New York Nursing Home Abuse Lawyer Blog

President Obama's Health and Human Services Secretary, Kathleen Sebelius, has followed up on the President's promise to find new and effective methods of treating Alzheimer's disease. Sebelius discussed President Obama's increased funding for research on Alzheimer's, saying that "[T]his isn't just another strategy to be published and sit on a shelf." The funds will be allocated toward treatments, preventative measures, and public knowledge, among other areas.

This will come as welcome news to the many families suffering from this disease (the Alzheimer's Association estimates approximately 5.4 million cases of Alzheimer's nationwide in 2011). Regardless of the ability to prevent and treat the disease, at the very least an increased awareness of Alzheimer's and its effects will potentially lead to a greater level of understanding among those tasked with caring for our nation's elderly. Secretary Sebelius' dedication to funding this disease is certainly a step in the right direction for treating those afflicted.

Resource: Medpage Today, Emily P. Walker, April 25, 2012

The death of an elderly St. Louis nursing home resident has prompted a lawsuit against the facility. Aubrey Giles, who suffered from dementia, went missing from the Midwest Rehab and Respiratory Center in January, and his body was found in the woods two days later in a wooded, frozen ravine nearby. He reportedly died of hypothermia.

The four-count lawsuit filed in St. Clair County Circuit Court alleges that the home was aware that Giles had a pattern of trying to leave the facility (sometimes referred to as "elopement"), yet failed to monitor him and failed to have appropriate interventions in place to prevent him from exiting the premises. The family further alleges the nursing home violated various state regulations, failed to provide adequately supervise its staff, and failed to notify authorities in a timely fashion.

Daughters sue Belleville nursing home over death of man who walked away, Nicholas J.C. Pistor, Post-Dispatch, February 22, 2012.

The New York State Department of Health recently published the results of a July 19, 2011 certification survey for Nesconset Center for Nursing and Rehabilitation located in Suffolk County, New York. The Department's findings were not positive for the home, noting that the facility was deficient in no fewer than nine areas.

Among the areas in which the facility was found deficient was 42 CFR 483.25(h). According to this provision of the CFR, the facility "must ensure that (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents." In the occurrence leading to this citation, a resident with a history of falls was observed sitting in a chair without a chair alarm. The resident's care plan documented chair alarms as an intervention. More striking than the simple lack of a chair alarm is the fact that the resident had already fallen four times since his admission to the facility. Elderly individuals with dementia, one diagnosis of this particular patient, are always at risk for falls. Failing to implement the interventions recorded in the care plan to prevent falls is a clear violation of the resident's rights.

The facility was also cited for deficiencies in developing and reviewing a plan of care, and proficiency of nurses aides, among other shortcomings. The Department of Health survey, detailing all citations, can be found here.

In a decision released yesterday, a New York appellate panel ruled that the lower court should have suppressed a nursing home worker's apology to police after sexually assaulting a Queens nursing home resident. According to the panel, the apology occurred in the midst of an interrogation, and thus the officer conducting the interview should have Mirandized the defendant, informing him of his right not to speak and to request an attorney.

The defendant was convicted in 2009 of a first-degree criminal sex act and endangering the welfare of an incompetent person after sexually assaulting a 64 year old female nursing home resident at Cliffside Nursing Home in Queens. The conviction carries up to a 10 year prison sentence.

At a hearing before the initial trial, the court denied defense counsel's motion to supress the apology, finding that it was not the product of an interrogation. The appellate panel concluded that the court ruled incorrectly; in fact, the defendant could have reasonably inferred that the interview had begun based upon the detective's words an actions in the interview room. Statements by the detective during the interview about eyewitnesses to the sexual assault led the defendant to apologize.

Despite the panel's ruling that the apology should have been suppressed, the conviction of the defendant was upheld. The panel ruled it "harmless error," stating that given the overwhelming evidence against the defendant, specifically the witness to the assault, he would have been convicted notwithstanding the absence of the apology. Counsel for the defense plans to appeal this aspect of the ruling, citing a violation of his client's constitutional rights.

Website Resource: New York Law Journal, People v. Tavares-Nunez, Andrew Keshner, October 4, 2011

Power of attorney, in its simplest form, transfers to the grantee the ability to make authorized legal decisions on behalf of the grantor. Under this general, or ordinary, power of attorney, the agent is authorized to make decisions for the grantor only in specific circumstances. The relationship can be revoked by the grantor, and it terminates upon his or her death or incapacity.

A more specific variant is durable power of attorney. With this document, the relationship continues should the grantor become incapacitated or incompetent. Because of the inherently intimate nature of many of these decisions, a durable power of attorney is often given to a close relation or loved one; someone whom the principal trusts to make decisions for him or her should he or she be unable to do so.

Contemplating a time when we are unable to communicate our own wishes is not a comfortable proposition. However, life is unpredictable. We would all like to believe that we will be capable of making decisions for ourselves until the very end. Often this is not possible or practical. With a durable power of attorney, you can be confident that someone whom you love and trust will make the correct decisions regarding your well-being in the event that you yourself are unable to do so. As twilight years approach, it is essential to ensure that your personal wishes for care are fulfilled. A durable power of attorney is a measure of security to provide peace of mind that a specific loved one will make your desires known for you in the event that you are unable to do so yourself.

Call the Elder Law Attorneys at Gallivan & Gallivan to discuss Power of Attorney documents and other elder planning tools.

Through the use of a health care proxy document, an individual can appoint someone else, known as a health care agent, to make important health-related decisions should the individual become incapable of making the decisions for him or herself. Generally, a health care agent is a close relative or trusted friend--someone who will guard your best interests should an occasion arise in which you are unable to do so for yourself.

As soon as an individual reaches the age of majority, he or she should appoint a health care agent. In the event that you suffer an unexpected injury or illness, rendering you incapable of determining your own course of healthcare, a health care agent can act in your best interests while you are incapacitated. Upon regaining full capacity, you also regain full decision-making. This form of health care proxy serves as a safety net in case the unexpected happens.

Designating a health care agent through proxy is also essential for estate planning. In the event that you are rendered permanently unable to make competent decisions for your own well-being, a trusted health care agent will serve as your liaison to your medical caregivers. And because you yourself have appointed this agent, you will have the comfort of knowing that he or she will act based on your previously expressed directives.

Growing old is difficult both for individuals and for their families. By utilizing a health care proxy in advance, you can be sure that your unique care plan is followed. You can also be sure to avoid difficult processes and decisions for your family. Setting up a health care proxy is a necessary aspect of both emergency preparedness and long-term planning. Setting it up as soon as possible leaves you with one less concern in both the near and distant future.

A recent study by the Mayo Clinic in Rochester, MN suggests that increased aerobic activity may be a deterrent to dementia later in life. Additionally, such exercise may serve to impede the development of dementia once it starts. The researchers who conducted the study define exercise as "enough aerobic physical activity to raise the heart rate and increase the body's need for oxygen."

Although the researchers concede that there is not a conclusive inverse correlation between increased exercise and decreased dementia, they feel that a strong case can be made. Past studies have also shown that aerobic activities reflect a positive increase in mental integrity. At the very least, aerobic activities increase physical well-being. Potentially adding increased mental health makes an active lifestyle even more valuable.

Website Resource: Aerobic Exercise May Reduce the Risk of Dementia, Mayo Clinic Researchers Say Mayo Clinic, September 7, 2011