New York Nursing Home Abuse Lawyer Blog

A Florida jury recently awarded $114 million to the family of a 76-year-old woman who was allegedly the victim of elder abuse while a resident at a local nursing home. The plaintiffs alleged that the decedent, Juanita Jackson, developed pressure sores (bedsores, decubitus ulcers), became malnourished and dehydrated, and was purposefully overmedicated at Integrated Health Services at Auburndale. Integrated Health Services reportedly stopped participating in the case weeks ago, and as a result, a default judgment was entered against the company.

The case proceeded to a trial on damages. After the trial, the jury awarded $14 million in damages and $100 million in punitive damages to Jackson's family. The verdict is reportedly one of the largest in Polk County history.

$114 Million Awarded in Abuse Case, The Ledger, Jason Geary, July 22, 2010.

A recent $29 million verdict in a nursing home abuse and wrongful death case was upheld by a Sacramento Superior Court Judge last week. The underlying case involved the death of a 79 year-old former civil servant who fell at a Horizon West Healthcare facility and thereafter developed a Stage IV bedsore that became infected. The plaintiff in the case argued that the Horizon facility was deliberately understaffed and as a result, provided inadequate care and monitoring. We previously discussed the case at the time of the verdict here on the New York Nursing Home Abuse Lawyer Blog.

Judge Roland Candee rejected Horizon West Healthcare's arguments for a new trial or significantly reduced damages. Candee said "overwhelming" and "devastatingly powerful" evidence in the trial in May supported the jury's verdict and damage awards against Horizon, which owns 33 nursing homes mostly in California.

The jury ruled that Horizon and Colonial committed elder abuse and awarded $1.1 million in damages for Tanner's pain and suffering and for her daughter's loss of companionship. A day later, after hearing evidence about the corporation's finances including its net worth of about $200 million, the panel made the $28 million punitive award.

Candee reduced the pain and suffering damages to $800,000. Including $1.2 million in attorney's fees, the total judgment is for $29.1 million, believed to be the largest ever for an elder abuse case in Sacramento County.

Website Resource:

$29 million verdict upheld against Rocklin nursing home firm, Sacramento Bee, Cynthia Hubert, July 15, 2010.

New York nursing homes can find themselves on the Special Focus Facility ("SFF") list if they have: 1) More problems than other nursing homes (about twice the average number of deficiencies), 2) More serious problems than most other nursing homes (including harm or injury experienced by residents), or 3) a pattern of serious problems that has persisted over a long period of time (as measured over the three years before the date the nursing home was first put on the SFF list). Two New York nursing home facilities were added to the Special Focus Facility list due to the severity of quality of care problems found by CMS surveyors:

Loretto Utica Residential
1445 Kemble Street
Utica NY

Northwoods Rehab At Hilltop
1805 Providence Avenue
Niskayuna, NY

Northwoods Rehabilitation has been on the SFF list for over 35 months. Below please find a complete explanation of the Centers for Medicare & Medicaid Services ("CMS") Special Focus Facility Initiative.

Background

CMS and States visit nursing homes on a regular basis to determine if the nursing homes are providing the quality of care that Medicare and Medicaid requires. These "survey" or "inspection" teams will identify deficiencies in the quality of care that is provided. They also identify any deficiencies in meeting CMS safety requirements (such as protection from fire hazards). When deficiencies are identified, we require that the problems be corrected. If serious problems are not corrected, we may terminate the nursing home's participation in Medicare and Medicaid.

Most nursing homes have some deficiencies, with the average being 6-7 deficiencies per survey. Most nursing homes correct their problems within a reasonable period of time. However, we have found that a minority of nursing homes have:

• More problems than other nursing homes (about twice the average number of
deficiencies),
• More serious problems than most other nursing homes (including harm or injury
experienced by residents), and
• A pattern of serious problems that has persisted over a long period of time (as measured over the three years before the date the nursing home was first put on the SFF list).

Although such nursing homes would periodically institute enough improvements in the
presenting problems that they would be in substantial compliance on one survey, significant problems would often re-surface by the time of the next survey. Such facilities with a "yo-yo" or "in and out" compliance history rarely addressed underlying systemic problems that were giving rise to repeated cycles of serious deficiencies. To address this problem CMS created the "Special Focus Facility" (SFF) initiative.

How the Special Focus Facility (SFF) Initiative Works

CMS requires that SFF nursing homes be visited in person by survey teams twice as frequently as other nursing homes (about twice per year). The longer the problems persist, the more stringent we are in the enforcement actions that will be taken. Examples of such enforcement actions are civil monetary penalties ("fines") or termination from Medicare and Medicaid. Within about 18-24 months after a facility is identified by CMS as an SFF nursing home, we expect that there will be one of 3 possible outcomes:

(a) Improvement & Graduation: The nursing home graduates from the SFF program
because it has made significant improvements in quality of care - and those
improvements are continued over time;

(b) Termination from Medicare: The nursing home is terminated from participation in the
Medicare and Medicaid programs. While such a nursing home may continue to operate
(depending on State law), usually it will close once Medicare and Medicaid funding is
discontinued. In such a case the State Medicaid Agency (and others) will assist all
nursing home residents to transition to another residence that can provide a better and
acceptable quality of care. This may include a variety of possibilities, such as another
nursing home, a community-based setting, or apartment with good support services.

(c) Extension of Time: The nursing home is provided with some additional time to continue in the SFF program because there has been very promising progress, such as the sale of the nursing home to another owner with a much better track record of providing quality care.

Website Resources:

CMS Special Focus Facility Ceritification and Compliance, 2010.

The NYS Attorney General's Medicaid Fraud Unit recently arrested Pamela Davis, a Licensed Practical Nurse at Riverdale Nursing Home in Bronx, New York, on charges of elder abuse. Nurse Davis allegedly struck a 75-year old resident in the back with her keys and kicked him in the buttocks. According to a Long-Term-Care Community Coalition Report, on February 8, 2010, Nurse Davis was sentenced to a conditional discharge and required to complete 5 days community service as a result of the incident.

Stemming from an elder abuse investigation conducted by the New York State Attorney General, a Certified Nursing Aide at Utica Center for Nursing and Rehabilitation was recently placed on three years probation and was forced to surrender her C.N.A. certificate. The NYSAG investigation revealed that while assisting another CNA help an 80 year-old resident in the shower, C.N.A. Rhonda Woodson flicked the resident's ear and nose, sprayed water up the resident's nose, and slapped the resident's head.

Website Resource:

Long-Term-Care Community Coalition Quarterly Report, Winter 2009.

A Sacramento Superior Court jury recently awarded $28 million in punitive damages to the family of an elder abuse victim. Earlier this week, the jury returned a $1.1 million dollar verdict for the decedent's conscious pain and suffering and found the facility, Colonial Healthcare of Auburn, to have acted with "malice" as defined under the CA Elder Abuse statute. Frances Tanner was 79 when she died. Plaintiffs claim that the cause of her death was an infected bedsore.

The jury on Wednesday found Colonial Healthcare of Auburn and its parent company, Horizon West of Rocklin, guilty of elder abuse in the death of Frances Tanner, 79, a Stockton native and lifelong civil servant. They heard testimony about the corporation's finances today before deciding punitive damages.

Sacramento lawyer Ed Dudensing, who represented Tanner's daughter Elizabeth Pao in the case, urged jurors to make sure that Horizon paid dearly for the lapses that he argued led to Tanner's death. Plaintiffs contended that the nursing home corporation made profits their priority as opposed to quality patient care. The nursing home claimed that appropriate care was provided to Ms. Tanner. Representatives of Colonial Healthcare have vowed to appeal the verdicts.

Website Resources:

Jury hits Auburn nursing home with $28 million in punitive damages, Modesto Bee, Cynthia Hubert, May 13, 2010.

Two Essex county, NY nurses have been arrested for causing severe trauma to a quadriplegic patient during a catheter change and failing to perform or seek medical treatment for hours. Anne Marcotte, a 49 year-old Licensed Practical Nurse, and Billi Jo O'Donnell, a 38 year-old Registered Nurse, are charged with reckless endangerment in the second degree, endangering the welfare of an incompetent or physically disabled person, and willful violation of health laws, all misdemeanors.

The alleged incident occurred at Horace Nye Nursing Home in Elizabethtown in November of 2008 when Marcotte negligently performed a catheter change. Although the change caused the resident to bleed profusely, Marcotte did not seek medical attention for the resident for over 6 hours. In addition, O'Donnell failed to assist despite being aware of the injury. The bleeding continued for two weeks and the resident had to hospitalized twice over a two week period. While hospitalized, the resident expelled numerous blood clots and lost a substantial amount of blood causing physicians to order two blood transfusions and antibiotics.

Attorney General Cuomo stated, "A care-dependent quadriplegic patient suffered immensely because the nursing staff allegedly botched a routine procedure and then failed to provide or seek adequate medical care for hours. Protecting vulnerable New Yorkers and combating patient abuse will continue to be a major priority for this office."

Website Resource:

ATTORNEY GENERAL CUOMO ANNOUNCES ARREST OF TWO ESSEX COUNTY NURSES FOR PATIENT ABUSE, Office of the New York State Attorney General - Media Center, January 15, 2010.

The U.S. government estimates that over 5 million people are victimized by elder abuse each year. Furthermore, it is estimated that 84% of cases go unreported. Elder abuse comes in many forms including, physical or sexual abuse, neglect and financial exploitation. Below is a video promoting the passing of the Elder Justice Act.

The family of a resident at a California nursing home, Fillmore Convalescent Center, was recently awarded $7.75 million in a case involving nursing home abuse. The resident was a 71-year-old stroke victim.

The attorneys for the resident and her family showed the jury a secret videotape of the woman being abused. Members of the residents family became suspicious after they noticed that their mother was bruised. They complained to management at the facility, but apparently the facility failed to investigate. As a result, the family took it upon themselves to set-up the hidden camera.

She videotape reportedly showed a member of the nursing staff slapping the resident, pulling her around by the hair, bending her neck, fingers and wrists, and treating her violently in a shower chair. The jury deliberated for two days before announcing the verdict: $2.75 million in actual damages and $5 million in punitive damages.

Website Resources:

$7.75 million awarded in abuse case - Elderly victim a patient at Fillmore facility, Ventura County Star, Stephanie Hoops, December 11, 2009.

The New York State Medicaid Fraud Control Unit (MFCU) was established over 30 years ago with the intent to protect the New York's most vulnerable patients from elder abuse
and neglect. The MFCU's mission remains the same today. The MFCU, under the direction of Attorney General Andrew Cuomo, has published a brochure, "Protecting Patients From Abuse and Neglect", which discusses the types of investigations the office undertakes in nursing homes, the types of crimes providers can be charged with, how to contact the office and ways you can be helped if you have suffered abuse or neglect.

To report elder abuse or neglect, please call the New York State Attorney General's Office at (800) 771-7755 or the New York State Department of Health at (888) 201-4563.

The attorneys at Gallivan & Gallivan support the work of the MFCU and likewise are dedicated to protecting New York's most vulnerable citizens. If you or a loved one has been the subjected to abuse or neglect in a nursing home or assisted living facility, please contact us. We aggressively pursue compensation for victims of elder abuse or neglect.

A former charge nurse at a Central New York nursing home, Maura Quinn, is alleged to have been involved in the abuse of an elderly resident. She has been formally charged with endangering the welfare of an incompetent or physically disabled person and willful violation of various health laws. All charges were filed following an investigation by the New York State Attorney General's Office.

It is alleged that during a shift in January of last year, a 93 year-old terminally ill patient with a history of colon cancer, chronic renal failure, hypertension, anemia, and pneumonia complained of pain persistently. The charge nurse was allegedly notified by other staff members, but she failed to assess the resident. After a shift change, the new charge nurse immediately contacted a physician. Pain medication was provided, however, the resident died later that evening.

Attorney General Cuomo commented, "This nurse's alleged actions are heart wrenching. Family members must trust medical professionals to act properly when caring for loved ones in their most vulnerable state. In this case, the nurse allegedly ignored not only her obligation to the patient and his family - but also the pleas of her fellow co-workers to help ease the patient's pain. Such conduct is not tolerated by this office, and we will continue to aggressively hold individuals who neglect and abuse their patients accountable."

Website Resources:

ATTORNEY GENERAL CUOMO CHARGES ONONDAGA COUNTY NURSE WITH NEGLECTING A TERMINALLY ILL CANCER PATIENT IN THE FINAL HOURS OF HIS LIFE, New York State Attorney General Media Center, September 16, 2009.

Following an investigation by the New York State Attorney General, Shane Spooner, 33, a former nurse's aide at a New York Nursing Home, was charged with second-degree unlawful surveillance and first-degree dissemination of an unlawful surveillance image, both felonies.

Spooner apparently took a picture of a 49-year-old resident's genitals with his cell phone. The resident reportedly suffers from a traumatic brain injury. Thereafter, Spooner allegedly sent a text message with the photo to a female employee who advised her supervisor of the incident.

Attorney General, Andrew Cuomo, labeled Spooner's actions "a disgusting example of abuse within the walls of a New York nursing home." For a further discussion of the investigation please visit the Media page of the New York State Attorney General.

If you or a loved one has been the victim of abuse in a nursing home, please contact the attorneys at Gallivan & Gallivan.

Website Resources:

Man admits to taking sexual photo, Press Republican, Andrea VanValkenburg, August 20, 2009.

Lacy Reid, a 45 year-old assisted living employee residing in Nassau County, has been charged with Felony Reckless Endangerment for failing to come to the aid of his ailing mother. His mother allegedly fell in her kitchen on Tuesday night and remained on the floor until Thursday. Mr. Reid, who lives with his mother, stepped over her on his way to work Wednesday and Thursday.

When the authorities were finally called, officers found Mary Reid face down in the foyer by the front door. She was dehydrated and malnourished, and she suffered a heart attack while being transported to the Emergency Room.

Website Resources:

Cops: Freeport man left ill mother on floor for 2 days, Newsday, Zachary R. Dowdy, August 14, 2009.

Pierre Obas, a 72 year-old nursing assistant, was sentenced in a North Salem, New York Court for abusing a resident at Waterview Hills Rehabilitation and Nursing Home. Mr. Obas tied an 83 year-old resident to her wheelchair with a bed sheet and took a nap after depositing her in a lounge area. Apparently, Mr. Obas became upset that the resident had requested assistance numerous times throughout the course of the night so he decided to tie her up.

An order from a physician is required for restraints to be used in the nursing home setting, and no such order was in place. However, regardless of whether an order was in place, a sheet is never an appropriate manner in which to restrain a resident because it presents a risk for strangulation and/or falls.

As part of his sentence, Mr. Obas was required to surrender his certification to work as a nurse's aide for a period of one year.

Website Resources:

83-year-old patient restrained while aide took nap, LoHud.com, Candice Ferrette, August 11, 2009.

The Crossings, a New York nursing home, was fined $13,300 by the federal government as a result of an incident involving a choking resident. The resident was fed pancakes and sausages, both of which were cut into tiny pieces. Soon thereafter, a nurse's aide noticed the resident was not breathing and that the resident's lips had turned blue. However, the nurse's aide neglected to call a "code blue", call 911, and/or perform the Heimlich maneuver. A licensed practical nurse and a registered nurse who appeared on the scene a few moments later also failed to call 911 or a "code blue" immediately. As a result, the resident went into cardiac arrest and died at a nearby hospital.

The Crossings was cited for failing to appropriately train its employees regarding "code" situations, as well as providing care that did not meet minimum professional standards. If you or a loved one has been the victim of a choking incident that was not handled appropriately, please contact the New York Nursing Home Neglect Attorneys at Gallivan & Gallivan.

Website Resources:

Nursing home fined $13,300 - Agency says The Crossings didn't give proper care to choking resident who died, The Post-Standard, James T. Mulder, November 19, 2008.