Articles Posted in Medical Malpractice

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.
Continue reading

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.”
Continue reading

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

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

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 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

On February 27, 2008, a nursing home resident (whose name is not listed) at Sunrise Manor Center for Nursing and Rehabilitation passed away. The nursing home resident had only been at the center since February 19 – a mere 8 days. The cause of death was listed as septic shock – a condition where an infection is so serious that the body’s organs shut down. The nursing home resident’s family (Henry) proceeded to sue Sunrise Manor Center to recover damages based on the liability theories of: medical malpractice, wrongful death, violation of the Public Health Law, and negligent hiring and retention.  Sunrise Manor petitioned the court to dismiss all allegations against it. On February 1, 2017, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department issued its ruling.

On the liability theory based on medical malpractice and wrongful death, Sunrise Manor must prove that either (1) there was no departure from “accepted medical practice”, or (2) if there was a departure, that the departure did not cause the resident’s death. Sunrise Manor provided expert testimony that there was no departure from the accepted standard of care. The resident’s family offered rebuttal expert testimony opining that the accepted standard of care was deviated by (1) failing to inform the resident’s physician of a high fever, and that (2) the failure to inform the physician led to the resident’s untimely death. The Court decided that there was a “triable issue of fact” – meaning that a jury (and not the judge) would decide whether Sunrise Manor had committed medical malpractice and therefore enabling the family to recover damages on the legal theory of “wrongful death.” Continue reading

The family of an infant child filed a lawsuit after the loss of their newborn in February of 2014 after emergency medical technicians and doctors made a series of medical errors, resulting in the infant’s death.

On January 3, 2014, Sara Keenan breastfed her newborn baby Lana and put her down for a nap; an hour later her husband, Padraig Kennan, went to check on the newborn and found her choking on her own vomit. A houseguest who worked as an EMT was able to revive Lana and the family was able to call 911; this phone call would change their lives forever.

Exchange Ambulances of the Islips transported the infant to Southside Hospital in Bay Shore, an hour away from their home; the infant could have been taken to Good Samaritan Medical Center or Stony Brook University Hospital, both closer to the family’s home and equipped with pediatric intensive care units. In addition to the lengthy transport, EMT’s failed to intubate the baby, give her oxygen or wrap her in an effort to protect her from the cold on the walk to the ambulance parked four doors away.

Continue reading

The shift change is one of the most crucial times of day at a hospital or nursing home.  At its best, it is the time when nurses from the outgoing shift and the incoming shift communicate with each other to ensure they stay on the same page with respect to the patient’s needs and any changes in needs or behavior.   At its worst, it either does not happen at all or when it happens, the appropriate information is not exchanged, which can result in errors and oversights in care. The traditional shift change consisted of nurses conferring in the hallway outside of patients rooms or at the nurse’s station and in some instances, writing up a medical report for the next nurse to read; these methods can result in important information to be left out. Hospitals in Washington are implementing a new method of shift change in order to prevent these occurrences, called bedside shift reports.

bedside reporting

Studies have shown that bedside shift reports make patients feel safe, included, and satisfied. During bedside shift reports, both nurses meet with the patient to handover information from the previous shift. This method helps nurses to communicate better with one another, as well as the patient and the patient’s family. In addition, this method also helps to prevent falls and other injuries. Beverly Johnson, CEO of the Institute for Patient and Family Centered Care in Bethesda, Maryland stated this method is a simple way to ensure that accurate information is passed on and that both nurses understand the care plan for each patient. Continue reading

Attorney General Eric T. Schneiderman announced new agreements with Auburn Community Hospital in Auburn, New York and Our Lady of Lourdes Memorial Hospital in Binghamton, New York, which will assist in supporting equal access to healthcare in terms of language assistance and financial aid, as both hospitals aid diverse communities.  Implementing new policies will ensure that hospital services are available to all regardless of limited English proficiency or an inability to pay.

According to the 2013 Census, roughly two and a half million New Yorkers did not speak English as their primary language and have a restricted ability to read, write, or understand English.  Binghamton, New York has a population of 44,562 over the age of five, 13.7% of whom speak a language other than English as their primary language and 5.4% who do not speak English “very well”.  2013 Census records also suggest that 10.1% of Binghamton’s population did not have health insurance and demonstrated that between 2012 and 2013, 33.3% of Binghamton residents lived under the federal poverty level. The 2013 Census figures for Auburn, New York demonstrated that 6.9% of its residents do not speak English as their primary language and 2.8 % speak English less than “very well.” Auburn residents who had no health insurance constituted 11.3% of the city’s population, while 20.0% were living under the federal poverty level. Continue reading

Contact Information