Articles Posted in Miscellaneous

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 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.

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.’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.

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

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

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

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

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

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

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

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

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

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

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

Selecting a nursing home for your loved one is a difficult decision. It is not easy to trust someone else or a stranger to meet the needs of your mother, father, spouse, or family member. Here is a list of factors you should consider when picking the right living arrangement and nursing home for your loved one.

1. Assess the Needs of Your Loved One

oldman.jpgBefore choosing a nursing home, it is best to understand the needs of the elderly person. Take into consideration your loved one’s medical conditions and the level of care required. You don’t want to assume that the nursing home or living facility has the right services, staff, medical equipment, or expertise to care for the individual. You’ll want to make sure that the nursing home has the required necessities to meet the needs of the person.

2. Conduct Thorough Research

It’s common practice to do research on the places you will stay, whether it’s a hotel or neighborhood of a new home you’re considering buying. The same holds true for selecting a location where your loved one will live. Before deciding on a nursing facility, you should take the time to conduct thorough research of your options. It is a good idea to see what others are saying about the nursing home through reviews and ratings. This is a decision that you should not take lightly, as the individual’s health, safety, and quality of life depends on it. Take the time to investigate the nursing homes. Many states have assessments and ratings that are available to the public by request. This will give you the opportunity to see if there are any code violations as well.

Here are some questions to consider:
• What facility processes are in place for preventing the spread of illness and infection?
• What is the frequency of hospital-acquired infections?
• What fall prevention measures are in place?
• What is the falling rate of the facility?
• Has the nursing home been reported for violations? If so, how many and which ones?
• Does the facility have a poor reputation in the public and among residents?
Don’t be afraid to ask questions about anything that is important to you. You want to be fully knowledgeable about the living facility, their reputation, quality of care, and competency level.

3. Get Recommendations

There are multiple ways to find ratings and reviews, but you can also get recommendations from family, friends, and co-workers. They are a great source for feedback, referrals, and insight. If they’ve had a positive and/or satisfactory experience, it’s more likely that your loved one will experience the same. On the other hand, if they pinpoint areas of concern or share negative experiences, you’ll want to investigate the nursing home more closely or remove the option from your list.

4. Schedule A Visit

Once you have a list of possible nursing homes, schedule a visit. Do not move the individual into a facility until you have seen it first-hand. A nursing home can look one way on a website, marketing material, or over the phone but be a completely different experience once you arrive at the door. Take the time to inspect the premises, speak to the staff, ask questions, talk to current residents, and get a real sense of the environment to make sure it is the best choice for the individual.

5. Do a Final Assessment of the Facility

While you are there at the nursing home, closely observe everything you see. Be careful not to overlook important factors that will play a role in your final decision.

Take a look at the following:
• Cleanliness of the indoor and outdoor spaces • Activities program and/or schedule • Staff friendliness • Meal options
• Safety measures
By performing detailed research and touring the nursing home community, you’ll have a good sense of whether this is the right place for your elderly loved one. This will ultimately lead to an educated decision. Remember, the safety, medical needs, quality of care, and comfort of your loved one is the most important when choosing a living environment for them.

More information on choosing the right nursing home for your loved one can be found on the Medicare website, as well as A Place for Mom.

Parkview Care and Rehabilitation Center, a nursing home in Massapequa, Long Island, was cited in an April Department of Health certification survey for nineteen deficiencies. The most serious of these deficiencies resulted in “actual harm” to a resident. A finding of actual harm is the second most serious level of severity that the DOH assesses to a nursing home during a certification survey.

chest.jpgThis most serious incident involved a failure to promptly notify an attending physician of the radiology findings for a resident of Parkview. Because the resident was exhibiting symptoms of pneumonia, a chest x-ray was ordered. The physician was not notified of the results, or lack thereof, of the x-ray until four days after it was taken. Nursing notes for the time between the performance of the x-ray and the and the resident’s transfer to the hospital indicate that the nurses did not check the resident’s breathing, despite the symptoms of pneumonia that had prompted the physician order for the x-ray. When the physician finally received the x-ray four days after it was performed, he became aware that the patient was suffering from a collapsed left lung. The attending immediately ordered a transfer to the hospital, where the resident was treated for his condition.

In an interview with the DOH, the attending physician indicated that it is incumbent upon the radiology department to notify him immediately of any abnormalities or dangers indicated in the x-ray. Radiology did not adhere to this protocol in this instance.

Although this incident was the most severe of those documented in the certification survey, it was far from the only one in the report. Among the other deficiencies noted by the DOH were a failure to keep the nursing home free of accident hazards, failure to provide proper treatment to prevent and/or treat pressure ulcers, and failure to ensure that residents are free from significant medication errors. There is no word yet as to whether a fine will be assessed against Parkview for these numerous deficiencies.

A study recently reported in the NY Times found that consumer satisfaction ratings for nursing homes do not always match up with the ratings given to facilities by their residents and their families. The largest disparity occurred with respect to facilities rated at the highest level (five stars) on Medicare’s Nursing Home Compare website. Although one would expect that a facility rated five out of five stars would have excellent satisfaction rates, the survey found otherwise. In many cases, residents expressed very low satisfaction rates at these nursing homes that Medicare had rated at the top of the list. Often, these residents’ families felt the same.

In the Times’ investigation, it was discovered that this discrepancy may be due to differing expectations between Medicare, who ranks the nursing homes, and residents and their families, who deal with everyday life within the facility. While Medicare primarily looks to factors such as infection rate, pressure ulcers/wound care, and medication errors, resident and their families, many of whom are unaffected by these deficiencies, look more to quality of life and dignity within the facility.

Consideration has been given to using feedback from residents and their families into the Medicare rankings, although that has not occurred yet. While it would enable a fuller view of life within nursing homes, the added cost has to be justified to implement such a program. In the meantime, a lesson to be learned for anyone contemplating placing a loved one in a nursing home is to take the Medicare ratings for what they are: accurate measurements based upon the criteria studied, but not necessarily a complete picture of life within a particular nursing home.

The article in the NY Times can be found here.

According to a February 2014 New York State Department of Health Inspection report, the Katherine Luther Residential Health Care & Rehabilitation center, a 280-bed nursing home located in Clinton, New York, failed to respect the dignity of patients and did not follow proper procedures to prevent infections. In one instance, a resident suffering from dementia, osteoporosis and COPD was observed eating oatmeal with her bare hands. The resident, who needed help with her personal hygiene, wiped the oatmeal in her hair and on her clothes. After sitting for three hours with dried food in her hair, the resident finally got the attention of a CNA who simply brushed the oatmeal from the patient’s clothes and hair. When asked about the incident, a supervising nurse stated that the CNA should have immediately washed the patient’s hair and changed her clothes.

gauze.jpgIn another instance, a resident who suffered from dementia, anxiety and depression was observed sitting in the hallway with dried blood between his nose and lip. The patient’s care plan mandated that staff members monitor the resident because he was at risk of bleeding due to his anticoagulation medication. However, while the elderly resident sat in the hallway with dried blood on his face, staff members ignored him; one CNA said “hi” to the patient and kept on walking. When asked about the incident, a supervising nurse stated that the CNA should have stopped to clean the man’s face. In addition, the CNA should have asked a nurse to assess the man’s condition to ensure that the bleeding had stopped.

The facility was also cited for incidents in which staff members failed to follow policies to prevent infections. For instance, one resident had developed a stage II pressure sore. While eating in the dining room, inspectors for the DOH observed that the resident’s wound dressing had fallen off. A nurse stated that she would replace the dressing as soon as the patient was done eating. The nurse did not change the dressing until two hours later. When she finally did change the dressing, the nurse touched a floor mat in order to move it. She then touched the sterile gauze that was going to be used to clean the wound with the hand she used to touch the dirty floor mat. The inspector told her to change her gloves and find a new piece of gauze. The nurse later stated that she should have changed the dressing sooner, and that she should have changed her gloves and the gauze after touching the floor mat.

In another instance, an Alzheimer’s patient who suffered from urinary incontinence was observed sitting in the dining room with his catheter bag on the floor. A CNA saw the bag on the floor but did nothing about it. When the same patient went to the bathroom, the catheter bag was still filled with some urine and was draped over a metal bar. The bag was also uncapped. A registered nurse stated that the bag should have been emptied, rinsed, capped and then sealed in a plastic bag for safe storage in order to prevent an infection.

According to the “Nursing Home Compare” website, Katherine Luther nursing home received an overall rating of below average. Its health inspection results were considered much below average.

wheelchair4.jpgAccording to a New York State Department of Health citation report, staff members of the Suffolk County Center for Rehabilitation and Nursing center, a 10-bed nursing home located in Patchogue, Long Island failed to monitor a patient who was found dead in a bathroom with a seatbelt around his neck. The report indicated that the patient, who had turned blue, “was found unresponsive without pulse and respiration–no sign of life.” The resident, who suffered from dementia and was required to wear a seatbelt in his wheelchair, was trying to get out of his wheelchair in order to use the toilet. However, while attempting to slip under his seatbelt, the restraint became wrapped around his neck, strangling him to death.

Investigators reported that because the patient had a history of wandering, his care plan required that he wear a seatbelt in his wheelchair. If the patient tried to undo the seatbelt, an alarm would sound. In addition, his care plan required that an assigned staff member check on him every 15 minutes and document that the check was performed. On July 15, 2013, a certified nursing assistant was assigned to watch the patient. At 1:15 p.m., the CNA left the resident in the dayroom which was being monitored by another staff member. The CNA told investigators that he thought that the dayroom supervisor would watch the resident.

At 1:28 p.m., the patient was caught by a surveillance camera wheeling himself out of the dayroom and a nurse placed him in front of the nursing station. The nurse stated that he was unaware of the fact that the resident needed to be monitored every fifteen minutes. At 1:33 p.m., video footage showed the resident wheeling himself towards the bathroom, which staff members claimed to have locked. At 2:12 p.m., another resident of the facility found the patient in the bathroom with the seatbelt around his neck. After the resident alerted staff members, a code blue was called. At 2:20 p.m., a nurse practitioner noted that the resident had died. The DOH report concluded that staff members failed to follow the patient’s care plan by not monitoring the resident every 15 minutes.

The “Nursing Home Compare” website documents that the Suffolk County nursing home has a history of violations for providing poor care. The DOH issued 18 deficiencies; the average number of deficiencies for other New York nursing homes is 5.4. In addition, in June 2013, inspectors issued $36,661 in fines against the facility for numerous violations that placed residents in immediate jeopardy of suffering harm or injury. Overall, the nursing home was rated below average and received a much below average rating for its health inspection record. Moreover, 46 percent of the residents showed symptoms of depression; the average percentage of depressed patients in other New York facilities is 11.6 percent.