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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.

Governor Andrew Cuomo has taken a stand against elder abuse by signing a new law that requires state agencies to develop guidelines to help better identify elder abuse. According to Gov. Cuomo, the new guidelines will be proactive by establishing guidelines to help identify cases of elder abuse, self-neglect and maltreatment and comprehensive by following-up with any at-risk senior citizens. Further, these guidelines will be shared not only with state agencies, but also with healthcare providers who are often in the best position to identify potential elder abuse.

This new law hopes to increase the reporting rate by educating and empowering neutral third-parties that frequently interact with senior citizens in the state – including government agencies, healthcare providers and even banks. According to Assemblywoman Donna Lupardo, sponsor elderly-woman-on-phone-300x200of the bill, involving the healthcare industry will be pivotal in countering “one of the most under-reported crimes” in the nation. Because the doctor-patient relationship generally involves an implicit trust and regular interactions (especially for elderly citizens), Lupardo notes that healthcare providers are in the best position to assess and monitor potential elder abuse. Continue reading

The Inspector General for the Department of Health and Human Services (HHS) released a report stating that at least one in four instances of elder abuse or neglect are not reported. While horrific in scope, the results are not entirely surprising – other, smaller samples have found that 15 to 20 percent of elder abuse cases were not reported to the proper authorities or government agencies. The most recent study, released by the HHS Inspector General, based its findings on a large sampling of cases spanning 33 states. The study, which pegged the underreporting rate at exactly 28 percent, was released with a demand that Medicare take “corrective action right away.”

Despite mandatory reporting laws by both the federal government virtually all states, the rathelpe of under-reporting remains stubbornly high. On the federal level, nursing homes are required to report any incidents involving a suspected crime immediately and any other case of suspected elder abuse within 24 hours. The Centers for Medicare and Medicaid Services (CMS) can fine nursing homes up to $300,000 for failing to comply with the law. While such a strict timeline and the possibility of hefty fines would typically discourage non-compliance, the HHS report shows that the law requiring reporting of any elder abuse – whether physical, financial, sexual or otherwise – is mostly unenforced by CMS.
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As part of President Trump’s promise to roll-back federal regulations, the Trump administration has announced its intention to scrap a federal rule prohibiting nursing homes from requiring their residents to pursue legal claims through arbitration.

In the simplest terms, arbitration is a catch-all term for a dispute-resolution that, while legally binding, does not utilize the court system. The practice has exploded in popularity in recent decades – especially among larger corporations and nursing homes. These entities prefer arbitration because the costs are generally lower, the dispute resolution process moves much faster than the courts, and parties generally do not have a right to appeal thus providing both parties some finality to their dispwalking-out-300x225ute. Opponents of arbitration say the extra-judicial process favors corporate interests and curtails the rights of victims – from limiting discovery to removing the opportunity to appeal. Further, arbitration also removes the right for a person to have their case heard before a jury, and instead substitutes a so-called “neutral arbitrator.”
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A group home for the disabled, run by the State of New York, in Rome, N.Y. is facing calls for a federal investigation after an explosive report was leaked by the Associated Press detailing a resident who, on two separate occasions, was so severely neglected that he became infested with maggots. The resident, Steven Wenger, has been unable to walk, speak or breathe without a ventilator since a tragic car accident 26 years ago. According to the AP, both infestations were found in and around Wenger’s ventilator.

resident-left-in-empty-hallNew York State officials confirmed that the infestations had been caused by neglect. The officials also confirmed that the caregivers were not disciplined in any way, but that the state had “increased training.” In New York, which is responsible for providing care to over 1 million disabled people, the responsibility for neglect probes are overseen by the Justice Center for the Protection of People with Special Needs (“Justice Center”) who declined to provide any data or information about the particular case. Continue reading

As more than 10,000 Americans join the 65-and-over club daily, financial exploitation of the elderly is becoming increasingly more common and states are making moves to protect their senior citizens. Financial abuse, one of the four types of elder abuse (the other three include sexual abuse, physical abuse and emotional abuse) involves the “illegal or improper use of a senior citizen’s funds, property or assets, as well as fraud or identity theft perpetrated against older adults,” according to the National Conference of State Legislatures. Currently 33 states have laws directly addressing financial abuse of the elder – a nine-state increase since 2015.

wallet-300x225Advocates say that the largest problem with prosecuting financial abuse of the elderly is that it often goes unreported. First, many elderly victims do not even know that a crime has been committed. For example, Mariana Cooper, an elderly widow living by herself, gave a $217,000 loan to a woman who had slyly gained her trust. It was not until six months after she realized she was not going to be repaid that Ms. Cooper alerted the police. Even then, Ms. Cooper only filed a report at the urging of her daughter who, again, only found out until six months after-the-fact. Telling her story to the New York Times, she said she felt because she freely gave the money away that no crime had been committed and she was too ashamed to tell her family how she had been cruelly defrauded.

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With toothless regulations and ineffective oversight, many nursing homes are still failing the neediest patients. With its budget for overseeing nursing homes slashed in half, the Center for Medicare and Medicaid Services (CMS) has failed to identify failing nursing homes and keep them accountable. As a consequence, some nursing homes are choosing to accept the infrequent fines instead of changing their behavior.

helpCMS is responsible for overseeing all nursing homes that receive benefits from these federal entitlement programs. CMS routinely inspects nursing homes for any violations, if a violation is found, then CMS has two options. First, CMS can put the facility on “special focus” status – reserved for the worst offenders. A nursing home with this designation would be routinely inspected more often and, supposedly, would be punished more severely for any violations. Unfortunately, federal budget cuts have blunted the amount of nursing homes that can be put under “special focus.” Since 2012, the budget for inspecting facilities with this designation has dropped by half. Consequently, despite regulators identifying 435 facilities that warranted this designation, only 88 nursing homes were actually put on the watchlist. Further, once a Continue reading

In a new study released by Columbia University School of Nursing, a quarter of nursing homes had a “significant presence” of multidrug-resistant bacteria. The study reviewed eight prior studies, and the reported rates of drug-resistant bacteria ranged from 11 percent to a whopping 59 percent – with 27 percent the average. Multi-drug resistant bacteria are especially dangerous to nursing home patients, where patients frequently have other medical ailments, a weakened immune system, and increased exposure to germs and bacteria. These drug-resistant types of bacteria can cause serious infections such as pneumonia, bloodstream infections and menangitis.

pills8-300x225Unfortunately these results are not surprising. The CDC warns that multi-drug resistant bacteria are on the rise throughout the world, owed largely to the widespread (and commonly unnecessary) use of antibiotics. The once easily-defeated bacteria have adapted and now built a resistance to commonly prescribed antibiotics. Unfortunately, drug makers are also pushing fewer new antibiotics to market. Put together, health experts warn of an impending health crisis. Continue reading

physical-abuse-300x169A Berkshires caretaker has been charged with elder abuse after an 84-year-old man told hospital staff that his two broken ribs were caused by being “thrown around like a rag doll.” The 52-year-old man, Anthony Marcella II, was arraigned in Central Berkshire District Court on charges of assault and battery on a person over 60 or disabled, witness intimidation, caretaker abuse of an elder, and caretaker abuse of an elder causing serious bodily harm. Marcella has pleaded not-guilty to all charges and was released on a bail.

On May 22 or 23, Marcella was allegedly “rough” when picking up the elderly victim (whose name is not provided) after he fell down. According to court documents, Marcella squeezed him in an aggressive manner and proceeded to throw him around “like a rag doll.” The elderly victim suffered two broken ribs as a result of his caretaker’s abusive treatment. Continue reading

On the morning of September 12, 2009, a man (identified only as “Plaintiff”) went missing from Arms Acres, a rehabilitation center for alcoholics. The Plaintiff, in addition to being an alcoholic, also suffered from schizophrenia and bipolar disorder, according to the Court’s decision. Shortly before going missing the Plaintiff became “extremely disoriented, began having hallucinations” and attempted to leave the facility. The Plaintiff apparently succeeded on leaving the facility the next morning – on September 12. Sadly, on October 18, 2009 the Plaintiff’s body was discovered. Continue reading

On June 17, 2013, a patient at Barnabas Nursing Home passed away from complications arising from her pressure ulcers. Her family has sued the nursing home and hospital and believes that their family member received negligent treatment and that the hospital and nursing home should be held responsible for her death. Continue reading

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