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Legal Representation

The attorneys at Gallivan & Gallivan provide effective, aggressive representation to individuals injured in the New York area. Our priority is to maximize the recovery of our clients injured due to the neglect of others.

A recent study estimates that financial abuse of elderly Americans defrauds these vulnerable citizens of almost $37 billion each. The report finds that almost 5 million senior citizens in America are victims of elder abuse each year. In New York alone, financial abuse of the elderly costs at least $1.5 billion a year. While the exact nature of financial abuse can be hard to notice for senior citizens with cognitive impairments, the legal definition perpetuated in the Older Americans Act of 2006 criminalizes “the fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual… that uses the resources of an older individual for monetary or personal benefit, profit, or gain, or that results in depriving the older individual of their use or rightful access to benefits, resources, belongings, or assets.”

The report in Bloomberg Businessweek provides a sad, but unfortunately typical, portrait of elder abuse in 82-year-old Marjorie Jones, who one day received an anonymous call stating she had won a sweepstakes. According to the caller, Jones, who was legally blind and lived alone, would need to pay the taxes and fees on the winnings before the winnings from the sweepstakes could be released to her. After wiring the money to the anonymous caller, more stipulations and conditions became attached and Jones continued to send the money until she had depleted her entire savings, taking out a reverse mortgage on her home, and cashing in on a life insurance policy. Instead of reaching out to her family for help, an ashamed and embarrassed Jones killed herself.

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State investigators in Raleigh, North Carolina have captured several nurses cruelly abuse an elderly man at a retirement home on a hidden camera. The hidden camera was set up after an elderly man told his daughter that the orderlies had been “tormenting and neglecting him,” according to WRAL. In response to the incident, state investigators are investigating the nursing home.

According to the news station, the video shows Richard Johnson, 68 years old and recovering from a stroke, fall out of his bed. After crying out for help, several orderlies pass by and ignore the elderly man for over an hour. When staff members finally arrive they immediately begin berating and cruelly taunting the senior citizen, asking “What are you doing there? Why are you on the floor?” Another nurse joined in on bashing the vulnerable man, stating “You had to do something very wrong with your life. What did you do? You’re suffering so bad, so you’ve done something wrong. Yes, you did.”

According to Richard Johnson’s daughter, Johnson even went to the bathroom while on the floor waiting for help. This unfortunate incident prompted a third member of the nursing staff to scold him, saying “How old are you? One? You’re supposed to be enjoying your retirement. Instead, look what you are doing, pooping on yourself. Shame on you.”

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Between 2014 and 2018 Beach Gardens Rehab and Nursing Center in Queens, New York received 92 complaints by its residents and 19 citations by the New York Department of Health. The Department of Health inspects all nursing homes throughout the state every 9 to 15 months to ensure their compliance with all laws regulating nursing homes and the treatment of their residents. These are several of the citations the Queens nursing home received over the last few years:

1. The nursing home failed to prevent pressure ulcers or bed sores.
Beach Gardens Rehab and Nursing Center received a citation in June 2017 for failing to prevent its residents from receiving pressure ulcers. Under Section 483.25(c) of the Federal Code, all nursing homes must “ensure that a resident who enters the facility without pressure sores does not develop pressure sores…” Further, if a resident does have pressure sores then the nursing home is obligated to provide “necessary treatment to promote healing, prevent infection and prevent new sores from developing.” In this instance, the New York Health inspector randomly sampled three residents at the facility that had not entered with pressure ulcers. According to the inspector, one of these residents later developed a pressure ulcer on their left heel after the nursing home failed to use preventative measures, despite documentation that the resident posed a moderate risk for pressure ulcers.

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A recent report by StatNews shows that many nursing homes across the country are refusing to admit elderly Americans with opioid addictions, and failing to effectively treat those with addiction already placed in their care. According to the newspaper, elderly Americans who have been prescribed methadone or buprenorphine, medications commonly used to treat opioid addiction, face the “next to impossible” task of being admitted to a nursing home. According to experts cited by the newspaper, many facilities fail to admit these patients because “of stigma, gaps in staff training and a widespread misconception that abstinence is superior to medications for treating addiction.”

Nursing homes appear unaware that denying admission because of an opioid addiction violates the Americans with Disabilities Act. According to a nurse at Boston Medical Center, only two nursing homes in Boston accept patients taking medication for an opioid addiction. According to the Department of Justice, the government is planning to increase enforcement of facilities that discriminate against individuals taking prescription medication for opioid addiction. Currently, the government agency is looking at detention centers and prisons to ensure compliance. However, the Department of Justice has promised to extend the enforcement push to nursing homes within the year.

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Monitoring and reporting of elder abuse is one of the most important responsibilities delegated to New York regulators. However, recent news reports have cast a light on the accuracy and effectiveness of these reports. Advocates for elder care say the data collected by regulators does not effectively represent the harm caused to nursing home patients when the facilities violate state or federal regulations. Based on the evidence provided, it appears these advocates may be correct.

According to the Centers for Medicare and Medicaid Services (CMS), only 4 percent of all regulatory violations result in “actual harm” to a resident at its facility. While the data is collected at a federal level, state regulators are required to perform the inspections and relay the information to CMS. In New York, the legal entity responsible for inspecting nursing homes is the New York Department of Health.

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A Pennsylvania judge allowed a lawsuit against a nursing home seeking punitive damages over a patient’s pressure ulcer to proceed to trial, according to Law360.com. The lawsuit, filed in 2016, alleges that a nursing home’s reckless behavior allowed for a resident to develop multiple pressure sores. Sadly, these pressure ulcers, now referred to as pressure injuries, caused the nursing home resident’s death only months afterward.

The nursing home resident, Mary Ann Miller, entered the nursing home in November 2015 after a broken hip. According to nursing home regulations, Miller’s broken hip and resulting immobility qualified her as “high-risk” for developing pressure ulcers, or bedsores. Unfortunately, the nursing home did not sufficiently monitor Miller, who was originally only intended for a short-term stay while her hip healed. Unable to move and not properly cared for by the retirement home, Miller developed multiple pressure ulcers on her back and heels. After causing the pressure ulcers through its negligence, the lawsuit further alleges the nursing home failed to adequately treat the bedsores.

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Elderly New Yorkers should carefully examine a nursing home’s finances before making their final decision, according to The New York Times. While full-blown insolvencies are rare, a poorly-run nursing home can offer a “bait-and-switch” type of scheme that lures the elderly in with its low costs, only to reduce services and increase costs in the years to come. According to the newspaper, elderly residents looking to join nursing homes or retirement communities with “joining” or entrance fees should be especially diligent about researching the finances of their facilities. These introductory fees, which can range between several hundred thousand to over a million, will not be returned if the nursing home fails to deliver services or increases its fees in the years, or decades down the road.

With little government regulation on the finances of these of retirement homes or retirement communities, potential residents must perform their own due diligence to ensure their future is safe and secure. This research can be performed by utilizing websites, such as Carf.org or MyLifeSite.net. However, these websites offering information about the finances of nursing homes usually charge a fee.

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A recent report released by Kaiser Health News shines a light on the diminished quality of care received by many senior citizens at for-profit nursing homes. The Kaiser Health study found that the average for-profit nursing home receives twice as many complaints by its residents and their families. Further, the research group also found that:

For-profit nursing home chains had an average of 8 percent fewer nurses per residents when compared to independent nursing homes.  Nursing homes that operated for a profit received almost twice as many validated complaints.  For-profit nursing homes received 22 percent more fines, and the fines levied against them were 7 percent higher.

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Mirroring national trends, elderly Americans are beginning to use more addictive prescription drugs. In a report by the New York Times, the number of prescriptions for benzodiazepines, a class of anxiety drugs which includes Xanax and opioids have markedly increased in the last couple decades. Not only do these addictive drugs have serious side effects, they can be deadly to the user, sometimes even when taken as prescribed.

According to the newspaper, the number of benzodiazepine prescriptions for Americans over the age of 65 increased 8.7 percent between 2003 and 2010, the year with the most recent data available. A 2008 study indicated that about 9 percent of adults between 65 and 80 took one of these anti-anxiety drugs. The Centers for Disease Control (CDC) paints an even more ominous picture of the problem – the number of deaths caused by benzodiazepines in Americans over the age of 65 rose from 63 deaths in 1999 to 431 in 2015. In 1999, opioids were a contributing cause of 29 percent of these deaths. A mere fifteen years later, opioid drugs now contribute to two-thirds of deaths caused by benzodiazepines.

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A recent report by the Centers for Medicare and Medicaid Services (CMS) found that individuals with mental health or behavioral problems are more likely to be denied access to higher-quality nursing homes throughout the country. The study relied on data from 3.7 million admissions in 15,600 facilities across the country and found that, while elderly Americans with any type of mental health problem faced more difficulty, those diagnosed with more severe illnesses faced even longer odds of admittance. According to healthcare analysts, this is likely a combination of concerns surrounding individuals with mental health problems and a lack of high-quality nursing homes in lower-income areas, which are more likely to have senior citizens with mental health challenges.

CMS assigns a “grade” to each nursing home based on the number of staff at each facility relative to the number of residents, quality benchmarks and the results of health inspections. CMS then assigns a set number of stars to the facility representing its quality, with a one-star facility providing the lowest quality care and a five-star facility providing the highest.

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