Accident and Injury Lawyer Blog

The Legal Medicine Blog (Dan Frith and Lauren Ellerman of the Frith Law Firm in Roanoke, VA) have a good blog post today on a pressing issue for nursing home lawyers and their clients: whether mandatory arbitration clauses should be enforced in nursing home cases.

In recent years, nursing homes not only in Maryland and Virginia but around the country have been requiring patients to sign mandatory arbitration clauses before admitting patients. Of course, this stacks the deck against the patient because, among other reasons, it limits discovery into just how awful the nursing home is to its patients generally and the plaintiff in particular.

Many people never see this clause because they rarely read the small print. If they do, think think of the Hobson's choice given to these patients and their families. They can either hope for the best (don’t we always do that walking through the door?) and just waive the right to receive a fair shot at receiving compensation for the negligence of the nursing home or they can go look for a nursing home that does not have an arbitration clause. But, realistically, the decision to choose the nursing home is already made before they get to the arbitration clause.

Hopefully, help is on the way. Congress is looking at this issue. Rep. Linda Sánchez from California has offered a bill that would void any mandatory arbitration agreement executed by a nursing home resident. Not so coincidentally, Rep. Sánchez father recently went to a nursing home.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: California , Maryland , Nursing Home Abuse , Virginia

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Chicago lawyer Louis Cairo has filed a wrongful death lawsuit against a Cook County nursing home, alleging that the nursing home employees were woefully ill-equipped, causing the death of a 67 year-old man. The lawsuit alleges that staff members at Hampton Plaza Health Care Centre on 9777 Greenwood Avenue did not have the necessary training or equipment to adequately respond to a fire. The Plaintiff’s nursing home lawyer said that residents were awakened not by smoke alarms, but by people banging on doors to alert others of the fire. This is not exactly a sign of effective smoke detectors.

If you substitute the word “nursing home” for “restaurant” in this story, it would make me skeptical as to whether the restaurant was negligent, as opposed to a plaintiffs’ lawyer trying to manufacture a case because he has a death case (probably a high profile death case, as many fire deaths can be). Because it is a nursing home, I find myself nodding along, “Yes, they didn’t have fire detectors. That sounds about right.” I don’t think I’m alone. That is a sad commentary on nursing home care in this country.

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Posted In: Illinois , Nursing Home Abuse

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Missouri Lawyers’ Weekly reports on a nursing home case involving a respiratory therapist who allegedly caused the death of a 79 year-old resident at Scenic View Nursing in Herculeaneum, Missouri. The respiratory therapist had a suspended license and was charged with second degree involuntary manslaughter in connection to the patient’s death. He entered an Alford plea and was sentenced to four years in jail.

Additionally, the therapist had been previously reprimanded four times for removing residents from oxygen without an order. His last reprimand was six months before the patient’s death. His supervisor said he was a danger to residents and was terminated. It gets better. He also pled guilty to the unlawful sale of Oxycontin to an undercover officer. It gets even better. He told the police officer who arrested him, "I know what this is about. It's about that old lady. I guess she thought she would live forever." This came out in the nursing home negligence trial.

If you are a nursing home lawyer, you are thinking one thing: I can’t lose this case. Obviously, I don’t have all of the facts. But apparently, in spite of all of this, the jury did not believe the doctor who said that he did not order the ventilator turned off, even though an eye witness recalls the order. One more dose of incredible: the doctor was the owner of the nursing home. But for whatever reason, perhaps tactical reasons that one cannot gather from a media report of the story, the plaintiff’s nursing home lawyer did not bring a malpractice action against the doctor.

The nursing home’s lawyer, Stephen M. Strum with Sandberg, Phoenix & von Gontard, P.C., in St. Louis, who tried the case with Veronica Armouti, seemed stunned by the outcome. The article said that Strum was surprised that he was able to overcome all of these issues. How often do you hear that? (If I were the Plaintiff’s nursing home lawyer, I would include the article in my motion for new trial, which is exactly the article indicated Leonard Cervantes, the Plaintiff’s lawyer, will seek.)

After the case, the lawyers could not even agree on the last pretrial offer and demand. Mr. Cervantes, the Plaintiff’s lawyer, said his demand was $300,000 and the last offer was $10,000. The defendant’s lawyer claimed the last demand was $1.5 million and the last offer was $30,000.

Although Missouri Lawyers’ Weekly called it a “defense verdict” it appears the jury actually rendered a 12-0 verdict in favor of the plaintiff for $26,401, the amount of the medical expenses in the case.

Obviously, you can never tell just how difficult a case was by reading an article about the trial after it happened. I’ve read article about my trials that did not resemble the trial at all. But you can bet that a lot of nursing home insurance companies are going to be dialing Steve Strum’s number in the years to come.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Missouri , Nursing Home Abuse

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ABC24 in Memphis, Tennessee reports that three nursing homes in Tennessee have been fined and suspended from accepting further admissions.

Tennessee Department of Heath officials have fined and suspended admissions of residents to Dove Health & Rehabilitation in Collierville, Claiborne County Nursing Home in Taxwell, and Hillcrest-West Nursing Home in Knoxville for a variety of infractions.

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Posted In: Nursing Home Abuse , Tennessee

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The University of California San Francisco reported that two years after California the state passed legislation increasing reimbursements from Medi-Cal, average nursing home income from the state's healthcare program went up to $152 from $124 daily. But average spending on direct patient care went down by 3.6 percent and, not surprisingly, complaints of patient mistreatment proven went up by 36 percent. The study discovered 16 percent of nursing homes in the state failed to measure up to California's minimum staffing benchmarks.

The average nursing home netted $248,047 in 2006, a 233% increase from 2004. Charlene Harrington, the California studies lead author, told the Los Angeles Times, "They got so much money, they should have been able to do something."

You would think.

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Posted In: California , Nursing Home Abuse

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We wrote last month about conditions at an Ohio nursing home named Westside Health Care. It was one of the worst cases of inadequate care our nursing home lawyers have ever heard. After a police inspection/raid, one police officer called the conditions at this Ohio nursing home as "worse than any crack house that they'd ever seen." That paints a pretty clear picture I think.

Typically, the silver lining in this kind of cloud is that is people shape up and get their act together. That has to be the way it works. Right? Well, police this week raided this Ohio nursing home for the second time in just over a month.

At some point, the state of Ohio has to take over this nursing home until these patients can be transferred elsewhere. There is just no other choice.

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Posted In: Nursing Home Abuse

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The West Virginia Record has an editorial about how the three of the top verdicts in the country came from West Virginia and derided plaintiffs’ lawyers as “tort barons” destroying industry in West Virginia and through the country.

Okay, the problem is West Virginia personal injury lawyers (tort lawyers). Just for fun, let’s look at the fact and see about all of these tort claims. The big verdict was a $404 million award in Roane County v. Columbia Natural Resources. In that case, 10,000 other royalty owners who questioned the price they were being paid for natural gas produced from their property. This is not a tort claim. This is a company stealing from people. Exactly how should such a claim be handled? Should the plaintiffs have allowed this to go on without question for the “good of industry?” How many folks on the Editorial Board of the West Virginia Record would have refused payment if they were in the class? It is just plain silly.

The second case cited, a $251 million verdict against Du Pont in Clarksburg was not a personal injury case but a lawsuit over Du Pont’s handling of the environmental cleanup created by a West Virginia zinc-smelting facility. This is was not a single insured person. This was a lot of people who had been hurt by a very large company in a case where the jury found they did not give due consideration to the environment or the surrounding property owners. Approximately 7000 people suffered harm to their property and we subjected to significant health risks. What would the Editorial Board of the West Virginia Record do if they sat on the jury in this case?
The final verdict in the top 10 was a $219 million verdict against Massey Energy. The Plaintiff was another big company who was suing for breach of contract. Perhaps if one big company breaches a contract against another big company, they should not be able to sue for breach of contract. Wonderful logic.

This West Virginia Record’s editorial is pathetic. I could argue their position better than they did. There is an intellectual argument that can be made calling some aspect of our tort system in question. I don’t agree this argument – I think it is dead wrong - but it can be made based on facts and it held by reasonable people. This argument is just plain silly and is an embarrassment to the West Virginia Record and the people it has misled.

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Posted In: Car Accidents , Medical Malpractice , Nursing Home Abuse , Product Liability , Truck Accidents , West Virginia

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Oklahoma does not require nursing homes licensed in Oklahoma to carry insurance. Oklahoma State Senator Richard Lerblance submitted this session a bill requiring nursing homes to carry liability insurance. The Journal Record (OK) quotes an opponent as saying, “Would you rather take care of the patient or pay liability insurance? With low reimbursement rates, it’s almost impossible to do both.”

What a false choice. If you cannot make a profit and still pay for insurance, you should get out of the business because you are not running a profitable company.

How can it possibly make sense that auto insurance is mandatory but medical malpractice insurance and nursing home insurance is not mandatory?

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Nursing Home Abuse , Oklahoma

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People who live or have loved ones who live at Westside Health Care and Nursing Home, a long term care nursing home that recently received a surprise inspection, will have to wait a little longer before receiving the Cincinnati City Council’s health committee has been canceled report on how Westside Health Care and Nursing Home is caring for its patients. A report had been expected today, according to the Cincinnati Enquirer.

Cincinnati police described conditions at the Westside as “deplorable,” and reports showed residents living with fleas, flies and filth. Residents told police that laundry had not been done in three months. In the affidavit filed to secure the search warrant, Cinncinnati Police Office Aaron Layton said wrote that the conditions presented "a safety, health and fire hazard to the occupants of the premises and surrounding properties." Upon inspection, according to the Cinncinnati Enquirer, a fire door tied shut, accumulation of vomit was in an entryway, smoking was permitted near oxygen tanks, the sprinkler system did not work, and there were loads of structural defects.

When I was a kid, I was bouncing around in the back of my parents car without a car seat in sight. Today, that is child abuse but it was normal back then. If you are wondering what was seem awful 10 years from now, I think it will be the way we treat our elderly. I don't think the Westside Health Care and Nursing Homes of the world will exist in 10 years.

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Posted In: Nursing Home Abuse , Ohio

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According to the Centers for Medicare and Medicaid Services, anti-psychotic drugs were prescribed to 26% of nursing home residents without a diagnosed psychotic or related condition, in other words, off label prescriptions to sedate patients that may or may not need it. Connecticut was second only to Louisiana in dispensing such medications.

Nursing homes in Connecticut and elsewhere are prohibited by federal law from dispensing medications for the purposes of discipline or convenience of the nursing home. (I don't know about you but it depresses me that anyone would think to give an anti-psychotic drug as as discipline.) This has not stopped a lot of nursing homes from dispensing these drugs for reasons that having nothing to do with the patient's best interests.

In Connecticut, I would keep a close eye on Chelsea Place Care Center in Hartford and Wethersfield Health Care Center in Wethersfield two facilities that have had problems but are beginning to improve, according to the federal government.

A recently released federal report shows that

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Posted In: Connecticut , Nursing Home Abuse

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The TortsProf Blog reports that state legislatures in Colorado and Oregon are considering increases to their caps on noneconomic damages. Colorado is currently debating a bill that would raise the cap on noneconomic damages in medical malpractice cases from a measly $300,000 to a less measly, but still ridiculously low, $450,000. The bill was voted out of committee on Monday and will now be sent to the Senate floor for debate. The details are here.

Oregon is wrestling with a last year’s Oregon Supreme Court ruling that caps on damages payable by the state was unconstitutional as applied. The task force has been set up in Oregon to study the issue of raising the cap on noneconomic damages.

In the history of caps on noneconomic damages, the door has swung only one way - toward adding caps or decreasing the amount of the cap. Hopefully, this news for the clients of personal injury lawyers, that the door will begin to swing in the other direction.

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Posted In: Car Accidents , Colorado , Medical Malpractice , Nursing Home Abuse , Oregon , Product Liability , Truck Accidents

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The Ohio Supreme Court has concluded that Ohio’s statutory caps on damage awards in personal-injury lawsuits are constitutional in a 5-2 decision today.

Like most states with caps, the cap applies to pain and suffering damages and other intangible injuries. The Ohio cap is particularly restrictive: $350,000 unless the injured person lost a limb or bodily organ. Ohio also has a punitive damages rule that restricts punitive damages to twice the amount of damages awarded as the judge or jury awards in compensation for the plaintiff’s injuries, minus any reductions as a result of the cap on pain and suffering damage. (Actually, the formula is a little more complicated than that but this is the gist of it.)

In this case, the plaintiff filed a product liability case against Johnson & Johnson claiming she suffered blood clots as a result of having used the Ortho Evra Birth Control Patch, a hormonal birth-control patch.

Two justices dissented. Justices Paul E. Pfeifer wrote that, "Today is a day of fulfilled expectations for insurance companies and manufacturers of defective, dangerous or toxic products that cause injury to someone in Ohio… But this is a sad day for our Constitution and this court. And this is a tragic day for Ohioans, who no longer have any assurance that their Constitution protects the rights they cherish."

Interesting, Justice Pfeifer also noted that in deciding to cap damages, the Ohio legislature relied on studies which were not "peer-reviewed" or "published in a scholarly journal." While this might not be a reason to ignore the legislative intent, because presumably the legislature can decide what they decide for any reason they want, it does underscore the faulty data that insurance companies and big business uses to rig or construe the data in such a way to create a crisis when one does not exist. For a great example of this from medical malpractice insurers, click here.

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Posted In: Car Accidents , Medical Malpractice , Nursing Home Abuse , Ohio , Product Liability , Truck Accidents

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