Accident and Injury Lawyer Blog

A jury in Massachusetts found that a nursing home was negligent in causing an eye injury, awarding $400,000 for the Plaintiff's pain and suffering during the 45 days between the injury and his death. They did not find that the injury caused his death.

The Plaintiff's nursing home neglect lawyer said he thought the verdict was high given that the victim was so old. This attorney did a great job, I'm sure, securing this verdict and should be commended for taking the case. But I don't think it was a "high" verdict. Who would trade $400,000, that they don't get, to spend their final 45 days in misery?

This nursing home verdict never would have been possible if a trial judge had not vacated an arbitration agreement the patient executed when he was 91 years old and suffering delusions. The nursing home arbitration agreement had sought to prevent his estate from filing a civil suit if killed or injured by the nursing home's negligence.

A lawyer for the nursing home calls the arbitration agreement "voluntary." I could not disagree more.

Here is the story on the case.

There is an interesting article in the University of Illinois Elder Law Journal entitled "Big Brother" and Grandma: An Argument for Video Surveillance in Nursing Homes.

The premise of the article is that video surveillance systems in nursing homes provides additional safety to the nursing home patient and peace-of-mind for family members who have an elderly loved one in a nursing home. The big issue is whether nursing homes are able to refuse care if the family insists on a camera in the patient's room.

Cameras are never the total solution to serious problems in nursing homes that lead to lawsuits. Can they help? Sure. State legislatures should make sure the patients have the right to install cameras in their own rooms. It is fair, it is within their rights as tenants, and it will make patients safer. Nursing homes object largely because they don't like the idea of the evidence that gets accumulated which shows neglect and poor care. The answer to these concerns? Provide better care.

Strong allegations from Florida: a class action nursing home lawsuit claims a Lake Worth nursing home that a engaged in scheme to defraud Medicare and Medicaid and "prey on vulnerable adults."

The lead plaintiff seeks a class action after injuries frequently the subject of nursing home lawsuits: disfiguring ulcers on her heels. The nursing home denies liability but has asked a law firm to investigate the allegations. The ole "I didn't do it but let me investigate whether I did it" plan of attack.

Lake Worth Manor has been a troubled nursing home. It has the lowest possible rating from Florida's Agency for Health Care Administration and has spent 31 days on Florida's watch list. The nursing home's co-medical director, who just stepped down from his position, has a history that, well, let's say it makes you think he should not be running a nursing home.

The lesson, as always: we have to many inadequate nursing home in Florida and throughout the country.

In a case I blogged about back in February, an Illinois woman involved in a lawsuit over the alleged wrongful death of an 89-year-old Alzheimer’s patient has pleaded guilty to criminal neglect, according to the Chicago Tribune.

The victim died of hypothermia earlier this year after wandering out of the Arbor of Itasca nursing home in freezing temperatures. The nursing assistant in charge did not respond when Plaintiff triggered an alarm. A nursing home wrongful death lawsuit is currently pending against the Arbor of Itasca nursing home.

If you need a nursing home lawyer in Maryland or Illinois, call 800-553-8082 or click here for a free consultation.

The Irish Times reports on a study from the National Suicide Research Foundation that found that the experience of being abused in an institution had led to huge anxiety among survivors regarding the possibility of receiving nursing home care in later life.

There is no real legal/nursing home abuse angle to this story. It does underscore, however, how fragile some patients are both physically and mentally went they enter a nursing home which highlights the obligation of nursing homes to provide not only proper but loving care to nursing home patients.

A Chicago nursing home tried to cover up the sexual assault of a 69-year-old resident by another mentally ill resident, a lawsuit filed by family members claims. According to the lawsuit, the Elgin, Illinois nursing home failed to properly monitor young and potentially dangerous residents and tried to pass off the alleged assault as consensual sex. A nursing home lawyer for the family called the incident the most egregious case of nursing home negligence he had seen.

A nursing home lawsuit in Phoenix on behalf of a the family of a man who died in a Phoenix assisted living facility was awareded $11 million in damages. According to the nursing home lawsuit, Liberty Manor Residency failed to properly monitor the man and falsified medical records which, not surprisingly, inflamed the jury.

You can find a story on the case here.

Nursing Home Negligent in Death, Lawsuit Claims

The Chicago Tribune has a story of a lawsuit involving the death of an 89-year-old nursing home resident. In the nursing home neglect lawsuit, the family of woman alleges that staff members at the Arbor of Itasca nursing home failed to investigate when the patient triggered an alarm as she apparently wandered into a courtyard during freezing weather. Suffered from Alzheimer’s disease, she was later found frozen to death.

Nursing home lawyers tend to shy away from cases where the patient is almost 90 years-old. But this case has jury appeal because the facts are so extreme.

Nursing home lawyers focus on the abuse and neglect that patients receive in nursing homes. The social good that derivies from this is that nursing homes have to be mindful that abusing patients comes with a cost.

The New York Times has an article off the radar screen of nursing home lawyers that can be just as awful for nursing home patients: abuse and neglect by family members.

This is hardly "knock me over with a feather" news for nursing home lawyers. Centers for Medicare and Medicaid Services - a federal agency - gave slmost a quarter of our nursing homes the lowest possible rating, under a new ranking system released yesterday. The new five-star system is determined by factors such as staffing and the results of state inspections. The purpose is to simplify for consumers the arduous process of choosing an appropriate nursing homes.

The study also tries to rank nursing homes by state: States with the highest percentage of nursing homes with a one-star ranking were: Louisiana, Georgia, Virginia, and Tennessee. States with the highest percentage of homes with five stars were: Delaware, Alaska, New Hampshire, and Hawaii.

The Medicare website has a pretty neat way of evaluating the different nursing homes. Click here to see how you or your loved one's nursing home fares.

The Los Angeles Times writes this morning about a tragic case in Los Angeles at Martin Luther King Jr.-Harbor Medical Center where an official Los Angeles County assessment has acknowledged for the first time that a woman who died shortly after writhing in pain for nearly an hour on the hospital's waiting room floor would not have died if she had received proper medical care.

The vast majority of medical malpractice cases in Los Angeles occur when doctors who are largely good doctors and good people had good intentions but medical mistakes were made. This is something very different. The only reason this woman's family has a potential wrongful death medical malpractice case is that a security camera videotaped a janitor mopped around the victim while a triage nurse dismissed her complaints.

Sad but true: video cameras and phones are helping make more and more medical malpractice and nursing home claims.

Extendicare, a group of Washington nursing homes, is the defendant in a nursing home lawsuit alleging it took on way too many patients to provide adaquate care. Paintiffs' nursing home also say that Extendicare violated a Washington law that bars nursing homes from making its clients sign a form waiving liability for Extendicare's negligence.

Plaintiffs in this nursing home case a man whose daughter died at Aldercrest Health & Rehabilitation Center in Edmonds and two other residents.

You can find the article here.

The Fifth Circuit U.S. Court of Appeals affirmed the dismissal of nursing home abuse neglect claim because the plaintiff failed to provide 60 days' notice of the intention to file a medical malpractice action against a health care provider as required under Mississippi Code Section 15-1-36(15). This statute requires Mississippi nursing home and medical malpractice plaintiffs to health care provider's sixty (60) days' prior written notice notifying the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

This statute comes from Mississippi’s disastrous tort reform act passed in 2002 that, among other things, establishes a cap on noneconomic damages of $ 500,000 for lawsuits filed before July 1, 2011, $ 750,000 for those filed after July 1, 2011 but before July 1, 2017, and $ 1,000,000 for those filed thereafter.

I do not have a problem with the ruling because it is a correct interpretation of the Mississippi law. But the law accomplishes nothing in this case but to deny a Plaintiff the right to justice.

The family of 75-year-old Wilmington native has alleged evidence of abuse and neglect at a state-run facility. What is interesting about his case is that the nursing home resident's family cared enough to get evidence by way of a "nanny cam." Earlier this summer, the nieces of this woman who is suffering from dementia, diabetes and a bad back, delivered a DVD of several incidents to the Delaware's Division of Long Term Care Residents Protection -- the agency that monitors the welfare of nursing-home residents and investigates allegations of patient abuse.

Unfortunately, not every has a caring family with the time and resources to set up a nanny cam when a nursing home is abusing or neglecting a patient. But maybe we have stumbled onto something here. Would nanny cams set up appropriately by the state help reduce nursing home neglect and abuse?

My two volume treatise Insurance Settlements is now available from James Publishing. The book discusses how to position a lawyer's car accident, truck accident, medical malpractice or product liability case to the best possible settlement at every step along the way (until the state's high court affirms the judgment).

Click on the James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Comments."

A nursing home in Carrollton has been sued for failing to maintain the health and safety standards required by Texas law, according to a lawsuit filed by the Texas Attorney General.

Specifically, the Texas Attorney General's complaint alleges that Brookhaven Nursing Center's failure to have backup safety measures and emergency response protocols was a contributing cause to the death of a patient who died of oxygen deprivation because the patient's oxygen system shut down during a power outage.

It is a sad commentary that Texas now has to rely on the state to bring about justice because there are so few nursing home lawyers left in Texas.

In the past, Virginia nursing home lawyers have been able to convince Virginia circuit judges to reject the efforts of allegedly negligent nursing homes to force Virginia nursing home claims into binding arbitration. Must more nursing homes are making patients sign these agreements not to arbitrate, according to Virginia Lawyers Weekly. The paper quoted Lauren Ellerman who handles nursing home cases in Roanoke to say that she believes that "at least 75 percent of Virginia nursing home contracts have arbitration agreements in them today.”

Unless Congress grabs this issue from the states we can expect this issue to rise in Virginia nursing home cases in the future.

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.

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.

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.