New York Nursing Home Abuse Lawyer Blog

Smithtown Center for Rehabilitation and Nursing Care, located in Suffolk County, received sub-standard ratings from a Department of Health Certification Survey Dated November 2, 2011. Among the several deficiencies noted by the DOH were frequency of meals and providing/obtaining radiology services.

Section 483.35(f) of the CFR dictates that the facility provide three daily meals to residents, with no more than fourteen hours between dinner and breakfast the next day, unless a snack is provided at bedtime, in which case the interval may increase to sixteen hours. One logical reason for this rule is that the facility provides these meals, so the residents eating habits are subject to the staff providing them. Also, as it is the duty of the home to prevent the development of bedsores and infections, a consistent nutritional allowance is a necessity. Hunger can lead to distraction and accidents, which the facility is bound by law to make provisions to avoid. In this instance, residents reported that snacks were not provided on a regular basis by the staff, although these residents claimed feelings of hunger and that they would have readily accepted offered snacks.

For an elderly person, a fracture can have serious, and potentially life threatening, consequences. When a fall with a possible fracture occurs, it is essential to diagnose the results as quickly as possible to ensure that the correct treatment is given and the resident can begin to recover. For this reason, CFR 483.75(k)(1) provides that the facility must obtain radiology and diagnostics for its residents, and that the facility is responsible for the timeliness of obtaining these. In one instance noted in the report, a resident suffered a fall and complained of hip pain. Although an x-ray was ordered immediately, the results of this x-ray were not reported until almost sixteen hours later. As such, the injury, which was an acute right hip fracture, went undiagnosed during this interval. As evidenced by the DOH deficiency report, this lag is unacceptable.

A full list of deficiencies noted by the DOH with reference to Smithtown Center for Rehabilitation and Nursing can be located here.

Woodhaven Nursing Home, a Suffolk County-based nursing home facility, was cited for multiple deficiencies in a Department of Health Survey dated April 27, 2011. Among the violations were failure to have secure handrails in place, and failure to care for the resident in a matter maintaining dignity.

According to CFR 483.70(h)(3), a facility must ensure that corridors have firmly secured handrails on each side. In a facility in which numerous residents are fall risks, and the consequences of such falls are extremely serious, secured handrails are a necessity. The study found that three areas of Woodhaven's first floor were not equipped with handrails. Fortunately this did not result in actual harm for any of the residents. However, the study does note that the potential for more than minimal harm was present.

Section 483.15(a) of the Code specifies that the facility must promote the care of patients in such a manner that maintains or enhances his or her individuality. In three instances of Woodhaven failing to meet this standard, specific instructions for infection control were posted outside a residents' rooms, on some occasions left visible after the patient required such care. The information contained in the signs was plainly visible for other residents or visitors to see. When infections occur in nursing homes, as they sometimes do, it is the duty of the facility not only to treat the infection, but also to treat the resident suffering from the infection with dignity in the process. The DOH felt that Woodhaven failed to do this in these circumstances.

The full transcription of the Department of Health report can be found here.

Northern Riverview Health Care Center in Haverstraw, NY was cited in a Department of Health Deficiency Survey dated May 11, 2011. The DOH cited the facility for numerous violations, including failing to ensure that the facility was free of accident hazards, and failure to develop and implement written policies and procedures that prohibit mistreatment and/or neglect.

The Statement of Deficiencies documented incidents involving falls of five residents, with the falls resulting in actual harm to each. In one such incident, a resident was admitted with diagnoses including dementia and ataxia (unsteady gait). The care plan in place for this resident stated that an alarm was to be in use on his wheelchair at all times when the resident was out of bed. Despite this, the resident was discovered on the floor on the evening of February 20th, and it was discovered that an monitoring device was not in place, contrary to care plan specifications. Subsequent to the fall, the facility did not conduct a complete investigation. Additionally, no new interventions were put in place to prevent a repeat incident. As a result, the resident suffered another fall on April 20th while in the dining room, after which the assistant director of nursing stated that, again, a wheelchair monitor was not in place.

Nursing home facilities must ensure that residents receive proper supervision and assistive devices to prevent accidents. Such steps clearly were not taken in the case of this resident. After the initial fall, the facility should have ensured, at the very least, that the original care plan was followed. Despite the actual notice provided of his risk for falls after the first incident, no steps were taken to prevent additional accidents.

As stated above, the facility was also cited for failure to prevent abuse or neglect. This failure was evident for six residents out of a sample of 17. Among the indignities suffered by these residents were: corporal punishment that went without investigation (slaps about the face and head administered by the resident's son; a bruise of unknown origin to a resident's hip (this too was not investigated); and failure to implement proper alarm interventions for a resident known to be a fall risk.

A facility implements a care plan because the staff recognizes a risk of harm or injury due to the patient's physical or mental state. The plan is meant to limit further injury, or help to heal a current condition. The care plan has no effect if it is not implemented, however. In many of the incidents documented in the DOH survey, Northern Riverview recognized a risk, but failed to follow through on its own directives to minimize the risk. These failures resulted in the accidents and injuries above. The full reports, including additional citations and incidents, can be found here.

Registered Nurse, Kathleen Kennedy, an employee at Daleview Care Center in Farmingdale, New York was recently sentenced to five years probation after falsifying records in a resident's nursing home chart. Nurse Kennedy reportedly failed to properly assess a resident (with a history of falls who had previously suffered a fractured hip) after a fall, failed to properly document the fall and later submitted a false statement that she had no knowledge of the fall.

Our firm handles many cases involving residents that have fallen at New York nursing homes due to the failure to properly assess the resident, as well as the failure to create and implement a proper plan of care to prevent falls. It seems that not only did the nurse involved fail to properly assess the resident, she also failed to follow appropriate protocol for documenting falls and decided to lie about it. As in most instances involving document fraud, here the cover-up was likely worse than the "crime".

Long-Term-Care Community Coalition, Enforcement Actions 6/11/11 - 9/15/11.

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.

Two Certified Nurse Aides at Ferncliff Nursing Home Co. Inc., a Dutchess County, NY Nursing Home, were recently forced to surrender their C.N.A. certificates after a fall during a transfer at the facility. According to a Long-Term-Care Community Coalition report, Stephen Thomas, a C.N.A., transferred a 94-year old resident, who slipped and suffered a broken arm.

The care plan in place called for the assistance of two staff members during transfers. After the incident occurred, Stephen Thomas asked another C.N.A. to lie about the incident and claim that they transferred the resident together in compliance with the care plan.

Both aides were charged criminally and forced to surrender their C.N.A. certificates as a result of the incident. As we have discussed many times here at the New York Nursing Home Abuse Lawyer Blog, we have handled many cases where attempts were made by nursing home employees to cover-up incidents of neglect and abuse. Although there is no denying that a fall resulting in a fractured arm is a very painful injury, the cover-up here was likely worse than the "crime" itself and likely lead to a more severe punishment for the C.N.A.'s involved.

A January 31, 2011 survey inspection conducted by the NYS Dept. of Health resulted in numerous deficiencies at Cayuga County Nursing Home, an upstate New York long-term-care facility. More recently, the facility was cited for 40 standard health deficiencies (statewide average is 17) in July 2011. The specifics of the July survey are not yet available online. The most glaring findings in the January 31, 2011 report involved the facility's failure to prevent accidents and falls, the development of bedsores (pressure ulcers, decubitis ulcers) as well as its failure to maintain accurate clinical records.

With respect to the bedsore deficiency, the surveyors found the nursing home failed to prevent the progression of a heel ulcer that resulted in severe pain to an anonymous resident. More specifically, the surveyors found that the facility:
- did not develop and implement a preventive, pressure-relieving comprehensive care plan related to the need for turning and positioning the resident while in bed, or in her wheelchair; the need to float the resident's heels off the bed, and the need for the resident to wear heel protectors;
- did not assess the cause of the resident's pressure ulcers to prevent the recurrence of skin breakdown and promote timely healing; and
- did not ensure pressure relieving foot care measures were consistently implemented to promote healing of the resident's left heel pressure ulcer.

In the event that you or a loved one has developed a bedsore, please contact the New York Bedsore Attorneys at Gallivan & Gallivan for a free initial consultation.

In May 2011, the Supreme Court, Appellate Division, Second Department affirmed a decision by the Trial Court in Rockland County compelling a defendant nursing home to disclose certain information regarding patients that were not parties in the lawsuit. Plaintiff-decedent had suffered pressure sores and a leg fracture, allegedly caused by the negligence of the facility. The plaintiff had requested information of other residents, including names and dates of admission purportedly in order to identify witnesses to the alleged neglect.

Because the plaintiff was not seeking medical information, and because the Court deemed the information necessary to the case, the Court ruled that the information was not protected under CPLR 4504(a). Additionally, the Appellate Court reasoned that due to the numerous services offered by nursing home facilities, information such as names, addresses, and room numbers could not reasonably be used to ascertain a resident's particular affliction--information that would be protected under CPLR 4504(a).

Although plaintiff was initially seeking the information for each and every resident during the plaintiff-decedent's stay at the home, the Court limited the disclosure to a two-month period, and to residents within the plaintiff-decedent's particular unit.

Website Resource: Olkovetsy v Friedwald Ctr. for Rehabilitation & Nursing, LLC (2d Dept. 2011).

Carolyn Williams, a former certified nurse's aide (C.N.A.) at Meadowbrook Care Center in Freeport, NY was recently prosecuted by the Medicaid Fraud Unit of the NYS Attorney General for endangering the welfare of an elderly person. While working at Meadowbrook Care Center, Ms. Williams allegedly attempted a Hoyer transfer without assistance any other nursing home personnel. The Hoyer lift fell upon the resident who received stitches to treat facial lacerations. Thankfully the resident was not more seriously injured. We have seen many cases where transfers gone awry have caused falls, fractures, and brain injuries. Making matters worse, however, Ms. Williams also apparently falsified the CNA accountability record (part of the nursing home chart) to conceal the fact that she attempted the transfer on her own.

As a result of the Medicaid Fraud Unit prosecution, Ms. Williams has been sentenced to a one-year conditional discharge with special conditions of surrendering her CNA certificate and refraining from caring for any incompetent person whether due to age, physical disability, or mental disease or defect.

We have handled many nursing home cases where records have been falsified. These types of entries call into question the integrity of the nursing home record as a whole, as well as the integrity of the staff members who made the entries. Further, it is clear that such entries would incite a jury should the case be tried.

Long-Term-Care Community Coalition Enforcement Archives, Spring 2011.

New York Supreme Court trial judge David M. Barry approved a settlement last week for the late Getrude Kash at the Jewish Home in Brighton, NY. The suit alleged negligence, medical malpractice, and violation of the Public Health Law.

Shortly after Gertrude Kash, seen above, was admitted to the Jewish Home, she suffered a succession of falls, the second of which resulted in a fractured vertebrae. A bed alarm, although ordered, had not been placed by the bed. The fracture led to swelling of the spinal cord, ultimately paralyzing Ms. Kash from the chest down. Ms. Kash, who initiated the suit, passes away in March 2009. Her daughter, Laurie Kash, continued the suit after Gertrude's death. In a statement, Laurie said, "By winning the appeal on the Public Health Law claim, she (Gertrude) also has left a positive legacy to help others injured by nursing home neglect to seek justice. I know she would have been very proud of that."

The total amount of the settlement has not been disclosed.

Website Resource:

Jewish Home settles with woman's estate after her paralysis

Messenger Post, Amanda Seef, December 17, 2010

Angela Zakrzewski, a certified nursing aide at Kaleida Health De Graff Memorial Hospital, a New York nursing home, was recently forced to surrender her C.N.A. certificate after being prosecuted by the Medicaid Fraud Control Unit of the NYS Attorney General's Office. Ms. Zakrzewski performed a one-person transfer of a 91 year-old resident with a mechanical lift (hoyer lift) in violation of the care plan that required a two-person assist. During the transfer, the lift tipped over and injured the resident.

In addition to having to surrender her C.N.A. certificate, Ms Zakrzewski must complete 24 hours of community service. She was also sentenced to a one-year conditional discharge.

The above is a fact pattern commonly seen by New York Nursing Home Abuse Lawyers. The failure of nursing home staff members to properly implement a care plan often results in resident falls and/or fractures.

Website Resource:

Long-Term-Care Community Coalition, Enforcements, Winter 2010.

Northern Riverview Health Care, a nursing home in Haverstraw, NY, recently received the lowest rating possible (one star out of a possible five) from the Centers For Medicare Services (CMS). In evaluating the facility, CMS found poor results in annual health inspections and low levels of staffing. Summit Park Nursing Home in Pomona, NY received two out of five stars. Summit Park has done poorly on inspections over the last three years.

Each year, a team of trained health inspectors conduct onsite health inspections at each nursing home in New York. Inspectors look at the care of residents, the process of care, staff and resident interactions, and the nursing home environment. The data from the last three standard health inspections and all complaint inspections that have been conducted in the last three years were used to calculate the rating.

Many violations found at both facilities over the last three inspection cycles stem from failures in preventing falls or bedsores, as well as failing to implement appropriate care plans for residents.

As we have previously explained on the New York Nursing Home Abuse Lawyer Blog, Medicare rates all New York nursing homes based on three criteria:

1) Findings during health inspections;
2) Nursing home staffing; and
3) Quality measures.

The following nursing homes in Bronx, NY received the lowest rating from Medicare (one out of five stars - much below average):

Beth Abraham Health Services
Bronx Center For Rehabilitation & Health
East Haven and Nursing & Rehabilitation Center
Gold Crest Care Center
Jewish Home & Hospital For the Aged
Morris Park Nursing & Rehabilitation Center
Pelham Parkway Nursing Center
Throgs Neck Extended Care Facility

The homes received such low grades for a variety of reasons including failing to provide proper care to resident "at risk" for developing bedsores (pressure sores, decubiti); failing to prevent falls and fractures, failing to properly assess residents, failing to properly implement appropriate plans of care, failing to properly monitor resident lab values, failing to properly prevent elopement, failing to provide appropriate nutrition or hydration, and failing to prevent physical and sexual abuse.

A New York (NYC) jury recently returned a verdict in favor of a 51 year-old nursing home resident at Manhattan's Terence Cardinal Cooke Health Care Center. The jury found the New York nursing home facility liable for a fall at the facility that resulted in a fractured hip and open reduction internal fixation surgery.

The suit was filed on behalf of John O'Dea who died in March 2007, approximately nine months after the fall that resulted in his hip fracture. A wrongful death claim was dismissed before the case reached the jury. O'Dea's widow claimed that the New York nursing home never revised her husband's care plan despite his having fallen five times prior to the fall that caused the fracture. Counsel for the nursing home claimed that all necessary preventative measures were put in place. The jury agreed with the plaintiff and awarded damages totalling $275,000. However, prior to the trial the parties agreed to a high/low agreement of $140,000/$75,000. Accordingly, the plaintiffs will receive $140,000.

A Certified Nurse Aide, Dawn Andrews, was recently sentenced to three years probation and 200 hours of community service for neglecting a New York nursing home resident in in a Clinton County facility. CNA Andrews reportedly left a resident with dementia
alone during toileting in violation of the care plan posted on the resident's door. The
resident fell to the floor and suffered a fractured hip.

This is a common fact pattern in many nursing home neglect cases that involve falls result in fractures. In numerous cases our office has handled, residents have either been left unattended while being toileted or simply ignored and left to attempt to walk from their bed to the bathroom on their own despite being at "high risk" for falls. In many instances the problem stems from understaffing on the part of the operators of the nursing home, and is often not the individual employee's fault. In those scenarios, there are simply not enough employees to ensure the safety of the nursing home residents.

Website Resource:

Long-Term-Care Community Coalition, 12/16/09 - 3/15/10 Enforcement Report.