the upper and lower chambers of the heart that instruct the heart to contract. This is referred to as a heart beat. The upper chamber is called the atria, and the lower chamber is called the ventricle. When these electrical signals are blocked, the blockage is known as an atrioventricular block. Atrioventricular block can lead to fainting, dizziness, shortness of breath, and chest pain. The slowed heart beat can also lead to heart attack and death.

The plaintiff in this case suffered from atrioventricular block. He then filed a medical malpractice lawsuit against the prescribing physician, alleging that the two prescription medications had caused her condition. The defendant filed a motion for summary judgment, alleging that the plaintiff had failed to raise a triable issue of fact by failing to meet the requirements of medical malpractice lawsuits in New York. The trial judge agreed and dismissed the case. The plaintiff appealed, and the First Department affirmed the trial judge's decision.

When a defendant doctor files a motion for summary judgment in a medical malpractice lawsuit, he must establish in his motion that he has a prima facie entitlement to judgment as a matter of law because he used accepted medical practices to treat the plaintiff. Doctors owe a duty of care to their patients. This duty is to provide good and accepted medical treatment to their patients. If a doctor deviated from this treatment, either by employing a radical and unpopular treatment or by failing to act, the doctor can be liable for medical malpractice injuries.

Medical malpractice lawsuits require medical evidence and expert testimony. Not only must the medical records be examined and analyzed, but an expert will need to testify at trial and state whether, based on their expertise, the defendant had breached the duty of care. Because medicine is a very complex profession that requires years of education and training, courts rely on these medical experts to educate the jury on what exactly is accepted medical practice.

In a motion, the defendant can support his or her defense through affidavits, medical records, reports, and more. If the doctor meets the burden and establishes he did not depart from good and accepted medical practices, then the burden shifts to the plaintiff to show that there is a triable issue of fact in the case. This rebuttal also requires medical evidence that demonstrates both that the treatment departed from accepted medical practices and that this departure proximately caused the defendant's injuries. If the plaintiff submits the opinion of a qualified expert and that opinion states that the injuries were indeed the product of a departure from accepted medical practices, then the motion for summary judgment will be denied, and the case will proceed to trial.

However, if the plaintiff's expert's opinion falls outside accepted medical practice, it will be given no weight. Under what is known as the Frye test, scientific theories or medical procedures will only be accepted by the court as valid if they are generally accepted by the medical or scientific community. If the expert's opinion is unproven or not accepted by peers, the court cannot rely on that opinion for the basis of the plaintiff's opposition.

Here, the plaintiff's expert stated that the combination of Lipitor and Azithromycin caused heart block. The plaintiff also submitted case studies and articles that stated that some individuals suffer side effects from the two drugs. However, none of the cases linked the drugs to heart block. In addition, the court does not rely on case studies in making its decision. The Court found that the expert's opinion was not accepted in the medical community and was instead premised upon case studies that found no causal connection. As such, the doctor's motion for summary judgment was properly granted.

If you or a loved one suffered an injury during a medical operation or while in the hands of a doctor or nurse, you may have a valid medical malpractice claim. Call Gallivan & Gallivan to discuss your right to compensation.

Pullman v. Silverman, 125 AD3d 562 (1st Dept. 2015).

August 3, 2015

Nursing Homes Compete with Lavish Amenities for Short-Term Rehabilitation Residents

Nursing homes are restricted in the amount of Medicare dollars they receive from federal and state governments. In addition, a large portion of their income is generated by payments from residents for services and stays. Rather than increasing the level of care and access to medical personnel, some nursing homes have focused their attention on increasing unnecessary luxuries to attract more residents.

In 2011 alone, Medicare paid $2.8 billion towards hospital bills for injuries sustained in nursing homes. A 2014 Department of Health and Human Services study discovered that 22% of Medicare residents were injured by nursing homes during short stays.

The issue lies in the nursing homes' inability to properly care for residents with medical issues. Many residents are moved directly from the hospital to the nursing home, have severe medical needs, and require medical supervision and treatment while at the home. Most nursing homes do not staff doctors and have registered nurses available for only a small number of hours each day. As such, though nursing homes are meant to serve as rehabilitative facilities for short-term stay residents, many of the homes are not fit to provide for the rigorous demands of rehabilitation.

Nursing homes have been competing for Medicare dollars in the short-term stay area due to the hefty payouts. Medicare is health insurance for elderly citizens and will cover short-term stays. Medicaid is for indigent citizens and covers long-term stays. Medicare pays up to 84% more than Medicaid, so many nursing homes, especially for-profit homes, have shifted their attention to competing for short-term residents. In fact, many nursing homes have begun refusing Medicaid patients in order to reserve all room for Medicare short-term stay residents.
As part of this process, nursing homes must expend funds on adding amenities and services, meaning that costs must be cut in other areas. Some long-term residents may be pushed out too soon in order to make way for short-term residents.

As the baby boomers age and enter retirement, a real estate investment frenzy has begun. Investors are now fighting over nursing home sales. In 2014, the average price of a bed in a nursing home hit a whopping $76,500. The potential profits are significant, making nursing homes an attractive purchase.

Luxury services offered by many of these competing nursing homes include:

• Putting greens
• Indoor swimming pools
• Gyms and saunas
• Bowling alleys
• Field trips
• Car rentals
• Suites
• Restaurants catered by top chefs
• State-of-the-art technology

Many residents lured in by promises of lavish amenities later found that they had been duped by smoke-and-mirrors. For instance, one resident was promised round-the-clock medical care and "decadent hot baths" at the resident's demand. However, the resident never received her decadent bath. In fact, she was never given a single bath during her 1 month stay. As a result, she developed an infected bedsore that required her to be hospitalized.

Experts have labeled this bait-and-switch the "chandelier effect" because the nursing home will promise bells and whistles and instead continue to deliver sub-par care for high prices. By focusing on unnecessary luxuries, nursing homes are unable to provide the residents with what they really need - competent medical care. A resident enticed by the attractive amenities will soon find that they will be unable to enjoy any of the amenities if they don't receive proper care. In fact, many residents have died as a result of the substandard care in today's nursing home facilities.

If you or a loved one suffered an injury or wrongful death due to nursing home neglect or abuse, you are not powerless. You have legal options. The experienced nursing home lawyers at Gallivan & Gallivan can counsel you and your family, explain your potential claims, and help you fight for compensation. Call Gallivan & Gallivan today to schedule a free consultation.

Katie Thomas, In Race for Medicare Dollars, Nursing Home Care May Lag, The New York Times, April 14, 2015.

August 3, 2015

Nursing Aide Prosecuted for Brutal Assault against Resident of Nursing Home

The elderly victim of the assault was a resident of the West Lawrence Care Center in Rockaway, New York who suffered from osteoporosis, arthritis, and bone marrow disease. Due to her ailments, the victim was bedridden at the time of the assault. As such, she was unable to take care of herself on her own and depended on the assistance of nurses and nurse aids at the Rockaway facility.

Marie Jeanty from Queens was working at West Lawrence as a nursing aide. On August 15, 2014, while in the victim's room, Jeanty was attempting to change the victim's clothes and sheets. Jeanty became angry with the victim and punched her numerous times on the arm and shoulder. Jeanty then pushed the victim into the bed. The victim's face smashed against the bed rail. As a result of the assault, the victim's face and arm swelled, her body was covered in bruises, and she developed a black eye. She was transported to St. John's Episcopal Hospital for treatment.

Jeanty was arrested on Thursday, April 2, 2015 for the assault as part of an investigation conducted by The New York State Office of the Attorney General's Medicaid Fraud Control Unit, which is tasked with investigating neglect and abuse at nursing homes. Jeanty was charged with second degree assault and two counts of endangering the welfare of a vulnerable person. Second degree assault is a Class D violent felony, which faces 1 to 7 years in prison. Endangering the welfare of a vulnerable person can be a Class E or Class D felony, which faces 1 to 7 years in prison.

Following the investigation, Jeanty hired a criminal defense attorney and voluntarily turned herself in to the Office of the Attorney General. She was arraigned in Queens Criminal Courthouse and pled not guilty. The judge released her on her own recognizance.
According to A.G. Schneiderman, "When New Yorkers place those who mean the most to them in a nursing home, they should have confidence that their loved ones are not in danger of severe physical abuse."

Jeanty alleges that the victim's story is false. According to Jeanty, she was alone in the room with the victim, and the story alleged by the prosecutor is not accurate. Every defendant is innocent until proven guilty, and it is unclear what information or evidence the Office of the Attorney General has gathered as part of its investigation. Because Jeanty is refuting the allegations, she may reject a plea offer and instead proceed to trial on the charges.

At trial, the prosecutor will be tasked with proving beyond a reasonable doubt that she committed the offenses. If she is convicted, she will be sentenced to jail time. In addition, the victim will also have legal recourse for her injuries. The victim may bring a civil personal injury lawsuit against Jeanty and West Lawrence for the nursing home abuse.

Because the nursing home is paid in part by state Medicaid funds, the state of New York has a vested interest in ensuring that nursing homes are properly caring for their residents and that instances of abuse are swiftly punished. The Office of the Attorney General is the investigative and prosecuting arm of the state, and the Office's Medicaid Fraud Control Unit exclusively focuses on organizations such as nursing homes that receive funding from Medicaid. The unit's investigations involve allegations of medication pilfering, theft from Medicaid funds or residents' own bank accounts, physical and emotional abuse of residents, and neglect.

If you or a loved one has been abused while in the care of a nursing home, you need to contact the police immediately to press charges. You also need to contact an experienced nursing home attorney to advise you on how to proceed with a potential civil lawsuit. The nursing home attorneys at Gallivan & Gallivan have decades of combined experience fighting nursing home injustice. Call Gallivan & Gallivan today for a free initial consultation.

Eli Rosenberg, Queens Healthcare Worker Punched 80-Year-Old Bedridden Nursing Home: Officials, New York Daily News, April 2, 2015.

June 9, 2015

New York Ranked in the Bottom Ten for Nursing Home Quality

Nursing Home Compare is the federal government's rating system for long-term care facilities eligible for coverage under Medicare. The website recently underwent an overhaul over the past year when Medicare placed stricter requirements for each rating category. The current system uses a 5-star quality rating system. Previously, many nursing homes had 4 or even 5 star scores, making them appear to be attractive options for families. However, with the revisions came a startling plummet in the average score of nursing homes across the country and especially in the state of New York.

The revision adjusted algorithms to dock nursing homes based on issues with performance, staff quality, use of antipsychotics, and inspections. Nursing homes can be awarded 1 through 5 stars, with 5 stars being the most rare and coveted designation. After the revision, nursing home averages dropped. 40% of nursing homes in 11 states now have 1 or 2 star ratings. New York is one of these states.

The state of New York houses 625 nursing homes that are certified by Medicare. 41% of these nursing homes are ranked as 1 or 2 star facilities. In fact, more nursing homes in New York have a 2 star rating than a 5 star rating. This places New York in the bottom 10 for nursing home quality.

Nursing Home Compare allows individuals and their family members to quickly and easily compare certain metrics of available nursing homes. However, nothing is as informative as personally visiting facilities that interest you. Nursing Home Compare is unable to take into account certain factors that may be important to you in your decision making process, such as the distance from the nursing home to a family member's house or a hospital.

One growing concern with Nursing Home Compare is that it integrates self-reported data on quality of care, as calculated from surveys that the nursing homes complete. Nursing homes may skew their answers on these surveys in order to garner a better rating. By relying on these surveys, Nursing Home Compare's ratings may even be too generous. However, many nursing homes criticize the system for its reliance on state inspections. The nursing homes argue that each state has its own format for inspections and that inspection intensity and type varies across the country. As such, comparing state inspection results on the website is useless for individuals looking to compare nursing homes in multiple states.

Many residents highly value nursing home proximity to loved ones, and this will greatly limit the number of choices available to them, especially if they are in a less densely populated area. 1 or 2 star rated nursing homes may be the only types of facilities available to some individuals. Nursing Home Compare's website allows you to input your zipcode to see which facilities are available in your area. While the state of New York does have a large number of nursing homes, a search of the website reveals that many clusters of nursing homes are poorly rated.

Resident advocates argue that a lack of adequate staffing, lax laws on staffing, low salaries that result in high turnover rates, lax penalties, and state and federal officials' fear of displacing residents of poorly performing homes has led to many of the lower rated homes staying in business despite years of poor reviews and issues. Nursing homes fight back, stating that lack of Medicaid funding prevents them from providing the services necessary to fully care for residents.

Federal law mandates that a nursing home have a registered nurse on duty at least eight hours each day with a licensed vocational nurse available 24/7. However, experts agree that these laws should be broadened to require at least four hours of direct care for each patient every day.

If you or a loved one has suffered personal injuries due to nursing home abuse or neglect, contact the skilled nursing home lawyers at Gallivan & Gallivan today to begin pursuing your just compensation now.

Julie Appleby, A Top-Rated Nursing Home Is Hard to Find in Texas, 10 Other States, Kaiser Health News.

June 9, 2015

A.G. Schneiderman Prosecutes Nurse's Aid for Violent N.Y. Nursing Home Abuse

After a long investigation conducted by the Office of Attorney General's Medicaid Fraud Control Unit and the Division of Criminal Justice, A.G. Schneiderman announced charges against a former nursing home employee who allegedly beat a N.Y. nursing home resident.

Renee Geloso was a Certified Nurse's Aide at Valley Health Services, located in Herkimer, New York. While caring for a resident, Geloso became frustrated and violently hit the resident. Jordan Gonzalez, another nursing home employee, witnessed the incident and failed to report the nursing home abuse. An anonymous individual reported the incident to the New York State Office of the Attorney General, which organized a task force to investigate.

Geloso was arrested for Endangering the Welfare of an Incompetent or Physically Disabled Person in the First Degree and Willful Violation of the Public Health Law. Geloso faces up to three years in prison or five years on probation for the first charge and up to one year in prison or three years on probation for the second charge.

Gonzalez was arrested for lying to officials to protect Geloso and for failing to report the resident abuse as required by state laws designed to protect vulnerable nursing home residents. Gonzalez was charged with Falsifying Business Records in the First Degree and Willful Violation of the Public Health Law. Gonzalez faces up to three years in prison or five years on probation for the first charge and up to one year in prison or three years on probation for the second charge.

According to A.G. Schneiderman, "Caregivers are entrusted with an important responsibility to keep our loved ones healthy and safe. Those who violate this trust by deliberately harming a nursing home resident must be held accountable."

Both were arraigned in Illion Village Court. In addition to the criminal prosecution for nursing home abuse, the resident victim of the abuse will also have legal recourse for his or her injuries. The victim can file a civil lawsuit for personal injuries sustained in the beating.

When you have a loved one who lives at a nursing home or residential care facility, you can't be with them all of the time. While you undoubtedly worked hard to find a facility you trust to take care of your family member, you do not have control over what happens when you are not there, and you often don't know what happens when you are away. Many nursing home residents do not report abuse either because they are too scared to report or because they are unable to report due to being disabled or incapacitated.

Some common tell-tale signs of nursing home abuse include:

• Changes in mood or behavior: Your loved one is irritable and lashes out or acts strangely.
• Withdrawn and quiet: Your once-bubbly and talkative family member is now silent and withdrawn.
• Exhibits fear or paranoia: Your loved one acts scared, especially when a certain nursing home employee is around.
• Physical signs of abuse: Your loved one has bruises, scratches, cuts or burns that cannot be easily explained.
• Change in financial situation: If you have access to their bank accounts, you notice that funds have gone missing all of a sudden.
• A nursing home employee is hovering: When you visit, a certain nursing home employee is always around and within earshot, interfering with your visit to perhaps prevent your loved one from complaining of abuse.

If another individual witnesses nursing home abuse, they are mandated by the law to report it, even if they don't want to get involved.

If you suspect a loved one has been abused at a nursing home, you need a skilled personal injury attorney to investigate your claims and seek full compensation for your loved one's damages. The nursing home and employee should and can be held responsible. Call the dedicated and compassionate nursing home lawyers at Gallivan & Gallivan today to discuss your potential case.

Press Release: A.G. Schneiderman Announces Charges Against Herkimer County Certified Nurse's Aid Accused of Striking a Nursing Home Resident, New York State Office of the Attorney General.

April 20, 2015

Nursing Home Nurse Arrested for Stealing Narcotics from Facility's Pain Medication Supply

A supervising nurse at the Campbell Hall Rehabilitation Center has been arrested for stealing narcotics from the emergency supply cabinet at the nursing home.

Terri Stephens-Traverse was the supervising nurse at the Campbell Hall Rehabilitation Center in early 2013 when she began stealing oxycodone pills. The nursing home is located in Orange County in the Town of Hamptonburgh. As supervising nurse, Stephens-Traverse had unfettered access to the nursing home's emergency pain medication supply. The nursing home kept a small supply of various medications for its elderly residents for use in emergencies and to help fill new pain medication prescriptions. Stephens-Traverse pilfered a large quantity of pills for personal use.

pills5.jpgAs supervising nurse, Stephens-Traverse was tasked with maintaining records regarding access to this supply. Stephens-Traverse was also assigned to monitoring the inflow and outflow of all medications. To avoid being caught, Stephens-Traverse lied on the log book and forged signatures of other nurses. Thus, the records showed that medications were administered by other nurses to elderly residents when, in fact, Stephens-Traverse took these pills for herself.

The Medicaid Fraud Unit of the New York State Office of the Attorney General investigated this case and arrested Stephens-Traverse in conjunction with the theft of the narcotics. According to Attorney General Schneiderman, "Resident safety is jeopardized when those responsible for their care are under the influence of dangerous narcotics. Opioid medications are highly addictive, and they must be closely monitored. My office will continue to prosecute unscrupulous medical professionals who steal patient medication and compromise the care they receive."

Stephens-Traverse was arraigned in Hamptonburgh Town Justice Court before Judge Edward Souto. She was formally charged with Falsifying Business Records in the First Degree, Forgery in the Third Degree, Criminal Possession of a Controlled Substance in the Seventh Degree, and Petit Larceny. She was released on personal recognizance and is due back in court on May 27, 2015.

Falsifying Business Records in the First Degree is prosecutable under New York Penal Law 175.10. This crime is an "E" class felony, which is the lowest grade of felony. Under this law, a person is guilty when he or she intends to defraud others, either by intending to commit another crime or aiding or concealing the commission of the crime. Stephens-Traverse faces up to 4 years in prison if convicted of this crime. Forgery in the Third Degree is prosecutable under New York Penal Law 170.05. The crime is a misdemeanor and requires that the perpetrator intended to defraud, deceive or injury another when making a false statement on a document. Virtually any written document qualifies under this law, including computer data and identification cards. Criminal Possession of a Controlled Substance in the Seventh Degree is a misdemeanor prosecutable under New York Penal Law 220.03. This law simply criminalizes possession of illegal substances, and the prosecutor need only prove that the defendant unlawfully possessed the substance. Petit Larceny is akin to theft. It is a misdemeanor that requires the prosecutor prove only that the defendant stole someone else's property. All misdemeanors are each punishable by up to one year in prison. Stephens-Traverse therefore faces up to 7 years cumulatively in prison if found guilty.

Elderly residents in nursing homes rely on access to crucial pain medication in order to cope with debilitating diseases and illnesses. When a nursing home worker violates state law and nursing home policy and pilfers pain medication for personal use, nursing home residents are deprived of these critical medications. However, even more alarming is the potential for a nurse at a nursing home to be working and caring for patients while under the influence of a highly addictive narcotic. The risk of negligence, recklessness, and even intentional wrongdoing increases tenfold. While a nurse is under the influence, he or she is unable to properly care for someone or respond to emergency situations. This increases the danger of a nursing home resident being injured or even dying at the hands of a nurse under the influence of a controlled substance.

If you believe a loved one has been abused in a nursing home, don't hesitate to contact the New York nursing home abuse expert lawyers at Gallivan & Gallivan to discuss your claim today.

A.G. Schneiderman Announces Arrest of Nurse for Stealing Narcotics from Nursing Home

April 16, 2015

Attorney General Schneiderman Cracks Down on Medicaid Fraud

The New York State Office of the Attorney General is responsible for investigating and prosecuting a vast quantity of crimes in the state of New York. While many of the more widely publicized investigations involve drug distribution and conspiracies, Medicaid fraud has become a growing trend in the state of New York, and Attorney General Schneiderman has been doubling down on Medicaid fraud in the recent years.

The Office of the Attorney General now has a Medicaid Fraud Control Unit dedicated to detecting Medicaid fraud at doctor's offices, nursing homes, hospitals, non-profits, and more. State and federal taxpayer dollars fund New York's Medicaid program, thus fraudulent use of Medicaid funds wastes taxpayer money. In addition, it diverts much-needed funding from worthy programs and patients.

RAIN, or Regional Aid for Interim Needs, is a non-profit designed to provide services to the vulnerable elderly population. These services include home attendants, senior centers, Meals-on-Wheels, social services, and senior housing complexes. These services are funded in part by state Medicaid dollars. Beginning in 2003, RAIN's former Executive Director, Louis Vasquez, dipped into the Medicaid pot and diverted Medicaid funds from financing healthcare services for elderly residents in the Bronx to paying over $800,000 in mortgage payments for an empty building.

While Medicaid funds are commonly awarded to non-profits that qualify for them, these funds include limitations on their use. Non-profits enter into agreements with the NYC Human Resources Division. These agreements restrict the Medicaid funds to only covering services designed to help the elderly. Incidental expenses such as mortgages, office supplies, or employee paychecks cannot be paid for using Medicaid funds.

From 2003 to 2008, former Executive Director Vasquez used these Medicaid funds to pay the mortgage. In addition, Vasquez also used RAIN's corporate American Express credit card to charge thousands of dollars' worth of personal expenses. The Medicaid Fraud Control Unit, in conjunction with the New York City Department of Investigation, conducted an investigation into the fraud. RAIN agreed to settle with the state to avoid additional liability. RAIN agreed to pay back the entire $800,000 that was diverted from elderly services to mortgage payments. RAIN also agreed to implement internal controls and governance reforms to prevent reoccurrences in the future. Most importantly, RAIN agreed to change the members of the Board of Directors. Thus, on September 30, 2013, Vasquez was forced to resign. Vasquez is required under the settlement to pay back in full the American Express charges.

RAIN is a well-known and trusted non-profit in the Bronx community, and many elderly residents rely on the non-profit for much-needed services. These services are pertinent for the elderly residents' welfare. Some residents require around-the-clock care or frequent visits by home health aide nurses. Others utilize Medicaid benefits to supply elderly friendly housing. RAIN provides invaluable services to the elderly community, and when RAIN's funding is diverted to other areas such as paying mortgages, the elderly residents suffer.

Elderly residents are especially vulnerable because many rely on the benefits conferred by state Medicaid programs to get necessary medications, receive treatment, and obtain accessible housing. Sadly, Medicaid fraud is not a rarity. While whistleblower statutes have increased the prevalence of reporting, the Medicaid Fraud Control Unit at the Office of the Attorney General is growing increasingly busy with investigations.

In fact, while this case involved misappropriated funds, there are a plethora of other forms of Medicaid fraud. Common forms include: (1) billing for services that were never provided, (2) billing both Medicaid and private insurance, (3) billing for visits that never occurred, (4) billing for more time than was spent with the patient, (5) misrepresenting qualifications of health care professionals, (6) billing for name-brand drugs when generics were supplied, (7) billing for unnecessary tests or equipment, (8) billing for more tests or more comprehensive tests than were actually administered, (9) providing kickbacks to other healthcare partners, and (10) including costs for personal items in Medicaid reports.

If you suspect your health care provider, nursing home, non-profit service provider or pharmacist is violating the law and defrauding you, don't sit idle. Contact the New York Medicaid fraud expert lawyers at Gallivan & Gallivan today or make a complaint directly to the New York State Office of the Attorney General.

A.G. Schneiderman Announces $800,000 Settlement with Bronx Nonprofit that Diverted Money Intended for Services for Elderly

April 16, 2015

New York Disability Nonprofit to Repay $363,000 due to Medicaid Fraud

New York's state Medicaid system is designed to provide health care-related services to some of New York's most vulnerable populations. One such population is people with developmental disabilities. The Office for People with Developmental Disabilities is tasked with coordinating services either directly or through a network of Medicaid-funded nonprofits. Over 700 nonprofits currently exist in New York to serve those with developmental disabilities, and these 700 nonprofits provide approximately 80% of all services.

elderly woman.jpgDevelopmental disabilities include intellectual disabilities, cerebral palsy, Down syndrome, autism, and other disabilities. This vulnerable population relies on Medicaid-funded services, which include long-term care services, habilitation, clinical services, residential support and services, residential schools, institutions, and developmental centers. In addition, the Office for People with Developmental Disabilities provides support to families to educate them on and assist them with caring for loved ones who have developmental disabilities.

While many individuals with developmental disabilities have a strong family support system to help care for them and provide much-needed services, many individuals also rely on the care and services of non-profits funded by Medicaid under the Office for People with Developmental Disabilities. One such nonprofit is Fishkill-based Keli House Community Services.

Keli House strives to provide services to people with developmental disabilities and their families in order to decrease institutionalization rates. These services include assessing the person's needs and then connecting them with invaluable programs. Despite its noble goal, Keli House was accused by the New York State Office of the Attorney General with violating its mission and violating Medicaid restrictions by hiring unqualified employees.

As an aside, in order to maximize the help it can provide these vulnerable residents and their families, the Office for People with Developmental Disabilities has put in place strict rules that govern all of the 700 nonprofits that provide services under its umbrella using Medicaid funds. One such rule is that all individuals who are employed by the nonprofit in coordinating services for the population must meet strict qualification standards regarding education and experience. The Office requires that each coordinator have at least an associate's degree in health or human services and either one year of experience working with persons with developmental disabilities or one year of experience with service coordination. Finally, all service coordinators must complete a rigorous training program that has been vetted by the Office.

In violation of the rule, Keli House employed 10 service coordinators, 9 of whom were unqualified. While some of the coordinators had absolutely no prior experience, others held degrees in unrelated fields. The Medicaid Fraud Control Unit, in conjunction with the Justice Center for the Protection of Persons with Special Needs, conducted the investigation into Keli House. In response to the allegations, Keli House agreed to settle for $363,643.

While Medicaid fraud is one such way that individuals with developmental disabilities are targeted, a more direct form of harm is through caretaker abuse. Persons with developmental disabilities are especially vulnerable to abuse because many of them are unable to comprehend or understand the situation. In addition, many of them are powerless to fight against the abuse. Abuse may occur in institutionalized settings or even in special education classes or in the home. Common signs of abuse include withdrawn or antisocial behavior, depression, fear, unexplained anger, avoidance behaviors, regression, signs of physical trauma such as bruises, and any inappropriate behavior or conversations between the patient and their caretaker.

Unfortunately, abuse is rampant in the developmental disability community, and it is imperative to catch the abuse early to stop it. Report any suspected abuse or Medicaid fraud to the Office for People with Developmental Disabilities. Then call the experienced caretaker abuse lawyers at Gallivan & Gallivan today to discuss your potential claim.

April 16, 2015 Revamps Ratings System for Nursing Homes's website has a useful tool titled Nursing Home Compare that helps individuals compare information about every Medicare and Medicaid-certified nursing home in the country. Nursing Home Compare includes detailed information about each nursing home, including types of skilled care provided (e.g. intravenous injections or physical therapy), any health and fire-safety inspection issues, staffing information and qualifications, any penalties assessed against the nursing home, and quality ratings.

While Nursing Home Compare and its quality ratings system is not new, recently revamped its rating system to be more stringent. Prior to the revamp, there were a plethora of 5 star nursing homes in the state of New York. However, many individuals found that when they went to visit and tour these facilities, they were not deserving of their 5 star rating. now incorporates 2 quality measures for use of antipsychotics, requires a greater number of points to reach each star level, and uses a different scoring method for rating the staff. As such, many nursing homes dropped in star ratings. 28% of nursing homes nationwide dropped at least one star rating. In fact, 40% of Hudson Valley nursing homes dropped at least one star. These drops were not due to changes in the quality of the nursing home's care but rather the change in the ratings system. Prior to this revision, a whopping 70% of all nursing homes scored 4 or 5 stars, the top scores. Now, that figure hovers around 50%.

By working to counteract inflated ratings, has produced a more useful and realistic ratings system. In addition, expectations regarding quality of care have changed. Elderly residents are now demanding upgraded facilities, rehab and physical therapy, concierge services, gymnasiums and swimming pools, more scenic locations, roomier accommodations, and state of the art equipment. While top doctors and nurses, as well as comprehensive medical care, are always in high demand at nursing homes, the trend has been an increased focused on ancillary services that set the nursing home apart from its competitors.

If you or a loved one are looking for a nursing home in the New York area, a variety of different tools exist aside from the Nursing Home Compare website to help you in evaluating different nursing homes. One such tool is lohud's map of nursing homes, found at The map shows every Medicare and Medicaid-funded nursing home in New York, color-coordinated by star rating. You can also color code the map based on number of stars assigned in various categories, such as health inspection, quality measures, and staffing rating. You can also color code the map based on whether anti-psychotic drugs are used against patients for both short and long-term stays.

Another helpful tool is George Coniglio's guide to evaluating nursing homes during visits. Coniglio is a nursing home ombudsman who evaluates nursing homes and investigates complaints. He advises that when touring a facility for the first time, check to see if the facility is clean and organized. He recommends observing staff interaction with patients. Does the staff seem hurried? Are they polite? Are they responding to patient requests? In addition, how are the staff when interacting with each other? Coniglio also recommends that individuals confront nursing home administrators about any black marks that appear in their ratings, such as penalties or health inspection failures. If you do finally decide on a nursing home, visit often. Not only does visiting often raise the spirits of your loved one in the nursing home, but it also raises the level of care. Nursing home staff know you are involved and paying attention and are therefore more likely to treat your loved one well. And if the nursing home is doing something wrong or you suspect abuse, don't be afraid to speak up!

If you or a loved one is being abused at a nursing home, don't hesitate to contact the New York nursing home expert attorneys today at Gallivan & Gallivan to review your potential claim.

April 16, 2015

Study Finds Signs of Alzheimer's in 20-Year-Old Patients

In a recent post, we examined a Mayo Clinic study linking a toxic protein in the brain to the development of Alzheimer's Disease. Though commonly associated with senior citizens, Alzheimer's is no longer just for the elderly. A study conducted by Northwestern University and reported on Yahoo! by Cassie Shortsleeve recently discovered that patients as young as 20 may begin exhibiting signs of early onset Alzheimer's.

Amyloid protein, a sticky, toxic protein that clumps in the brain and binds to neurons, inhibits neurons from performing their memory storage and retrieval functions. The prevalence of amyloid protein in the brain has long been suspected as being the root cause of Alzheimer's and dementia. The Northwestern University study found that amyloid begins clumping in brains of even "normal" young people.

The researchers dissected 50 brains as part of the study. Approximately one fourth belonged to healthy young people as young as 20, one third belonged to people over the age of 70 without dementia, and one quarter belonged to people over the age of 60 with Alzheimer's. The amyloid brain scans showed that amyloids began clumping in the brains of the healthy young people despite their age. While clumping was more prevalent in the brains of older Alzheimer's patients, this study revealed that the disease may begin early and progress very slowly before being detected by doctors.

The researchers hypothesize that neurons are susceptible to amyloid clumping at any age, and that while most of the more drastic clumping occurs in old age, the substance needed to form the clumps is present at any age, with the susceptibility to form clumps worsening over time. While there has been an increasing focus on Alzheimer's research as of late, science has not yet conquered the disease. Treatment options do exist to slow the progression or lesson the symptoms, but no cure is yet available.

In addition, while scientists may be able to determine what makes individuals more susceptible to Alzheimer's (such as a greater concentration of amyloids), scientists do not know how to prevent the onset of the disease. One of the biggest predictors of Alzheimer's is one's general health. Several other health issues such as diabetes, heart disease, obesity, and pulmonary disease go hand-in-hand with Alzheimer's.

The results of this study are shocking but helpful. Because amyloids are present in even young individuals, it is imperative to take care of yourself. Doctors recommend that people maintain a healthy, balanced diet that is rich in protein, fruits, and veggies with modest amounts of whole grains. Doctors also recommend a daily exercise routine. Research has shown that even walking has improved mental capacity. Doctors also recommend training the brain. Individuals who challenge themselves with puzzles, memory games, or analytical problem solving activate spheres of the brain, leading to a lower risk of developing Alzheimer's. Finally, doctors recommend that people think positively. Research has shown that negative thoughts actually impact neural function and cognitive organization.

Despite the ramifications of this study, Alzheimer's disease remains largely a dilemma for older persons, many of whom live in nursing homes. Alzheimer's sufferers are especially vulnerable to nursing home abuse because the cognitive issues caused by the disease may prevent them from either recognizing abuse or reporting it.

Nursing home abuse can take many formats. These include physical injuries, emotional trauma caused by verbal attacks, neglect, confinement, intentional or negligent financial abuse, sexual abuse, and intentional deprivation of necessities. Because an individual with Alzheimer's may be unable to detect or report abuse, it is important to recognize key signs of abuse. These include signs of physical injury such as bruises and cuts, depression, antisocial activity, unexplained loss of money, poor hygiene, bedsores and pressure ulcers, weight loss, signs of fear or paranoia, and arguments witnessed between the caregiver and patient.

Nursing home abuse can be hard to detect. Caregivers often spend large quantities of unsupervised time with the patient, during which they may be abusing the patient. However, when friends or family members are present, the caregiver appears nurturing and caring despite signs of abuse. It is not your job to investigate the abuse. If you suspect a loved one with Alzheimer's is being abused at a nursing home, contact the New York nursing home lawyers at Gallivan & Gallivan today, and we will investigate your claim for you.

April 15, 2015

Rockland Nonprofit Charged with Forging Medicaid Claims and Lying in Medicaid Audit

The nonprofit Mental Health Association of Rockland County, Inc. has agreed to settle with the New York State Office of the Attorney General for $304,000 in response to allegations that the nonprofit altered Medicaid records. In its settlement agreement, the nonprofit admitted to the allegations and accepted responsibility for its actions.

Medicaid is a state and federal taxpayer-sponsored program in the state of New York. Nonprofits that provide healthcare services to vulnerable and indigent populations such as those with mental health issues are eligible for funding from Medicaid. Medicaid funds can only be used to cover services and equipment associated with its mission. Ancillary costs and fees, such as rent or payroll, cannot be covered with Medicaid funds. Generally the facility will bill Medicaid directly for visits, treatment, procedures, services, and more. Medicaid then reimburses the facility.

Mental Health Association of Rockland County overcharged Medicaid for patient visits by inflating the number of hours that patients spent at the health center. In order to bill Medicaid for patient visits, the health center documented the number of hours spent in the Continuing Day Treatment Program, a mental health treatment program for adults, each day.

cash.jpgThe health center was able to continue this practice undetected until the Office of the Medicaid Inspector General initiated a routine audit in 2009 of the Continuing Day Treatment Program. The Inspector requested all records relating to this program, including records that logged the number of hours each patient spent in the program. In order to match the number of hours submitted to Medicaid for billing purposes with the number of hours logged in the records, the managers and employees began altering and falsifying records to inflate the number of hours reported in the log books. For instance, on some forms, days and hours were added; on other forms, the employees changed the number of hours logged. In all, over 40 changes were made to these records. After combing through the records and making handwritten changes, the health center then provided the revised notes to the auditors. The records encompassed years 2003 to 2008.

Despite the glaring discrepancies and alterations on the audit, it was not until two former health center employees reported the Medicaid fraud via a whistleblower lawsuit that the Office of the Medicaid Inspector General and the New York State Office of the Attorney General's Medicaid Fraud Control Unit began investigating the allegations. The Attorney General then found evidence that the health center had altered the records so that they would appear to support Medicaid claims submitted between 2003 and 2008.

The whistleblower statute in New York is known as the New York False Claims Act. Parties are liable under this statute when they present false or fraudulent claims, such as false Medicaid claims, to the state or local government. Private plaintiffs, known as whistleblowers, are able to file lawsuits under this act. Whistleblowers are usually current or former employees with inside information about the organization's practices. The offender must pay fines for each violation, as well as damages up to three times the amount of the actual harm. The whistleblower is rewarded for reporting the violations by receiving 15 to 25% of the damages if the Attorney General intervenes. If the Attorney General does not intervene, then the whistleblower can receive a whopping 25 to 30% of the recovery. In addition, this statute protects the whistleblowers from retaliation from current and former employers.

The underlying whistleblower case filed by ex-employees has been resolved as part of this settlement agreement. Mental Health Association of Rockland County is to pay $250,000 for the violations done under state and federal False Claims Acts. In addition, the health center is to pay $54,000 for failing to keep any notes, records, or treatment plans involving various Continuing Day Treatment Program participants who were funded by Medicaid.

If you or a loved one is being abused by a facility funded by Medicaid, you have options. You can report the suspected abuse to the New York State Office of the Attorney General. You can also call the New York Medicaid abuse lawyers at Gallivan & Gallivan today to discuss your potential claim.

April 14, 2015

Mayo Clinic Study Breakthrough: Alzheimer's Is Linked to Toxic Proteins in the Brain

A large scale Mayo Clinic study recently conducted produced shocking results - the toxic protein tau may be responsible for Alzheimer's and cognitive degeneration.

For the past several decades, neurologists and researchers have focused on amyloid, a toxic protein found in the brain that was thought to contribute to cognitive decline, the hallmark of Alzheimer's disease. However, in a groundbreaking new study, Mayo Clinic researchers have found that another toxic protein may be the true culprit.

The researchers surveyed over 3,000 brains of deceased individuals that had been donated to the Mayo Clinic. Approximately one third of these belonged to Alzheimer's patients, though these patients had died at different stages of the disease and at different ages. Using these brains, the researchers were able to map out key characteristics of Alzheimer's sufferers, as well as a timeline for cognitive degeneration.

Tau and amyloid proteins were both found in the brains of Alzheimer's sufferers. However, this long-range, large-scale study allowed the researchers to finally evaluate the impact of these proteins throughout the lifecycle of the disease. Using a scoring rubric for the two proteins, the researchers found that the prevalence of tau and not amyloid was the key predictor for Alzheimer's. Using the severity of tau, the researchers were able to map out the predicted age of onset of cognitive deterioration.

One shocking discovery of the study showed that amyloid can be present in vast quantities in brains of older individuals who do not have Alzheimer's or mental degeneration. This has led researchers to believe it is tau and not amyloid that is causing the memory decline prevalent in Alzheimer's patients. Tau appears to kill neurons while amyloid appears to cause neurons to miscommunicate. The researchers liken this to the sufferer's inability to save or store memories due to tau, whereas amyloid appears to only cause issues with retrieving memories that are in fact stored somewhere in the brain.

Despite the groundbreaking nature of the findings, the medical world is currently ill-equipped to treat issues caused by tau. In fact, the medical world does not currently have means of conducting tau brain scanning to detect prevalence of tau. While amyloid brain scanning has been popular in the medical community for a while, it is now imperative for the field to develop means of utilizing the findings of this study to detect tau in order to earlier diagnose and treat Alzheimer's.

elderly couple.jpgAlzheimer's is a deadly brain disease. Named after a German psychiatrist who first identified the disease in a patient in 1901, it is a form of dementia that destroys memory and cognitive function and accounts for up to 80% of dementia cases. Ten percent of the world's population over 65 is afflicted with Alzheimer's disease. Early onset Alzheimer's is usually not detected. The disease begins with mild forgetfulness or confusion, then progresses to an inability to remember old or even recent memories. Sufferers have difficulty organizing thoughts and recognizing once well-known people, places or things.

At this time, there is no cure for Alzheimer's, thus it is imperative that the disease is detected as early as possible and correctly diagnosed. Some medications may help ease the memory symptoms. In addition, doctors recommend memory drills, as well as a healthy diet with exercise.

Individuals with Alzheimer's are especially vulnerable. Therefore, it is important to ensure they are receiving proper diagnosis, care, and treatment. Alzheimer's patients may run into issues with misdiagnosis or ineffective treatment plans. In addition, due to their limited cognitive function in late-stage Alzheimer's, many sufferers are susceptible to abuse in nursing homes. These sufferers are especially defenseless to nursing home abuse because they either do not remember the abuse or cannot comprehend it when it occurs.

If you believe a loved one suffering with Alzheimer's disease is being abused by nursing home staff, please contact the experienced New York nursing home attorneys at Gallivan and Gallivan today to discuss your potential claim.

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.