New York Nursing Home Abuse Lawyer Blog

A Registered Nurse and a Certified Nurse's Aide at Beth Abraham Health Services, a Bronx Nursing Home, were recently sentenced after being prosecuted by the Medicaid Fraud Control Unit of the New York Attorney General's Office. A mentally and physically disabled resident with a propensity to wander, eloped from the facility while under the care of RN Dorothy Bain and C.N.A. Vicky Williams. The facility's video surveillance revealed that the resident was not in the facility for six hours. Over that six hour span, both employees documented caring for him and RN Bain documented that she had administered medications to the resident. It is unclear whether the resident was injured as a result of the incident. Allowing a resident to elope from a nursing home facility is obviously fraught with danger. We have handled cases where elopement has resulted in falls, fractures and even death. Here, the nursing staff compounded the problem by falsifying records.

Both Bain and Willaims were sentenced to a one-year Conditional Discharge with the conditions including the surrender of their respective licenses. They both must also refrain from working in the health care field for the duration of the Conditional Discharge.

Website Resource:

Long-Term-Care Community Coalition, Enforcement Actions.

Hilaire Rehab & Nursing, a Suffolk County-based nursing home, failed to meet minimum standards of care in several areas, according to a DOH survey dated June 14, 2011. The DOH gave the facility a one star (out of five possible stars) due to the prevalence of residents with bedsores (pressure ulcers, decubitus ulcers). 21% of residents found to be at "high risk" for developing bedsores had in fact developed a bedsore (the national average in the category is 12%). Among the deficiencies noted was the failure to ensure that the facility remained free of accident hazards and failure to ensure that services are provided by qualified persons in accordance with the care plan.

Title 42 section 483.25(h) of the CFR dictates that a resident must be supervised and provided with assistance devices to prevent accidents. The DOH report details a resident with a history of wandering and barricading herself in her room. Despite this history of barricading, no intervention was in place to prevent the behavior other than 15 minute room checks. As a result, the resident successfully barricaded herself in her room on no fewer than two occasions. The resident, who had a history of dementia and psychotic disorder, also had a roommate. Because of the barricade, the room was not immediately accessible. This could have led to a serious situation/injury had the resident attempted to cause harm either to herself or her roommate. This behavior should have been noted and accounted for in the comprehensive care plan, however it was not, leading to the deficiency rating.

The second deficiency noted above is in violation of section 483.20(k)(3)(ii) of the Code. In this instance, a physician ordered an antibiotic to treat a resident's urinary tract infection, however the medicine was not administered until three days later. The pharmacist stated that the medication was delivered to the home the day following the order. The Director of Nursing conceded that it should not have taken three days to begin administration of the prescription, but little other explanation was given for the delay. Many elderly residents at nursing homes often have numerous prescriptions to take on a daily basis. The staff must ensure that these medications are administered properly. The delay in providing this resident with his or her UTI prescription led to additional pain and discomfort for the resident, and could have resulted in sepsis.

A complete list of Hilaire's deficiencies can be found here on the New York DOH website.

Three nurse's aides at Beth Abraham Health Services in the Bronx were arrested after failing to notice the elopement of a 64 year old schizophrenic patient in a wheelchair, and then attempting to cover-up the incident. Although police found the man approximately six hours later at a friend's home, the aides at Beth Abraham allegedly documented that they had checked on him and given him his medication during the period that he was missing.

Title 10 Section 415.12(h) of the New York Code of Rules and Regulations states that "[T]he facility shall ensure that: (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistive devices to prevent accidents." Clearly, allowing a schizophrenic patient to elope from the facility violates the regulation above. It was the duty of the nurse and her aides to report the missing patient as soon as they were aware of his elopement. That said, what makes the incident much worse is the attempt to cover-up the mistake by falsifying documentation.

Maintaining a safe environment for nursing home residents is a duty and should be a priority for the administration and staff at long-term-care facilities. This is not always the case, however. Diligence must be maintained to be certain that nursing home residents, particularly residents with special mental needs, are cared for in the manner mandated by both state and federal law. Thankfully, in this instance, the NYS Attorney General's Office investigated and plans to hold those responsible accountable.

Website Resource:
Three nursing home aides lied about missing schizophrenic patient in wheelchair: AG, New York Daily News, Kathleen Lucadamo, February 24, 2011

In its June 14, 2010 inspection report, the Department of Health cited Marcus Garvey Nursing Home in Brooklyn for violation of regulations applicable to New York nursing homes. The violation details substandard quality of care with respect to wandering and elopement of patients within the facility.

Title 10 Section 415.12(h)(2) of the Code states: "The facility shall ensure that each resident receives adequate supervision and assistive devices to prevent accidents." The deficiency report details a resident, referred to as Resident #1, with documented and frequent elopement attempts. Although the facility labeled Resident #1 as an elopement risk, his picture was not in the elopement risk photo book at the security desk, nor was he on the elopement risk list. Resident #1 successfully eloped on 5/29/2010. Resident #1 was missing for appriximately seven and a half hours before his family informed the facility that they had located him in the Bronx.

Among its residents, Marcus Garvey Nursing Home had identified nineteen residents as potential elopement risks. Despite this number, the Director of Nursing was unaware of the facility's use of wander guards to prevent elopement, stating that she "did not really read the policy." The facility Administrator was unaware of the Residents at Risk for Elopement book, stating that photos of such residents are posted by the security desk. At the time of inspection, two pictures were posted on the security desk wall.

Wandering and elopement pose a serious threat to elderly nursing home residents. Unmonitored wandering can lead to falls and fractures, among other consequences. Merely identifying residents who pose such a threat to themselves is not enough. Facilities must ensure that these residents are not allowed to wander and create additional risk for themselves. An individualized comprehensive care plan is a necessary first step. Following through on these care plans is equally, if not more, important.

Website Resource: New York State Department of Health

A Department of Health (DOH) study regarding the 2008 elopement of a 59 year old woman at Fieldston Lodge Care Center in Riverdale, NY found the facility's measures to prevent such wanderings lacking. The patient, identified in the report as "Resident # 1," entered the facility in November, 2007 with diagnoses ranging from Hypertension to paranoid Schizophrenia. Upon admission, the facility recognized that Resident # 1 was an elopement risk, both through its elopement risk assessment tool and the Comprehensive Care Plan. She was fitted with a wanderguard, among other standard interventions for elopement

Fieldston documented that Resident # 1 grew increasingly anxious about leaving the facility and returning home. Her score on the elopement assessment tool increased as well. Despite these warning signs, Fieldston implemented no additional interventions or monitoring. On August 16, 2008, Resident # 1 left the facility of her own volition. Not until August 19 did three staff members finally find the resident in her apartment building. Luckily, she was not seriously injured.

The Code of Federal Regulations and the NY Public Health Laws have very specific requirements to ensure the safety of residents and the prevention of neglect on the part of the facility. The Department of Health cited two relevant sections in its write-up of Fieldston. Title 42 Section 483.13(c) of the Code of Federal Regulations states that "[t]he facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property." Additionally, Title 42 Section 483.25(h) sets forth that: : "The facility must ensure that (1) The resident environment remains as free of accident hazards as possible; and (2) Each resident receives adequate supervision and assistance devices to prevent accidents." The DOH cited each of these sections in its deficiency report for Fieldston. In a situation fraught with risk as in the case of Resident # 1, the Department of Health demands that a certain standard of care be maintained by the facility with respect to the patient. In this case, the department obviously felt that this standard was not met.

Website Resource: Department of Health

Elant at Brandywine, a Westchester County nursing home in Briarcliff, New York was recently fined $38,150 by the U.S. Federal Government based on findings of substandard care made by surveyors during a September 2, 2009 investigation. According to the inspection report, surveyors cited the facility for failing have systems in place to adequately monitor and prevent residents with cognitive impairment and/or unsafe wandering or elopement behaviors from exiting the facility undetected.

The surveyors uncovered that a cognitively impaired resident who had eloped from the facility 2 days prior, eloped again during the night, and was found approximately 3 ½ hours later more than 3 miles from the facility by a staff member on her way to work. The staff had not placed a Wanderguard, a monitoring device, on the resident as would have been appropriate given her medical history. Elant at Brandywine received an immediate jeopardy citation, the most serious classification, as a result of this incident.

Elopement occurs when a nursing home resident, usually a resident with Alzheimer's or dementia, is allowed to exit the facility without supervision. Elopement of cognitively impaired nursing home residents can result in falls, fractures, brain injuries, hypothermia or heat stroke.

Website Resources:

New York State Dept. of Health, Elant at Brandywine, September 2, 2009 Survey.
Long-Term-Care Community Coalition, 9/09-12/09 NY Enforcement Action Report.

A former nursing assistant in an Illinois nursing home recently admitted in court that she failed to properly ascertain the whereabouts of all residents after a door alarm sounded at approximately 2 am in the winter. Instead of conducting a bed check after the alarm sounded, the nursing assistant returned to watching television. She later conducted a bed check at approximately 5 am and found that an 89 year-old resident was missing.

The resident's frozen body was discovered in the courtyard of the facility. She had fallen and injured her chin and leg, and eventually died from hypothermia. Local police also reported that the aide tried to cover-up the incident by returning her to her bed and changing her clothes. A civil lawsuit has been commenced by the resident's family alleging nursing home neglect and abuse and wrongful death.

Gold Crest Care Center in the Bronx, New York was fined $18,712.504 for substandard nursing home care found during an August 28, 2008 inspection. The fine was levied by state inspectors for numerous deficiencies, including an immediate jeopardy finding (the most severe category).

A resident suffering from dementia with a history of wandering was allowed to walk out the front door of the nursing facility undetected. Inspectors found that a care plan for wandering was not properly implemented and that the nursing home staff failed to provide adequate supervision. The Gold Crest staff was to perform "visual checks" on the resident every hour. However, she went missing for three hours before reappearing at an area hospital.

Please contact the attorneys at Gallivan Gallivan if you or a loved one has fallen victim to elder abuse or neglect. .

Jurors awarded plaintiff Elaine Stinson $1.34 million in a California nursing home abuse and neglect case. The jury found that Leisure Palms nursing facility had recklessly neglected the plaintiff in failing to implement proper fall precautions. The plaintiff suffered three falls over a two month period, the last of which resulted in a punctured lung and three broken ribs.

In addition, after the fall, staff members placed the plaintiff back in her bed instead of sending the resident to the hospital and reporting the incident. In fact, Emergency Medical Services were not called at all by the Leisure Palms staff. Upon arrival the next morning, the plaintiff's husband called EMS once he saw his wife's condition. Surgery was performed that day at the hospital.

The breakdown of the verdict is below:
1) $88,000 for past medical bills,
2) $500,000 for pain and suffering, and
3) $750,000 in punitive damages.

Attorneys for the plaintiff have also filed a motion demanding attorney's fees, court costs and expert fees. Prior to trial, the Department of Social Services had investigated the family's complaints and cited Leisure Palms for its unsafe practices. Despite these findings, the nursing facility maintained that its staff members had acted appropriately. For more information regarding this important California verdict, please click here.

Based on a January 18, Department of Health inspection, Eastchester Rehabilitation Center in Bronx, New York was cited for failing to prevent abuse. An 88 year-old resident suffered from dementia and hypertension. She exhibited signs of an impaired memory and impaired decision-making, and had a history of wandering into other resident's rooms.

The Certified Nursing Assistant Accountability Records for the period at issue called for the resident to be monitored every half hour. However, no documentation of the half hour visual observation checks could be found in the nursing home chart. The nursing home's care plan also called for the resident to be re-directed if observed wandering. After multiple instances of wandering into other resident's rooms and one incident where the resident was struck by another resident, no new interventions were implemented by the nursing home staff.

A few months later, the resident was observed entering another resident's room and then physically thrown back out of the room. The 88 year-old resident suffered a fractured right forearm as a result. The resident was transferred to the hospital and returned with a cast from the right upper arm extending through the forearm. In addition, based on the inspection report, the resident was found twice subsequent to the fracture with unexplained ecchymosis and bruising to her left eye. However, again, no additional interventions were put in place by the nursing home to prevent further abuse.

Morris Park Nursing & Rehabilitation Center, a Bronx, New York Nursing Home, failed to keep the facility free from hazards and failed to properly supervise its residents, according to a June 10, 2008 Department of Health survey. The failures were found to place the Bronx nursing home's residents in immediate jeopardy.

Surveyors found that the call bell systems on 2 of the 5 floors were not functional. Call bells provide residents with the important opportunity to call for assistance when necessary. Without a response to a call bell, impaired residents often resort to attempting to perform tasks for which they would otherwise require assistance (eg. going to the bathroom). The surveyors also noted that potentially dangerous items were left within the reach of residents who were know to have cognitive deficits (residents known to wander). These residents has access to an unlocked electrical unit, as well as an unlocked janitor's closet.

In addition, 19% of residents considered at "high risk" for pressure sores (bed sores, decubiti) were determined to have pressure sores (national average = 12%) and 26% of "short-stay" residents had pressure sores (national average = 14%). Morris Park recieved 38 total deficiencies (state average = 24).

Attorneys at Gallivan & Gallivan are dedicated to protecting the rights of elderly New Yorkers. Please contact us if you or a loved one has been the victim of elder abuse or elder neglect.

The family of an 89 year-old nursing home resident has filed a lawsuit accusing an Illnois nursing home of failing to provide adequate supervision of their mother, resulting in her untimely death.

The resident was found outside of the nursing home facility in a nightgown. She was wearing an ankle bracelet that should have triggered an alarm when she went through an exit door. She froze to death in the facility's courtyard. The resident suffered from dementia and the family indicated that she was so weak that she could not even get dressed on her own.

Residents with dementia require a higher level of supervision. Care plans should be implemented by the nursing home to ensure that residents with dementia are monitored regularly and that appropriate safeguards are utilized. At Gallivan & Gallivan, we are committed to protecting the rights of the elderly, our most vulnerable citizens. If you or a loved one was the victim of the neglect of a New York nursing home, please contact us for a free consultation.

Website Resources:

Family sues Itasca nursing home over cold-related death of woman, 89, Chicago Tribune, Robert Mitchum, February 12, 2009.

Norwegian Christian Home and Health Center, a nursing home in Brooklyn, NY, was cited for failing to ensure that residents received adequate supervision. Based on an inspection by the Department of Health on August 6, 2008, a 93 year-old male resident eloped (wandered) from the facility undetected through a door that failed to alarm and staff were unaware the resident was missing.

Although the nursing home's care plan called for providing ID bands/pictures at security
post, 15 minute visual checks and the use of a wander guard on the resident's left ankle, the resident went missing at approximately 10:30 am. Fortunately, at approximately 1:00 pm, the resident was found sitting on a stoop in the neighborhood and was taken to the hospital. The resident resident was not wearing his ID bracelet and had not been observed by the nursing staff since 9:30 am (despite the need for 15 minute checks).

As a result of this incident, the Department of Health found that:

A. The facility failed to ensure that front desk personnel and security officers responsible for
monitoring the door access system were trained regarding the purpose, function and operation of the system; and
B. The facility failed to implement policies and procedures to ensure that facility staff provide supervision to residents who were identified as being at risk for elopement.

Luckily, the resident was not injured. However, the facility received the most serious type of citation (Immediate Jeopardy) due to the potential severity of injury to the resident.

The attorneys at Gallivan & Gallivan have handled matters where the elopement of a nursing home resident has resulted in serious injuries. Please contact us if you or a loved one has been injured due to a nursing home's failure to provide adequate supervision to its residents.

Many states are considering using "silver alerts" (similar to the amber alerts used missing children) in attempt to find elderly individuals who have gone missing. Many individuals suffering from dementia and/or Alzheimer's wander as part of their disease process. The Alzheimer's Association estimates that 6 of 10 adults suffering from Alzheimer's will wander away from their caregivers at least once. In the nursing home setting, wandering without appropriate supervision often leads to falls.

The "silver alerts" would be used to notify law enforcement and the general public through media outlets in order to spread the word of the missing person. Last week, Connecticut's State Senate endorsed a proposal to introduce the use of "silver alerts." It is unclear whether similar measures are being contemplated here in New York.

Website Resources:

States consider 'Silver Alerts' for missing adults, Journal News (Associated Press), May 3, 2009