Medical Malpractice

October 9, 2020

Do “No Harm” Citations Adversely Affect Nursing Home Accountability?

by Law Offices of Thomas L. Gallivan, PLLC

A new edition of the Long Term Care Community Coalition Elder Justice Newsletter asks a simple question: does providing a nursing home resident breakfast in their soiled bed constitute harm? How about failing to provide a stop date for a resident’s psychotropic medication?

“No Harm” deficiencies refer to citations of rule violations at nursing homes in which health inspectors determined that the violations caused “no harm” to residents. As the LTCCC notes, data provided by the Centers for Medicare & Medicaid Service, which mandate minimum standards of care for nursing homes participating in their programs, show that more than 95% of nursing home health citations describe “no harm” deficiencies. The LTCCC argues, however, that these no harm citations reflect systemic failures to recognize the suffering of nursing home residents, which in turn results in systemic failures to hold nursing homes accountable through financial penalties. “In the absence of a financial penalty,” the newsletter states, “nursing homes may have little incentive to correct the underlying causes of resident abuse, neglect, and other forms of harm.”

The newsletter proceeds to provide instances of health violations in which regulators determined that no harm was done to the resident in question. For example:

October 8, 2020

Oklahoma Cracks Down on Antipsychotics in Nursing Homes

by Law Offices of Thomas L. Gallivan, PLLC

Oklahoma’s new elder abuse law cracks down on the use by nursing homes of “chemical restraints” on their patients. According to America Nurse Today, chemical restraints are unnecessary medications used to “restrict a patient’s movement or behavior.” Importantly, these chemical restraints are not a part of a standard approved treatment. Most commonly, nursing homes use antipsychotic medications – powerful psychotropics with a variety of side effects, drug interactions, and risks.

While it is undoubtedly immoral and unethical to force someone without a proper diagnosis to take powerful mind-altering medications just to make them more compliant with nursing staff, the practice is sadly very common. According to Health Affairs, 14 percent of all nursing home patients are on an antipsychotic. The industry watchdog estimates that 83 percent of these prescriptions are for an unapproved or off-label use. A report by the Centers for Medicaid and Medicare Services found that 40 percent of nursing home residents on antipsychotics do not have a diagnosis of psychosis.

To counter the scourge of chemical restraints meant to make elderly residents docile, Oklahoma is cracking down on the nursing homes. Under Oklahoma’s new law, a doctor must conduct a medical exam, diagnose the patient, and obtain informed written consent from the nursing home resident or their caregiver before writing a prescription for antipsychotics. After passing the law, Oklahoma’s governor noted that the state with the most nursing home residents on antipsychotics (20 percent) will now have the toughest law against it.

October 29, 2019

Senate Releases List of 400 Troubled Nursing Homes

by Law Offices of Thomas L. Gallivan, PLLC

Senators released a list of 400 nursing homes with a ‘persistent record of poor care,’ according to the federal legislators. These nursing homes are not included in the federal government’s “special focus facilities” a list of nursing homes released by the government each year indicating poor care and unsafe conditions. According to the Senators, the list of 400 facilities is “virtually indistinguishable” from special focus facilities and the elder care facilities are not all lumped together only because a 2014 law imposed a cap on the number of so-called special focus facilities. Consequently, this left 400 facilities subject to heightened government scrutiny without public knowledge.

According to the Centers for Disease Control and Prevention, approximately 1.3 million Americans are nursing home residents at 15,600 facilities across the country. The federal government identified 3 percent of these nursing homes as problematic in April. In New York, these nursing homes include New Roc Nursing and Rehabilitation Center in Rochester, The Knolls in Valhalla, and Cayuga Ridge Extended Care in Ithaca, according to LoHud.com. In addition to these nursing homes, fourteen other New York long-term care facilities were included in the list of 400 released by the Senate.

October 23, 2019

New York Nursing Home Fined 50k for Medication Error

by Law Offices of Thomas L. Gallivan, PLLC

The federal government fined a Buffalo nursing home $47,827 for erroneously administering insulin to a resident. According to The Buffalo News, the fine against Humboldt House represents the sixth largest in New York for 2018. The newspaper reports that a physician at the nursing home administered insulin to a diabetic resident in February 2018 despite a hospital discharge report warning the nursing home staff to “PLEASE AVOID GIVING THIS PATIENT INSULIN” – in all capital letters.

The nursing home resident, who was not named by the newspaper, was found unresponsive multiple times over the next few days. After reviving the elderly woman with medication and fruit juice, the nursing home finally realized its mistake. Federal officials determined this medication error caused “actual harm” to a patient, the most serious type of violation for a nursing home.

October 21, 2019

Trump Administration Seeks to Weaken Regulation on Antipsychotics in Nursing Homes

by Law Offices of Thomas L. Gallivan, PLLC

As part of a broader push to deregulate the nursing home industry, the Trump administration has proposed rolling back regulations on antipsychotic use in nursing homes. Under current nursing home regulations, doctors who prescribe antipsychotics to the elderly on an “as needed” basis may only write a prescription for 14 days. At the end of 14 days, the physician must reexamine the nursing home patient and write another prescription, if necessary. The Centers for Medicare and Medicaid Services (CMS) is proposing new regulations that would change the 14-day window to 70 days.

Antipsychotic use in the elderly has remained unnecessarily high and controversial, with public health experts and elder care advocates describing the practice as elder abuse. According to these experts, nursing homes who put their residents on antipsychotics lack a valid medical reason and are simply drugging these patients. Antipsychotics, such as Seroquel and Zyprexa, commonly sedate patients, especially at higher doses. In addition to doping up the residents, these mind-altering drugs also have serious side effects. The medications commonly interact with other drugs and increase the risk of everything from slip and fall accidents to death.

October 16, 2019

75 Percent of Nursing Homes Understaffed

by Law Offices of Thomas L. Gallivan, PLLC

Almost three-fourths of nursing homes in the United States “almost never” have the minimum number of nurses on staff, according to McKnight’s Long-Term Care News. The new study, which utilized a year of payroll data, found that 75 percent of facilities self-reported a number of nurses that are “almost never in compliance with” the federally required minimums. The study was produced by researchers at Harvard University and Vanderbilt University who then published their findings in Health Affairs.

The study comes on the heels of new federal guidelines on reporting nursing staff. Previously, nursing homes would provide a sample of their time-sheets to local regulators when their facility was inspected. Unfortunately, nursing homes commonly knew when inspections would occur and would respond by increasing the number of nurses on staff in the weeks before an inspection. Further, local regulators – who are typically from the state’s health department – did not always scrutinize or authenticate the time-sheets provided by the nursing home. For these reasons, the federal government created a computer system that requires nursing homes to upload payroll information on staffing levels. This new system benefits from live-updates and 24/7 monitoring of the nursing home.

October 7, 2019

Employees Steal 750k from Nursing Home Resident

by Law Offices of Thomas L. Gallivan, PLLC

Employees at an Illinois nursing home stole more than $750,000 from a 96-year-old woman, according to The Chicago Sun Times. After the appalling theft, the thieves are now trying to delay the nursing home patient’s lawsuit trying to recover the stolen funds. According to attorneys for the elderly woman, the former nursing home employees are deliberately stalling in hopes that the woman passes away before the lawsuit’s conclusion. “I think they’re hoping they’ll get off the hook if she dies,” Cook County Public Guardian Charles Golbert told the Chicago newspaper. Because the nursing home resident, whose name is Grace Watanabe, does not have a spouse or any children, the money was willed to two non-profits in the local area. If Watanabe were to pass away before the conclusion of the lawsuit then those organizations would have the legal right to “step in” to her shoes and finish litigating her civil lawsuit.

The judge overseeing the case is to frustrate the nursing home’s attempts at delaying the case. Last week, the judge imposed a $400 fine as part of a contempt order aimed at executives of Symphony Residents of Lincoln Park. These executives are refusing to sit down for a deposition and answer questions about the treatment of Grace Watanabe. The employees who are accused of stealing money from Watanabe, who is diagnosed with advanced stage dementia, have invoked their Fifth Amendment right against self-incrimination when asked about the alleged crimes over the past few months. Criminal charges are expected to be filed against the fraudster in the next few weeks, according to Cook County District Attorneys.

The illegal scheme to defraud Watanabe was discovered by federal authorities after the bank alerted them of suspicious withdrawals coming from the nursing home resident’s bank account. Unfortunately, this type of financial fraud is a common form of elder abuse, which has been on the rise across the country and remains sadly under-reported. Employees of a nursing home or caretakers discover the financial information of an elderly person, typically with limited cognitive abilities, and then take advantage of their position of trust by swindling the person out of their money. In this instance, it appears the lowlife criminals will not be able to get away with it, though. In addition to the $400 daily fine, which the nursing home says it will appeal, an entire community of Japanese-Americans have rallied support for Watanabe and promise to keep her case in the spotlight and hold the thieves responsible, whether Watanabe lives to see that result or not.

September 21, 2019

Westchester Doctor Convicted for Stealing 540k from 97-year-old

by Law Offices of Thomas L. Gallivan, PLLC

A Westchester doctor was convicted of stealing over half-a-million dollars from an elderly woman. According to LoHud.com, physician Peter Corines of Eastchester stole the massive sums from a 97-year-old woman over just a two-week period in November 2017. The jury convicted the disgraced doctor of three felonies stemming from the stolen money and stolen identity that Dr. Corines used to swindle the elderly woman. After being convicted on all counts, the judge sentenced Dr. Corines to three years in prison and told him he “was a disgrace to a noble profession.”

In the criminal complaint, prosecutors said Dr. Corines befriended the 97-year-old and then quickly moved to rob and defraud her of her wealth. The doctor obtained power of attorney from her and quickly emptied her accounts. The shameless doctor also impersonated the woman and opened mutual funds and requested checks in her name. With just a couple weeks, the woman’s entire wealth had been siphoned away by Dr. Corines. Prosecutors say the doctor swindled the senior citizen to pay off personal debts incurred from a failed yacht repair business. When police officers arrested the doctor on April 2018, the doctor only had $11,000 left of the woman’s money.

December 25, 2018

Criticism Grows Over New York Department of Health’s “Oversight” of Nursing Homes

by Law Offices of Thomas L. Gallivan, PLLC

Only two weeks after putting a Buffalo nursing home under conservatorship, the New York Department of Health announced that Emerald North and Emerald South Nursing and Rehabilitation Center will be closing their doors. The closure follows a long line of missteps and scandals by the formerly for-profit nursing homes, according to The Buffalo News. In the last year, an elderly woman was beaten to death in the facility’s dementia unit and another nursing home resident died after falling from a third-story window. The two nursing homes, which are owned by the same for-profit organization, were fined over $100,000 in 2017 for not maintaining accurate records on whether patients wanted to be revived in the event of a medical emergency. Tragically, the nursing home’s gross misstep was only discovered after a revived patient was found to have a “do not resuscitate” order.

The nursing homes, which have below average ratings by Medicare, continued to operate with the blessing of the Department of Health for almost an entire year after these scandals. Last month, the Department of Health finally appointed Grand Healthcare System as the nursing homes new operator. At the time of the government agency’s appointment, nursing home residents and their families criticized the appointment of another for-profit nursing home system. Their concerns proved well-founded when Grand Healthcare System announced it would be shutting down both nursing homes and opening new facilities under a different name.

December 21, 2018

After “Horrifying” Report, Veterans Demand Improved Care at VA Nursing Homes

by Law Offices of Thomas L. Gallivan, PLLC

Following several scathing investigations and reports, veterans’ groups are demanding better care at the nursing homes run by the beleaguered Department of Veteran Affairs. While public condemnation has mounted for the past few years over the VA’s ability to care for the country’s 20.4 million veterans, criticism of the nursing homes run by the government agency began last summer when a report found that 70 percent of the VA’s nursing homes received failing grades. Perhaps even worse, more than half of these nursing homes received the lowest grade possible. According to news organizations, the government has collected quality reports and grades for each nursing home run by the federal agency each year. Until the rankings leaked this year, the government had chosen not to publish the results.

In a follow-up investigation reported by The Boston Globe this week, news reporters found a VA nursing home filled with sleeping staffers and a closed cafeteria. Other examples the substandard level of care found at VA nursing homes include a veteran with undiagnosed scabies, a veteran who had sat in soiled sheets for hours, and a veteran writhing in pain because he had not received his scheduled medication, according to USA Today. The national newspaper also reported that a nursing home in Alabama declared a Navy Veteran dead after he simply walked out of a supposedly secure nursing home one night and did not return. Rege Riley, national commander of American Veterans, told USA Today that the “stories being reported about the treatment of some individual veterans at these facilities are nothing short of horrifying.”