New York Nursing Home Abuse Lawyer Blog

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.

The Department of Health has fined Mosholu Parkway Nursing and Rehabilitation Center in the Bronx, NY over $55,000 for numerous violations, the most disturbing of which relates to an issue that has been discussed previously on this blog, the failure to keep the facility free of accident hazards. In this particular instance, a resident who was known to be an "unsafe smoker" was severely burned over sixty percent of his body while smoking unsupervised.

According to the facility's own policies, residents are not allowed to smoke unless supervised. This supervision must be maintained during the entire period that the resident is smoking, which is permitted in the "quiet room." At no time are the residents allowed to have their own smoking materials, i.e. matches and cigarettes, but rather these are dispensed by the staff as needed.

On this occasion, the resident is seen on video in his wheelchair moving to and from the quiet room with no supervision. He lights a cigarette on his own with matches that he produces from the side of his wheelchair. At some point thereafter, although not seen on the video, the resident lit himself on fire while unsupervised in the smoking room.

In addition to violating CFR 483.25(h), Mosholu Parkway Nursing Home violated its own policies and procedures in this instance. The staff, however, failed to meet these internal standards. This failure affects not only the resident in question, but also all other residents who are exposed to a fire hazard. A situation such as this can prove to be deadly both for the smoker and for other residents in the event they become trapped in a burning building.

The complete DOH report, including violations for failure to prevent abuse and neglect, and failure to train employees in emergency procedures, can be accessed here.

In a certification survey from January of this year, the Department of Health cited Suffolk Center for Nursing and Rehab, a Patchogue, New York nursing home, for multiple deficiencies. Included in the DOH report were lack of proficiency of nurse's aides, and failure to ensure that residents are free from medication errors.

The survey found the facility deficient with respect to Title 42 Section 483.75(f) of the Code of Federal Regulations, Proficiency of Nurse's Aides, when it was discovered that a resident with a known history of falls was left alone in and around the shower. Fortunately, the resident did not fall on this occasion. However, the CNA admitted that he was aware of the resident's fall history and still left him alone in order to get supplies. A resident with a history of falls should never be left alone while mobile, particularly in an area as precarious as a bathroom or shower. Clearly this behavior by the CNA showed a lack of competency in caring for such a patient.

Section 483.25(m)(2) of the Code mandates that the facility must ensure that residents are free of any significant medication errors. In the incident documented in the report, medications were not received as ordered, and in one case the facility did not ensure that the resident actually took her medication. In an environment in which residents are on a very strict regimen of medication, coupled with the fact that many residents are unable to care for themselves, this behavior on the part of the facility is unacceptable. As the survey notes, instances such as this have the potential for more than minimal harm.

The entire list of deficiencies is too numerous for a single entry. A copy of the Detailed Deficiency Report can be found at the DOH website, 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

The Long-Term-Care Community Coalition's Fall 2011 report on nursing home enforcement actions was recently released. According to the report, the following New York nursing homes were sanctioned by the federal government for failing to comply with quality care requirements. The amount of the civil money penalties, as well as the date of the inspection that lead to the punishment are also listed below. We have discussed some of the specific incidents of nursing home neglect and abuse that resulted in the penalties in previous posts.

Absolute Center For Nursing and Rehab, Endicott, 7/22/09, $2,000

Bishop Henry B Hucles Episcopal Nursing Home Brooklyn 11/30/09 $12,000

Brooklyn United Methodist Church Home Brooklyn 3/8/10 $22,000

Chataugua County Home Dunkirk 1/6/09 $10,000

Elant at Newburgh Inc. Newburgh 9/2/09 $72,000

Franklin County Nursing Home Malone 6/26/09 $8,000

Grandell Rehab and Nursing Center Long Beach 7/29/10 & 1/26/10 $34,000

Guilderland Center Nursing Home Guilderland Center 9/10/09 $10,000

The Hamptons Center for Rehab and Nursing Southampton 7/30/10 $10,000

Jewish Home and Hospital-Bronx Bronx 6/23/09 $6,000

Medford Multicare Center for Living Medford 3/17/10 $10,000

Medford Multicare Center for Living Medford 4/1/09 $12,000

Mount Loretto Nursing Home Inc. Amsterdam 7/6/10 $10,000

Northern Riverview Health Care Center, Inc Haverstraw 4/8/10 $24,000

Petite Fleur Nursing Home Sayville 4/9/10 $10,000

St. Johns Health Care Corporation Rochester 9/27/10 $10,000

Sullivan County Adult Care Center Liberty 4/16/09 $10,000

Summit Park Nursing Care Center Pomana 12/4/09 $10,000

Sutton Park Center for Nursing and Rehab New Rochelle 6/18/09 $4,000

Sutton Park Center for Nursing and Rehab New Rochelle 1/19/10 $10,000

Van Duyn Home and Hospital Syracuse 11/13/08 $2,000

Wayne Health Care Newark 7/9/10 $2,000

Westmount Health Facility Queensbury 2/25/10 $2,000

Wyoming County Community Hospital SNF Warsaw 3/19/09 $10,000

Late last week, the New York State Department of Health discontinued Soundview's participation in the state's Medicaid program. Citing lack of a Medicaid Compliance Plan on the part of Soundview, the DOH has removed the home from Medicaid participation effective September 12th of this year. The Department acted upon recommendation by the Office of the Medical Inspector General, which noted lack of compliance with state Medicaid regulations and shortcomings within the home's operations.

Soundview residents receiving Medicaid benefits will not be denied access to medical care. The DOH ruling does not immediately impact those residents receiving aid from Medicare or private insurance.

Title 18 Section 521.3(a) of the New York Administrative Code states that all providers "shall adopt and implement an effective compliance program." Such compliance programs are applicable to billing, payments, and mandatory reporting, among other operational aspects of healthcare providers. Based on the findings of the OMIG, the Department of Health found this compliance lacking in the case of Soundview, and thus stripped it of its Medicaid eligibility.

Website Resource: New York State Department of Health

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.

According to a New York State Department of Health Deficiency Survey released recently, a Certified Nurse Assistant (CNA) at Fieldston Lodge Care Center in the Bronx broke an elderly resident's arm in January of this year. Reportedly, the CNA was attempting to perform incontinence care on the female resident. When the resident resisted, claiming that she did not need the care at that time, the CNA grabbed the resident by the arm and twisted, causing a fracture of the distal ulna joint.

The allegations set forth by the resident are quite disturbing. Equally, if not more disturbing, is the manner in which the facility itself handled this situation. The alleged incident occurred on the afternoon of Sunday, January 2nd. There was no documentation of the occurrence in the January 2nd Daily Patient Care Report. Furthermore, although a different nurse responded to the resident's cries for help, an x-ray, the results of which displayed the fracture, was not ordered until the following morning.

Title 42 of the Code of Federal Regulations, section 483.25 states that "Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being." Additionally, section 483.13(b)makes clear that "The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." Certainly, if the resident's allegations are true, the facility is in direct violation of these provisions of the Code. The Code guarantees the rights of residents of nursing homes and assisted living facilities. Incidents such as the one documented above, while unfortunate, reinforce the necessity of maintaining the highest levels of staffing at such homes, in order to prevent future episodes from arising.

NYS DOH Survey, Fieldston Lodge Care Center, March 12, 2011

A recent study published in The Archives of Internal Medicine, and conducted by the federal Agency for Healthcare Quality and Research, suggests that narcotic-based painkillers taken for arthritis may pose significant bone and cardiovascular risks to the elderly. While it had been a widespread belief that narcotic painkillers, such as OxyContin, were safer for the elderly than their non-narcotic counterparts, this new study suggests otherwise.

Compared with two other control groups, patients taking narcotic-based painkillers were four times more likely to experience bone fractures resulting from falls, and also twice as likely to suffer heart attacks. The researchers did qualify the results, stating that results may have been affected by continued use of over-the-counter medicines. Additionally, as in any study, researchers noted that outside factors could have played a role in the results. The overall results are somewhat disturbing, however, particularly for patients and doctors who had been under the impression that narcotic-based pain medication was a safer alternative to non-narcotics.

Ultimately, medication and treatment decisions rest with the doctor, patient, and his or her family. This new study, however, does provide additional information to consider when making such decisions.

Website Resource: Narcotic Painkillers May Pose Danger to Elderly Patients, Study Says

New York Times, Barry Meier, December 13, 2010

The New York State Department of Health (DOH) has cited Elant at Newburgh in Orange County, NY of numerous violations of the state's Public Health Laws. Graphic at times, the report chronicles the deficient care that several residents received throughout their stay at Elant.

As this blog has noted several times in the past, Public Health Laws regarding the prevention and treatment of pressure ulcers articulate very specific standards of care that facilities must maintain with respect to their patients. The extensive document that the DOH recently released to the public details a number of incidents at Elant during which these standards of care were neglected, unknown, or seemingly ignored. In certain cases, the development of pressure ulcers in elderly residents of nursing homes is an unfortunate, yet unavoidable, occurrence. The facility's duty is to ensure that safeguards are in place to prevent avoidable sores. The practices at Elant depicted in the DOH report not only seem to disregard this duty, but also to quicken the development of pressure ulcers in already debilitated patients.

Residents suffering from incontinence are particularly susceptible to pressure ulcers. Title 10 Section 415.12(d) of the New York Administrative Code states that: "Based on the resident's comprehensive assessment, the facility shall ensure that: (1) a resident who is incontinent of bladder receives the appropriate treatment and services to...restore as much normal bladder function as possible." Yet, at Elant, a tour of the facility revealed that, among other deviations from standard care, 8 of 8 Certified Nursing Assistants (CNA's) interviewed were unaware of the facility's toileting program, and 7 of 8 CNA's demonstrated poor infection control techniques during perineal care. Section 415.12(c) of the Code mandates that the facility ensure that "(2) a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing." Again, the CNA's at Elant failed in this charge, with 5 of 8 interviewed stating that they would not report open skin areas to the charge nurse. On one occasion the Director of Nursing was intervewed following a comment by a Licensed Practical Nurse who posited that a pressure ulcer with a scab was "healed." The Director's response: "No, by no means. I'm so embarassed."

The work of Nursing Home facilities is difficult and intense. This does not excuse a lack of proper care and knowledge by the staffs of such facilities. Based upon the DOH report, it seems that Elant has significant work to do to ensure that it brings its staff members up to date on current acceptable practices for elder care.

Website Resource: New York State DOH

Medicaid fraud investigators filed a civil suit against New York City government this past Tuesday, January 11, 2011. The suit claims that city officials green-lighted round the clock in-home care for thousands of elderly New Yorkers, many of whom were in need of nursing home care. In normal cases, to justify twenty-four hour care, recommendations are required from a patient's doctors and nurses. The suit alleges that in many of the cases in question, this step was overlooked or ignored by the city.

Due to the increased cost for twenty-four hour, in-home care, Medicaid claims that these patients accrued additional costs of millions of dollars, unnecessary spending in its opinion. It will be up to a federal court to decide whether this alleged mishandling of patient appropriation indeed amounts to fraud, or if The City was in fact in the right by approving the in-home care.

Website Resource: As New York City Defends Medicaid Approvals, Fear of Suit's Fallout Grows New York Times, Anemona Hartocollis, January 12, 2011

A New York State Department of Health certification survey dated April 8 of last year cited Northern Riverview Health Care Center, located in Haverstraw, NY, for failure to provide proper treatment to prevent/heal pressure sores (bedsores, decubitis ulcers). The findings discuss the development of pressures sores in no fewer than five residents of the facility.

The findings detail a pattern of miscommunication between physicians, nurses, and nurse aides throughout the facility. One resident, referred to in the survey as Resident #18, was admitted to the facility on Christmas Eve, 2008 with risk factors noted for the development of pressure sores, although the resident's skin was intact at the time of admission. Although the resident was confined to a wheelchair, no evidence was readily available to prove that interventions were taken to prevent pressure ulcers to the resident's buttocks. As a result, the resident did, in fact, develop a Stage I pressure ulcer on the left buttock on or around November 15, 2009. Over the next two and a half months, through February 2, 2010, the ulcer deteriorated to a Stage IV pressure ulcer. This is a violation of 10 NYCCR 415.12(c)(2), which states that a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.

Unfortunately for both Northern Riverview and its residents, Resident #18 was not the only occupant to experience the development and/or exacerbation of pressure sores. Delays in diagnoses, incomplete/unfollowed care plans, and unapplied interventions led to the development of pressure sores in at least four other residents at the facility.

Grandell Rehabilitation and Nursing Center in Long Beach, NY was recently fined $32,207.50 by the Federal government stemming from a January 26, 2010 NYS Department of Health Complaint Survey. Surveyors found that the facility failed to provide medically related social services to attain the highest practicable, physical, mental and psychosocial well-being of each resident.

Tragically, a resident with a history of attempted suicide and a recent psychiatric hospitalization for suicide ideation did not have a care plan developed to provide supervision preventing potential self harm. The 78 year-old resident subsequently committed suicide. Further, the facility failed to address the needs of 18 other residents with known histories of suicidal ideation or negative statements.

Surveyors did not find any documented evidence that the facility developed, implemented or trained social work staff in the assessment of residents, who have suicidal ideations or suicide attempts.

Website Resource:

LTCCC Fall Report 2010.

Uihelm Nursing Home in Lake Placid, New York was recently fined over $75,000 by the Centers for Medicare & Medicaid Services following a New York State Department of Health survey. The surveyors found nine violations that constituted immediate jeopardy to residents' health and safety, one violation that caused actual harm to residents and three that had the potential for more than minimal harm.

The vast majority of the violations stemmed from the death of an 81-year-old male resident due to a medication error. The man was reportedly admitted to the nursing home facility from a nearby hospital in Saranac Lake. Upon discharge from the hospital, 0.125 milligrams of Xanax, an anti-anxiety drug, every two hours was mistakenly transcribed as 1.25 mg every two hours by an Uihelm staff member.

The resident was given two 1.25 mg doses of Xanax and fell into a coma. Five hours then passed before the situation was reported to a physician.

Website Resource:

Uihlein draws major fine, Adirondack Daily Enterprise, Jessica Collier, June 17, 2009.

New Rochelle, New York nursing home, Sutton Park Center For Nursing and Rehabilitation, was fined $32,630 based on findings from a June 18, 2009 NYS Department of Health survey, according to the Long-Term-Care Community Coalition's spring 2010 newsletter. According to the NYS surveyors, the nursing facility failed to provide necessary care and services that meet acceptable standards of clinical practice.

The facility failed to ensure staff members were knowledgeable of resident's advance directives and knowledgeable of the facility's cardiopulmonary resuscitation (CPR) procedure. The administration of the home failed to develop and implement effective policies and procedures for responding to emergent situations. Sutton Park reportedly had three different policies and procedures for CPR.

Additionally, the facility failed to ensure that adequate CPR trained staff were present on all shifts. More specifically, a staff member failed to provide CPR when a resident was found unresponsive and identified by the LPN with advance directives for resuscitation.