New York Nursing Home Abuse Lawyer Blog

A jury has awarded $5.4 Million dollars to Robert Messina, a resident of Staten Island. The verdict stems from Messina's development of pressure ulcers during several stays between Staten Island University Hospital and Golden Gate Rehabilitation and Health Care Center between 2006 and 2007. The jury found SIUH 75% responsible, and Golden Gate 25% responsible. Messina has been restricted to using a wheelchair for the past five years, his confinement the result of bedsores that led to a bone infection in his hip. According to his attorney, Mitchel Ashley, Mr. Messina had no skin breakdown at the time of his first admittance to SIUH. Regardless of fault, the debilitating effects of the bedsores have proven to be a significant hinderance to Mr. Messina's quality of life, and certainly that played a part in the jury returning such a substantial verdict.

Additional medical conditions suffered by Mr. Messina (found in the article linked below) put Mr. Messina at risk for the development of bedsores. In our view, the presence of underlying conditions that put Mr. Messina at risk should have made the facilities more vigilant with respect to the assessment, care planning and implementation of appropriate interventions to prevent the development of ulcers. Despite the underlying conditions, the jury found that SIUH did not provide the requisite level of due care guaranteed as a patient right. Whatever the result of the appeal, hopefully Mr. Messina can return to some level of normalcy in his daily life, and avoid future health complications resulting from these incidents.

Website Resource: $5.4M medical malpractice award for Staten Island man

The Long Term Care Community Coalition recently released its report on New York enforcement actions for the period 12/16/10 - 3/15/11. Included in the report were the following instances of nursing home neglect and abuse:

At Terence Cardinal Cooke HCC in Manhattan, LPN Coral Quintyne, gave methadone to the wrong resident, who had to be hospitalized. She did not report her error and falsified documents in an attempt to cover it up. On 2/4/2011, she was sentenced to six months incarceration.

Certified Nurse's Aide, Esmeralda Laureano, at Rockaway Care Center, LLC in Queens stomped on the chest of an 80-year old resident who was lying on the floor after he refused to follow her instructions. On 3/1/2011, she was sentenced to a term of 3 years probation with anger management classes as a condition of probation.

At Diamond Hill Nursing and Rehabilitation Center (formerly Northwoods Rehabilitation and ECF-Troy) Certified Nurse's Aide, Jessica Tremper, falsely documented in the medical record that she turned and repositioned a resident. Turning and repositioning is considerd the most important intervention is the prevention of the development and deterioration of bedsores (pressure ulcers, decubitis ulcers). On 3/4/2011, she was sentenced to a one-year conditional discharge, 40 hours of community service, and surrender of her CNA certificate.

Certified Nurse's Aides, Janine Fedigan and Brandy Peterson, at Finger Lakes Center for Living in Auburn were sentenced to a one-year conditional discharge and surrender of their CNA licenses. In violation of the care plan, CNA Fedigan transferred an 80-year old resident out of bed alone, took resident to the toilet, and tried to apply his leg brace, which caused the resident to tip over in his wheelchair, hit his head and suffer a skin tear. CNA Fedigan and CNA Peterson picked him up and told resident and his wife not to tell anyone what had happened. CNA Fedigan claimed it happened while the resident was in the bathroom.

The Long Term Care Community Coalition (LTCCC) has just released a major report, funded by the Robert Sterling Clark Foundation, on the state of assisted living care and oversight in New York State. The report found that many adult homes, enriched housing and assisted living residences are violating the state's care rules and are either harming their residents or putting them at risk for harm and that few facilities causing harm or risk of harm had an enforcement action taken against them unless they actually endangered their residents.

The study uncovered numerous reasons for these findings and presents recommendations for changes, including:

· The state does not require residences to train their care staff with a mandated training curriculum; better training of direct care staff must be encouraged, particularly for individuals dealing with medication by mandating a specific curriculum.

· Administrators are not required to be licensed; the state must require licensure; running an adult home or assisted living residence, especially an impacted home or one that has special/enhanced needs certification, requires specific training and competencies and oversight.

· Facilities are now only required to give 3.75 hours of personal care per week to each resident. This is not enough time to care for many residents, especially those on multiple medications; the state must require facilities to provide residents with additional hours of care per week.

· Many facilities violating the rules and regulations cannot be fined because state law does not permit the Department to sanction them if they correct within 30 days (except for an endangerment violation); social services law must be amended to permit such sanctions.

· State law permits only per day fines and only up to $1000 a day fines for violations; per violation must be permitted in addition to per day fines and the amounts must be increased.

· There are too few attorneys to prepare enforcement cases; the NYS Legislature and the Governor must allocate sufficient funds to ensure adequate inspection and enforcement in the Department's budget.

Today, June 15, 2011, is the sixth annual World Elder Abuse Awareness Day. It falls in the middle of World Elder Abuse Awareness Week, which commenced on Monday. While it is important to specify a day or week in which to give attention to the cycle of abuse that many elderly in society face, it is also imperative to remember that this abuse happens every day. We must remain vigilant as a society in an attempt to eliminate elder abuse.

As this blog has chronicled in the past, elder abuse occurs in many forms: physical abuse, emotional abuse, sexual abuse, and financial abuse, to name several. Unfortunately, often this abuse does not occur at the hands of an unkown hospital or nursing home aide, but rather at the hands of family members.

World Elder Abuse Awareness Day helps to raise the public profile of the growing ubiquity of elder abuse. Events such as this, as well as celebrities such as Mickey Rooney speaking about their own experiences, will hopefully bring an awareness of the perils that our elderly citizens face. If you suspect that someone you love has been a victim of elder abuse, please contact the proper authorities as soon as possible. With the proper level of awareness, perhaps someday we can bring an end to elder abuse in its many forms.

A nursing home aide was recently convicted of sexually abusing an 61-year old stroke victim at Amsterdam Nursing Home on Manhattan's Upper West Side. The aide was convicted of sex abuse, endangering the welfare of a vulnerable elderly person, and endangering the welfare of a physically disabled person. The aide was caught in the sexual act while under assignment to care for the victim.

It is not very often that this section of the blog crosses over from civil to criminal offenses. In a case as egregious as the one linked below, it is a necessity. According to Section 260.25 of the New York Penal Code, "[A] person is guilty of endangering the welfare of an incompetent or physically disabled person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect." A vulnerable elderly person is defined as: "a person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by demonstrable physical, mental or emotional dysfunction to the extent that the person is incapable of adequately providing for his or her own health or personal care." Certainly, a 61 year old incapacitated stroke victim falls under this definition of vulnerable elderly person.

In many instances, injuries suffered by elderly or incapacitated residents of nursing homes are the result of negligence on the part of the staff, their assigned caregivers. Occasionally, however, the offense crosses the line and becomes not only a civil offense, but a criminal offense as well. In such cases, criminal charges must be pursued, above and beyond a civil case, in order for justice to truly be served. That said, the facility can be held civilly responsible for the acts of the employee that committed the offense if that employee had a history of being physical or sexually aggressive and/or if the facility failed to conduct a proper background check before hiring the individual. Sexual abuse is also prohibited by the state (NYCCR) and federal (CFR) rules and regulations we often reference here on the New York Nursing Home Abuse Lawyer Blog.