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Legal Representation

The attorneys at Gallivan & Gallivan provide effective, aggressive representation to individuals injured in the New York area. Our priority is to maximize the recovery of our clients injured due to the neglect of others.

Nursing home staff members were accused of violating a resident’s privacy by posting degrading photographs and videos on social media. Jane Bosquet, a 76 year old woman suffering from dementia and Parkinson’s disease and resident of Wingate Belvedere in Lowell, Massachusetts had “unflattering” photographs of her taken and posted on Snapchat by two nurses’ aides. Sabrina Costa and Kala Lopez violated the rights of several vulnerable elderly women, all of whom are suffering from dementia. Costa and Lopez apologized to their victims’ families in court last month as they pled guilty to elder abuse; however their words reportedly did little to comfort the families. Jay Bosquet, son of Jane, stated the aids abused their responsibilities and trust they were given. Jay Bosquet remembers his mother as vibrant and funny, but she has not been the same since the incident. He is heartbroken by what happened to his mother. Continue reading

Holiday Manor Care Center, a nursing home in California, was fined $100,000 as a result of a resident’s death at the facility. The facility was found to have several deficiencies in the way the staff cared for the patient who had a known risk for falls.

The resident was admitted to the facility in August 2014 with diagnoses of confusion, impaired vision, and unstable balance.  She required assistance when walking. On September 8, 2014, the resident attempted to get out of bed on her own without supervision and fell.  A staff member noticed her on the ground and documented the fall.  The notation indicates she was found on the floor moaning with a bump on the right side of her head and a blueish discoloration.  Nine days later the resident died; she suffered a hemorrhage in the brain and the cause of death was blunt force head trauma. Continue reading

The Centers for Medicare & Medicaid Services (CMS) created the Five-Star Quality Rating System in order to help consumers, families, and caregivers compare nursing homes easily and help identify areas they may have questions about. The site rates each nursing home on a scale of 1 to 5; nursing homes with 5 star ratings are considered to be above average quality and homes with a 1 star rating is considered to have lower than average quality.  In order to obtain a high rating from CMS it is important to have adequate measures in place in order to that focus on prevention and early detection for wound/skin care, falls, and urinary incontinence. It is also important to have measures in place that focus on weight loss, dehydration, infection, and dementia care.

A bill proposed in October 2015 called The Nursing Home Accountability Act set forth guidelines that would make a nursing home facility with two or less stars ineligible for a future mortgage/loan.  This method is far more stringent than the  current Housing and Urban Development (HUD) standards.  HUD is a major lender for nursing home facilities.  Although this legislation is not likely to pass, it provides a glance into possible future legislation surrounding this topic.
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Governor Cuomo’s administration has approved an $850 Million nursing home settlement, to be divided between New York State’s 600 nursing facilities.  This would be welcome news if the money was to be allocated for additional staffing or services for the residents.  Unfortunately, however, there do not seem to be any pre-requisites or mandates regarding how the money must be spent.  This will allow less scrupulous owners to line their pockets.

The funds are being provided to all NY nursing homes despite federal regulators’  findings that 2/3 of the state’s facilities are below average. The NBC I-Team analysis found that more than 230 of the 600 homes set to receive part of the settlement have inspection ratings of one and two stars out of the Centers for Medicare and Medicaid Services (CMS) Five-Star Quality Rating System. Richard Mallot, Executive Director of the long Term Community Coalition, questioned why the state would give some of the country’s worst nursing home facilities money, suggesting that money should be taken away from these facilities.  Continue reading

Woodbriar Health Center of Wilmington, Massachusetts faces up to $100,000 in fines following the death of a resident that resulted from a fall on Christmas day of 2015. The nursing home has been accused several times of poor care by the state and families of residents. An 83 year old resident, Mary Meuse, was dropped from a mechanical lift that caused her to break both her legs and led to her death 2 days later. The staff at Woodbriar did not notify Meuse’s family for 24 hours although they were aware of her condition at the time of incident. The nursing home is now facing fines of $250 to $3,000 a day in the wake of Meuse’s death; if the fines begin from December 25, 2015, the facility could face up to $100,000. Continue reading

Monroe County nursing homes have been cited for numerous deficiencies that often place residents at risk, yet they are still open for business; a Rochester nursing home remained open for two years after receiving chronic violations from the government. Democrat and Chronicle, a newspaper in Rochester, NY found that more than 1/3 of violations received have been cited by Department of Health (DOH) inspectors during previous or checkup inspections (repeat offenses). In some instances, the conditions that led to repeat citations were the basis of wrongful death lawsuits.

reportThere are 34 nursing homes in Monroe County, all of which were cited for a total of 768 state and federal violations during the period of 2012 to 2015; 38% of those citations were repeat deficiencies. The DOH is supposed to ensure that nursing homes comply with regulations of minimum standards of care by making random visits every nine to 15 months and posting the results of inspections online.  However, many believe this method is not enough and the state should do more as a means of enforcement. Rose Marie Fagan, a citizen of the town of Victor said that there is no reason for less than excellent nursing home care and that the community should demand better for the elderly. Continue reading

According to a Propublica article,New York State’s oversight in the field of nursing care in considerably more lenient when compared with other states in the country. Over the past 15 years, nursing boards around the country have taken steps to tighten the screening process of nurse applicants before issuing licenses and implemented stricter punishments for abusers.  New York is seemingly far behind in this process. In New York, applicants are not subject to background checks or fingerprinting when applying for a nursing license; these are procedures used to identify criminal backgrounds and the possibility of legal issues. In addition, it often takes years to discipline nurses that provide substandard care, steal medicine, or physically abuse residents.

Nursing licensure is overseen by the Office of the Professionals (OP), which falls under the Department of Education and Board of Regents (BOR). The OP is allowed to take immediate action against nurses accused of endangering the health and safety of the public, however, in the past they have failed to do so.  The Propublica investigation found that the OP often fails to act when they are notified that a nurse has been disciplined by another agency or state. Nursing applicants and nurses are expected to self-report criminal convictions on their application, however many do not, which is why background checks and fingerprinting would be a useful resource. Peggy Chase, a member of the New York nursing board, also part of the OP, stated that there are blind spots in the system and the issue of background checks has never been mentioned at one of their meetings.  Continue reading

The Department of Justice (DOJ) announced the creation of regional task forces whose objective will be to toughen enforcement against nursing homes providing substandard care. This initiative was launched in accordance with the DOJ’s Elder Justice Initiative and is expected to include members from the U.S. Attorney’s Office, Medicaid Fraud Control Units, state and local prosecutor’s offices, Department of Health and Human Services, state Adult Protective Services, Long-Term Care Ombudsman, and law enforcement. These groups will come together to exchange information and share their concerns on substandard nursing homes with hopes of resolving these issues in a timely and effective manner.

Benjamin Mizer, Principle Deputy Assistant Attorney General, used the 2014 Extendicare Health Care Services case as an example of a similar collaboration that was successful. Extendicare and its subsidiary were billing Medicare and Medicaid for substandard nursing care, unnecessary rehabilitation therapies, not following protocol to prevent pressure ulcers and falls, and not having enough nurses to care for patients; the company was able to work with the federal government and eight states and settle the case for $38 million. The DOJ worked closely with other agencies and state governments in this case to come to an agreement and Mizer hopes to expand this model of federal-state collaboration through the task forces. Continue reading

There are around six million cases of elder abuse in the United States each year.  Five states account for more than 1/3 of those cases.  New York is one of the five states. A report released in 2013 identified five obstacles prosecutors faced in handling elder abuse cases, which was the impetus for new bill that would help victims of elder abuse testify against their abusers in criminal proceedings. The bill states that based on certain conditions, witnesses of advanced age will be able to be examined before a trial starts in order to preserve their testimony for future use in criminal court.

Current legislation only allows elders to be examined conditionally if they suffer from demonstrable physical illness or incapacity at the time of application; however this is useless in some cases.  For example, a man in his 90’s who was a victim of theft by his home aide, but in good health for his age at the onset of his claim may be deceased before the case is presented to the Grand Jury.  In the specific instance discussed in the article, the aid confessed to committing the crime which allowed the elder abuse case to be prosecuted.  However if she had not confessed the DA would not have been able to prove its case.

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N.Y. Comptroller Thomas P. DiNapoli made several recommendations after his audit of the Department of Health (DOH) performed on February 19, 2016. DiNapoli met with senior citizen advocates in Albany and discussed improvements needed to enforce nursing home violations. One of the major problems with enforcement is the delay in assessing fines after violations are found.

Statistics show that there has been a significant decline in the amount of nursing home violation fines collected over the past three years. In 2011, the DOH collected $628,000 in fines from nursing homes; in 2014, that number decreased to only $152,000. This is a result of fewer fines being issued and an increase in the amount of time it takes the DOH to issue a fine from six months in 2007 to almost four years in 2014. Continue reading